Ghaleb Nassar Al Bihani v. Barack Obama, President of the United States, et al.

Court	Court of Appeal for the District of Columbia, United States
Case number	09-5051
Decision title	Appeal from the United States District Court for the District of Columbia on Petition for Rehearing En Banc
Decision date	31 August 2010
Parties	Ghaleb Nassar Al-Bihani Barack Obama Robert M. Gates Army Brigade General Jay Hood Army Colonel Nelson J. Cannon
Categories	War crimes
Keywords	jurisdiction, Non-international armed conflict, war crimes
Links	Appeal on Petition for Rehearing En Banc
Other countries involved	Afghanistan Cuba

Summary

Al Bihani, Yemeni citizen and Saudi Arabian national, travelled to Afghanistan in May 2001 on jihad (holy war). He became a member of the 55^th Arab Brigade and, by his own admission, acted as a cook. The Brigade carried out a number of operations in support of the Taliban against the United States and its allies in the Northern Alliance. Al Bihani was transferred to the custody of the United States Armed Forces and thereafter to Guantanamo Bay following the surrender of his unit. Alleging the illegality of his detention at Guantanamo, al Bihani petitioned the District Court for the District of Columbia for a writ of habeas corpus. His petition was denied on the grounds that he was an “enemy combatant” within the meaning of the definition of such decided by the Court in its earlier case of Boumedienne v. Bush. On appeal, the Court of Appeals for the District of Columbia dismissed Al Bihani’s appeal.

Al Bihani appealed the decision arguing that he was entitled to a rehearing. A seven-member panel of the Court of Appeals for the District of Columbia denied the rehearing and upheld the decision that international law does not limit the President’s powers of detention and consequently al Bihani’s detention is lawful. However, all seven Circuit judges appended opinions demonstrating the importance of the question at hand and their separate reasoning.

Procedural history

Al Bihani, the Petitioner, is a Yemeni citizen and a Saudi Arabian national.

In May 2001, he left his home in response to a fatwa (religious decree) issued by a local Sheikh in order to fight jihad (holy war) in support of the Taliban against the Northern Alliance. Once in Afghanistan, the Petitioner allegedly received military training at an al Qaeda camp and then joined a military unit. That military unit engaged in operations against the Northern Alliance near Khwajeh Ghar, Afghanistan.

In November 2001, the Petitioner and his unit retreated after the initiation of bombing by the United States and its allied forces. They regrouped at a guest house near the Pakistani border and eventually surrendered to a Northern Alliance commander.

In June 2002, the Petitioner was transferred to the custody of the United States Armed Forces and thereafter to Guantanamo Bay, Cuba.

On 30 June 2005, the Petitioner filed his habeas corpus petition with the Court alleging the illegality of his detention.

By a decision of 28 January 2009, the District Court for the District of Columbia denied the petition on the grounds that Petitioner was an enemy combatant and was therefore lawfully detained. On appeal, the Court of Appeals for the District Court of Columbia Circuit dismissed the Appellant’s appeal.

Related developments

As of 12 November 2012, the Appellant has been held at Guantanamo for 10 years and 10 months.

On 15 May 2014, the Obama administration’s Periodic Review Board, by consensus, determined continued law of war detention of the detainee is no longer necessary to protect against a continuing significant threat to the security of the United States and approved Mr. Al Bihani for transfer from Guantanamo.

Legally relevant facts

Since May 2001, al Bihani was a member of the paramilitary group, the 55th Armed Brigade unit, which was affiliated with the Taliban and served therein as a cook. His unit carried out a number of military operations against the United States and the Northern Alliance (pp. 2-3, Appeals Opinion January 2010).

Core legal questions

Are the President’s powers of detention under the 2001 Authorisation to Use Military Force curtailed by international law?

Specific legal rules and provisions

2001 Authorisation to Use Military Force.

Court's holding and analysis

A rehearing en blanc is granted when a panel hearing creates a conflict with Supreme Court or Court of Appeals precedent, or when a case presents a question deemed exceptionally important. None of these criteria are met in the present appeal by the Court considers it nonetheless important to clarify the law in relation to the relationship between the Authorisation to Use Military Force (AUMF) and international law (p. 2).

Nothing in the Constitution compels international law to be domestically incorporated. Indeed, the Constitution entrusts the President with the conduct of war and not the judiciary. It is therefore not the role of the judiciary to circumscribe limits on the President’s powers of detention by reference to international law, a body of law that if not expressly incorporated into domestic law, are not part of the law enforceable before the federal courts (pp. 6-9).

International law cannot be used to interpret the AUMF. The only generally applicable role for international law in statutory interpretation is in the interpretation of ambiguous statutes so as not to conflict with international law (pp. 10-11).

There is no indication that the AUMF placed any international legal limits on the President’s discretion to prosecute the war on terrorism (p, 13). Therefore, the President’s powers under the AUMF are taken in their traditional sense conferring wide discretion on the President (p. 14).

Further analysis

C.M. Venter, 'Old Wineskins – Bitter Wine: The Inappropriate Use of the Balancing Metaphor in the Hamdi and Al-Bihani Cases', 2010;
J. Hafetz, 'Calling the Government to Account: Habeas Corpus after Boumedienne', 2011;
J.J. Paust, 'Still Unlawful: The Obama Military Commissions, Supreme Court Holdings, and Deviant Dicta in the D.C. Circuit', Cornell International Law Journal, 2012, Vol. 45, No. 2;
L. Marie Olson, 'Guantanamo habeas Review: Are the DC District Court’s Decisions Consistent with IHL Internment Standards?', Case Western Journal of International Law, 2009, Vol. 42;
C. Waring, 'The Removal of International Law from Guantanamo Detainee Litigation: Problems and Implications of Al-Bihani v. Obama' (see also here), Georgetown Journal of International Law, 2011-2012, Vol. 43, pp. 927-958.

Instruments cited

United States Authorization for Use of Military Force (AUMF), Public Law No. 107-40 (115 Stat. 224) of 2001.

Related cases

US District Court for the District of Columbia, Ghaleb Nassar Al Bihani, Petitioner, v. Barack H. Obama, et al, Respondents, Civil Case No. 05-1312 (RJL), Memorandum Order, 28 January 2009;
US Court of Appeals for the District of Columbia Circuit, Ghaleb Nassar Al Bihani v. Barack Obama, President of the United States, et al., No. 09-5051, Appeal from the United States District Court for the District of Columbia, 5 January 2010.

Additional materials

A. Scheinkman et al., 'Guantanamo Docket: Ghaleb Nassar al Bihani', New York Times.
T. Joscelyn, 'Transnational Absurdity', The Weekly Standard, 1 September 2010.