…by Meg White
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Was Yesterday’s Habeas Corpus Ruling in Al-Bihani v. Obama a Victory For Bush’s DOJ?
Categories: Commentary, Justice

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by Meg White

Obama Administration lawyers arguing cases against detainees at Guantánamo Bay, Cuba have not necessarily been shy about defending the government’s right to detain enemy combatants. But in a case decided yesterday, the Justice Department got more than it asked for from two Bush-era judges.

A three-judge panel on the D.C. Circuit Court of Appeals upheld an earlier ruling denying Ghaleb Nassar al-Bihani the right to challenge his detention at Guantánamo, where he has been held since 2002. The Yemeni national was picked up in Afghanistan where he says he was serving as a cook for Taliban forces fighting the Northern Alliance.

While al-Bihani has denied ever firing a weapon, his status as a supplier of food for the 55th Arab Brigade was cited by the judge who denied him the right to habeas corpus last year:

“Simply stated, faithfully serving in an al Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient ‘support’ to meet this Court’s definition. After all, as Napoleon himself was fond of pointing out: ‘an army marches on its stomach,’” wrote U.S. District Judge Richard J. Leon in his ruling Jan. 28, 2009.

Since that last ruling, the case automatically changed from Al-Bihani v. Bush to Al-Bihani v. Obama, since the detainee is officially challenging the U.S. government’s right to detain him by exercising his right to habeas corpus as established by the Supreme Court in 2008. With that name change comes a different definition of “support” to the enemy as well as the president’s “war powers.”

Obama’s Justice Department lawyers now insist detainees must provide “substantial” support to terrorists groups in order to be deemed “enemy combatants” and argued for the application of the international “law of war” to the president’s powers to detain.

Despite that change, the two judges on the panel appointed by President George W. Bush ruled that the president’s war powers to detain extend beyond international law.

“War is a challenge to law, and the law must adjust,” wrote Judge Janice Rogers Brown for the majority.

The third judge, a Reagan appointee, said the other two took the argument further than necessary. Senior Circuit Judge Stephen Williams argued that the president’s powers to detain as defined by congress’ Authorization of the Use of Military Force should be subject to international law.

“This case didn’t require a whole lot of legal wrangling,” said Shayana Kadidal, the senior managing attorney of the Center for Constitutional Rights’ Guantánamo Global Justice Initiative, in a telephone interview after the ruling came down yesterday afternoon. Instead of ruling on the narrow grounds of the case at hand however, Kadidal said the judges appeared to be arguing that the “main opinion in Hamdi [v. Rumsfeld] essentially was wrong.”

Al-Bihani’s Yemeni citizenship gives this case some political resonance outside of the courtroom. But while yesterday’s decision came on the same day that the White House announced that it will suspend the transfer of any Guantánamo detainees to Yemen, and just days after tighter security standards for passengers coming from that country were imposed by the Transportation and Security Administration and the numerous embassy closures in Yemen, Kadidal said he didn’t think that the court decision had “anything to do with [the fallout from the Dec. 25 attempted terrorist attacks] directly.”

In fact, Kadidal and his organization object to notion of current terrorist activities having an affect on the cases of Guantánamo detainees. In response to the political pressure on Obama to not close Guantánamo in the wake of the Dec. 25 attempt, the Center for Constitutional Rights (CCR) released a statement saying in part:

In the wake of the recent attempted attack on Detroit-bound Northwest Airlines flight 253, several elected officials have renewed their politicized claims that closing the prison at Guantánamo would be dangerous and premature. CCR urges the President to reject the use of this incident as fodder to further delay the closure of the prison and justice for the men detained there…

As some politicians have opportunistically seized this latest crisis to justify further delaying the closure of Guantánamo, it is worth recalling that the two former detainees allegedly linked to al Qaeda in Yemen were released from Guantánamo by the Bush administration not set free by court order or after the sort of cautious, formal assessment process that the Task Force is undertaking now, but based on purely political calculations.

“It is astonishing that we are slowing the process” of releasing Yemenis from Guantánamo, Kadidal added.

Though media reports suggest that the ruling will have a strong impact on other habeas cases at Guantánamo, the case is likely to be appealed either to the same Circuit Court of Appeals or to the Supreme Court.

“It remains to be seen how the lower courts deal with it,” Kadidal said. Regardless of future habeas cases, both Kadidal and his organization hope to see continued efforts to close Guantánamo.

“The litigation has never been what’s driving the train.” Instead Kadidal credits the actions of lawyers going to Cuba and exposing both the innocence of so many of the detainees as well as the abuses occurring there with driving the effort to close Guantánamo.

Still, President Obama is on course to miss his own deadline for closing the detention center at Guantánamo Bay before the end of this month.

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Originally published at BuzzFlash.com.

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