(CN) – The international laws of war do not limit the U.S. government’s power to detain suspected terrorists or their supporters at Guantanamo Bay, the D.C. Circuit ruled in a decision meant to “narrow the legal uncertainty that clouds military detention.”
The ruling stems from the case of a Yemeni citizen who surrendered to Northern Alliance forces after serving as the cook for a paramilitary group with ties to the Taliban.
Ghaleb Nassar al-Bihani was handed over to U.S. forces in early 2002 and transferred to Guantanamo Bay, where he was detained and interrogated.
He petitioned for a writ of habeas corpus following the U.S. Supreme Court’s decision in Boumediene v. Bush, which granted Guantanamo detainees the right to challenge their detentions.
Al-Bihani argued that his detention violated the international laws of war because his status as a cook made him a civilian, not an official member of the Taliban-affiliated 55th Arab Brigade. He said he carried a brigade-issued weapon, but never fired it in combat.
His continued detention can’t be justified, he said, because the United States’ war with Afghanistan ended when the Taliban lost control of the Afghan government.
The federal appeals court in Washington, D.C., noted that all of his arguments “rely heavily on the premise that the war powers granted by the AUMF (Authorization for Use of Military Force) and other statutes are limited by the international laws of war.”
“This premise is mistaken,” Judge Janice Rogers Brown wrote. “The international laws of war … have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” She added that the laws of war are “by nature contestable and fluid,” and that the president has the power to “exceed those bounds.”
Turning to domestic law, she said al-Bihani fit the government’s definition of legal detainees as those who “substantially support” enemy forces. Anyone subject to a military commission trial is subject to detention, Brown added, including those who are “part of forces associated with al-Qaida or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.”
By defending the Taliban, the 55th Arab Brigade gave al-Qaida a “safe haven” in Afghanistan, the ruling states.
“This result places the 55th within the AUMF’s wide ambit as an organization that harbored al-Qaida, making it subject to U.S. military force and its members and supporters — including al-Bihani — eligible for detention,” Brown wrote.
She rejected his claim that the war had ended, citing the tens of thousands of troops still in Afghanistan.
“The principle al-Bihani espouses — were it accurate — would make each successful campaign of a long war but a Pyrrhic prelude to defeat,” Brown wrote. “The initial success of the United States and its Coalition partners in ousting the Taliban from the seat of government and establishing a young democracy would trigger an obligation to release Taliban fighters captured in earlier clashes.”
The court also rejected al-Bihani’s claim that the government needed to prove the charges against him on “clear and convincing evidence,” rather than the more lenient “preponderance of evidence” standard. The government need only satisfy the lower burden in defending “a wartime detention — where national security interests are at their zenith and the rights of the alien petitioner at their nadir,” the court ruled.
The law must “adjust” to unconventional warfare, Brown added in a separate concurring opinion. “It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare.”
Judge Stephen Williams agreed with the majority’s ruling, but found it more sweeping than necessary.
“Curiously, the majority’s dictum goes well beyond what even the government has argued in this case,” he wrote (original emphasis).