Another Big Detention Case Could Be On Its Way To The Court

A new case, Al Bihani v. Obama, may be on its way to further defining the scope of the government's power to detain those involved in the "War on Terror." The petitioner in this case is a Yemeni national who ended up attached to a fighting force that was supporting the Taliban and Al Qaeda in Afghanistan. Judge Brown wrote the opinion in this case for the D.C. Circuit Court. Here are a few highlights:

• International law does not affect the President's powers under the Authorization for Use of Military Force (AUMF)- Most of Al Bihani's arguments in this case were premised on the idea that international law constrained the President's powers as granted to him by the AUMF (which was originally put in place during the Bush administration). The court found that international law has no effect on AUMF powers for two reasons. First, Congress has never implemented the international laws of war here in the U.S. therefore they serve a purely advisory role in a legal sense. International law has no binding effect on any specific country unless that country has incorporated those principles into its own laws. Secondly, even if Congress did implement international laws of war, the AUMF does not incorporate them and therefore the AUMF, as a subsequent statute, would supersede the constraints of any implemented international laws of war.
• "Purposefully and materially supported"- The court found that Al Bihani "purposefully and materially supported" a group affiliated with Al Qaeda. That standard is set out in the Military Commissions Acts of 2006 and 2009, and it is the standard to detain a person in this fight against terrorism. What is interesting here is that while Al Bihani only claims that he was a cook, and did not fire a gun or engage in other belligerent activities, the court found that this was enough to meet the standard. That is because the court concluded that "traditional food operations" are an essential element to a fighting force.
• Al Bihani's argument that he should be released because fighting in Afghanistan has ceased- Al Bihani argues that the laws of war necessitate his release as the conflict in Afghanistan has officially ended. The court disagreed with this argument saying that it is unclear whether Al Bihani was a member of the Taliban or Al Qaeda and that while Al Bihani claims that the fight against the Taliban is over he does not claim that the fight against Al Qaeda is. Furthermore, the opinion states that ordering the release of a former Taliban soldier at this point would endanger the nation building process occurring in Afghanistan. Finally, the court says that determining whether hostilities have ceased or not is a decision to be made by the Executive or by legislative decree.
• The procedure used during Al Bihani's habeas challenge was sufficient- Al Bihani challenged that the procedures used by the D.C. District Court in his habeas challenge were insufficient and unconstitutional. I'm not going to list all his specific challenges or detail the court's analysis but I will say a couple of things. The court's opinion says that habeas procedures in other settings are not controlling, or even necessarily instructive, in the context of these terrorism detention habeas challenges. The opinion calls these new habeas challenges a "new branch of the [habeas] tree", and that the procedures and parameters are to be figured out by the courts trying them. Somewhat more lax procedural standards are necessary here because requiring a stringent standard would put too much burden on military forces to adhere to legal constraints.

This is interesting because it attempts to color the lines in a little bit more as to what the U.S.'s detention authority actually is, who can be detained, and what is required of during habeas challenges.