Appeals court upholds ruling to detain terror suspect

By Del Quentin Wilber
Washington Post Staff Writer
Wednesday, January 6, 2010

A federal appeals court Tuesday endorsed the government's sweeping authority to detain terrorism suspects whom it can link to al-Qaeda, the Taliban and affiliated groups.

The ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld a lower court's decision in 2008 that the government may continue to detain a Yemeni, an admitted cook for a group allied with the Taliban. The prisoner, Ghaleb Nassar al-Bihani, has been held at the U.S. military facility at Guantanamo Bay, Cuba, since 2002.

The decision would make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so strongly backs the government's authority, legal experts said.

"This is a big win for the government," said Robert Chesney, a national security law professor at the University of Texas.

Reuben Camper Cahn, a federal public defender who represents Bihani, said he had not yet decided whether to appeal. "We are obviously disappointed," Cahn said.

In the opinion, the three judges backed U.S. District Judge Richard J. Leon's decision in 2008 to allow the government to detain Bihani, who cooked and carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan.

But two of the judges, Janice Rogers Brown and Brett M. Kavanaugh, went further. They rejected attempts by human rights groups and detainees' lawyers to have the courts apply principles from "the laws of war" to detention decisions.

The lawyers and human rights groups believe the U.S. government should abide by the collection of international laws, treaties and long-standing legal practices because they would likely limit its ability to indefinitely detain people such as Bihani. Even the Obama administration has said that its detention authority "is informed by the laws of war."

"Putting aside that we find Al-Bihani's reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles," wrote Brown, who was joined by Kavanaugh, both appointed to the bench in recent years by President George W. Bush. "The sources we look to for resolution of Al-Bihani's case are the sources courts always look to: the text of relevant statutes and controlling domestic case law."

In addition to limiting the power of international law, the judges backed Leon's broad definition of detention authority. Leon had ruled that the government could confine Bihani because the judge had determined he "was part of or supporting Taliban or Al Qaeda forces."

The Obama administration had said it wanted to detain only those who "substantially" support the groups. Some federal judges have narrowed the definition further, but they will now have to apply Leon's standard unless Tuesday's opinion is overturned.

Brown and Kavanaugh also ruled that Guantanamo Bay detainees are not entitled to the same protections as prisoners contesting criminal convictions. For instance, they ruled, federal judges have wider latitude to consider hearsay evidence against detainees.

Judge Stephen F. Williams did not join his colleagues' legal analysis.

The ruling comes as scores of detainees are challenging their confinements in the District's federal court under the centuries-old legal doctrine of habeas corpus, which allows prisoners to have their cases heard by independent judges.

Since the Supreme Court ruled in 2008 that detainees have such a right, federal judges have ordered the government to release at least 30 prisoners.

In a concurrence to her own opinion, Brown echoed calls by U.S. District Judge Thomas F. Hogan in December that Congress should enact standards for the Guantanamo habeas cases. "These cases present hard questions and hard choices, ones best faced directly," she wrote.

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