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Court rules Obamaâs detention powers not limited by laws of war
Posted: Jan 6, 2010
Wednesday, January 6th, 2010 -- 12:35 am
The Washington, D.C. Circuit Court of Appeals issued a ruling Tuesday that upholds the Bush administration's broad claims of executive power to detain non-citizens.
The case, Al-Bihani v. Obama, "was the first by the Circuit Court to directly apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity," according to the SCOTUS blog. "Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington."
The defendant in the case, whose habeas petition was denied by the court, is Ghaleb Nassar Al Bihani, a citizen of Yemen who served Taliban fighters as a cook and claims he never even fired a shot.
"After all, as Napoleon himself was fond of pointing out, 'An army marches on its stomach,'" wrote U.S. District Judge Richard Leon in early 2009, in a ruling that allowed Al-Bihani's continued imprisonment.
Al-Bihani has been in Guantanamo Bay since 2002. While his habeas petition was filed in 2005, it languished until 2008, when the Supreme Court finally ruled on Boumediene v. Bush, determining that Guantanamo detainees should be allowed to challenge their detention.
The remainder of the article can be found at:
http://rawstory.com/2009/01/court-ruling-finds-obamas-detention-powers-limited-laws-war/
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Justice Dept lawyers argued in favor of applying laws of war to (sm) - TXMT
[ In Reply To ..]Obama's power to detain. It appears that the timing of this decision on the heels of the Christmas Day terrorist incident could have played a role. It came out of the court on the same day the White House announced it is suspending the transfer of Yemeni Gitmo detainees back to Yemen, tighter security for passengers coming out of Yemen and and numerous embassy closures there.
An interesting counterpoint discussion to Nikki's raw story citation can be found here: http://blog.buzzflash.com/alerts/747
By my read, Al-Bihani is ensnared between Bush DOJ cronies' legislative overreach from the bench, dissenting opinions among various judges and political pressure to delay the closing of Gitmo. This may well play out in the appeals process with an end result more in line with the 2008 Supreme Court ruling allowing the detainees to challenge their detention and ultimately will fail to impede the closing of Gitmo.
The scope of power implied in the interim is a function of the discretion exercised by the president. I doubt Obama will be abusing this directive anytime soon.
I'm probably going to get blasted for this, but... - Nikki
[ In Reply To ..]I think we need to redefine the word "war" when it comes to terrorists.
Historically, wars have been waged against countries. Al Qaeda doesn't have a country. They're all over the place, and we simply can't go into each country and bomb it into oblivion.
I know that when perceived crimes are committed in other countries, the country has the right to try the criminals according to their justice systems, but I don't believe that terror attacks are merely criminal events; they're acts of war, committed by a group of people, not a country.
I think military tribunals are the place to try these people because they are terrorists who have committed acts of war against America and Americans.
It's also difficult for me to understand why a foreigner has American "rights," when the Constitution limits "rights" to citizens, and a citizen is defined as "a person who is born or naturalized in the United States." To me, this shouldn't apply to those who have committed an act of war against us, whether they are citizens or not, and I believe military tribunals should hear and rule on war (military) cases.
P.S. The link you provided was entitled, "Was Yesterday's Habeas Corpus Ruling in Al-Bihani v. Obama a Victory For Bush's DOJ?" When I read the story on Raw Story, I interpreted it as being a victory for the Bush DOJ.
You are so right and I agree wholeheartedly! - Backwards Typist
[ In Reply To ..]Military law should also apply to Gitmo prisoners. They shouldn't be tried in our courts either.
Military courts - Vikefan
[ In Reply To ..]I'm in agreement with both of you - they should be tried in a military tribunal. I guess the only consolation that they're being tried as American citizens is that more than likely they'll be found guilty and hopefully the judge will sentence them to death or life without parole. Then, big 'ol Bubba's gonna want to have a little chat with someone responsible for blowing people up. If they put these terrorists in protective custody, I'm going to blow a gasket. Prison can sometimes take care of things, just like Dahmer. From all my true crime reading, I know that child molesters and women beaters/killers are at the bottom of the totem pole as far as other prisoners are concerned. I can't even begin to imagine where a terrorist fits in. Unless in protective custody, I think they'll be dead inside a couple of years.
What bugs me is that if found guilty, we'll be footing the bill for all the appeals.
And what kind of slimeball atty. *volunteers* to defend these poor excuses for human beings? Give me an hour in a room with a baseball bat and the terrorist tied to a chair. Problem solved. I know I should pray for my enemies but I really struggle when it comes to terrorists. I am very far from being violent but can actually picture myself taking a baseball bat swing at bin Laden's head. Eh, who am I kidding? I can't even discipline my own dogs, let alone hurt another person. Still, it makes a nice visual.
No blast zone. You raise some interesting points... - TXMT
[ In Reply To ..]that will require another cup of java before they can be fully addressed, so I would like to proceed slowly here. I guess my first question has to do with burden of proof. When a foreign national is accused of being a terrorist, where does that burden lie? In fact, does he even get the chance to assume the burden of proof on his own behalf, if the burden does not lie with the proscution, as it does in standard court proceedings?
Suppose for a minute that Al-Bihani is telling the truth about the extent of his involvement with the Taliban and Al-Quaeda "operatives" in his presence. If he provided meal preparation services for food that was paid for by his employer, never fired a shot and did not take any direct part in terrorist activities, does that constitute "aid" or "substantive aid" (under the Obama definition) and make him a terrorist? Is he someone who is at war with us by your definition, and therefore a terrorist who should be held in detention for 8 years without formal charges? Is he a candidate for military tribunal?
You just raised two very important points. (sm) - Nikki
[ In Reply To ..]First of all, I believe the burden should rest with the accuser. If someone is going to accuse me, then I want them to prove it.
Secondly, no, I don't think the cook is necessarily a terrorist, but this would/could/should come out during the investigation of the person.
Thirdly (and perhaps most importantly), they should NOT be held indefinitely, as they are being held now. Either try them or set them free, but do it in a timely manner. After being held for almost a decade, I doubt these prisoners would be fans of the USA and just might join al Qaeda BECAUSE of the length of their detention by this country, especially if they're innocent.
I'm not pretending to have all the answers here. In fact, I probably have more questions than answers, but it's clear the present system isn't working.
Please continue to provide feedback because you raise very good points. :-)
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