Page:Judicial Activity Concerning Enemy Combatant Detainees -- Major Court Rulings .pdf/13

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009)

This case concerned the continuing availability of DTA review procedures in light of the Supreme Court's ruling in Boumediene v. Bush that the constitutional privilege of habeas corpus extends to non-citizen detainees held at Guantanamo. As discussed supra, following the Supreme Court's ruling in Gates v. Bismullah, the D.C. Circuit reinstated two earlier rulings concerning the scope of judicial review of CSRT determinations available under the DTA. The government subsequently petitioned for a rehearing of the case, arguing that the Supreme Court's ruling in Boumediene effectively nullified the review system established by the DTA, as Congress had not intended for detainees to have two judicial forums in which to challenge their detention. The D.C. Circuit granted the government's motion for rehearing, and in Bismullah v. Gates, a three-judge panel held that, in light of the Supreme Court's ruling in Boumediene restoring detainees' ability to seek habeas review of the legality of their detention, the appellate court no longer had jurisdiction over petitions for review filed pursuant to the DTA.

Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010)

In January 2010, a three-judge panel of the D.C. Circuit Court of Appeals considered the scope of the government's detention authority under the AUMF in the case of Al-Bihani v. Obama. In an opinion supported in full by two members of the panel, the appellate court endorsed the definitional standard for the Executive's detention authority that had initially been asserted by the Bush Administration; namely, that the President may detain those persons who are "part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." The petitioner claimed that he was merely a cook for a military unit associated with the Taliban during its conflict with the Northern Alliance in Afghanistan, and argued that his detention is inconsistent with the law of war and, by extension, the AUMF. While the panel concluded that either support for or membership in an AUMF targeted organization may be independently sufficient to justify detention, it declined "to explore the outer bounds of what constitutes sufficient support or indicia of membership to meet the detention standard." It did, however, note that this standard would permit the detention of a "civilian contractor" who "purposefully and materially supported" an AUMF-targeted organization through "traditional food operations essential to a fighting force and the carrying of arms." Notwithstanding the government's reliance on the law of war to interpret the scope of the AUMF and seemingly in conflict with Supreme Court discussion of the issue in 'Hamdi, the panel rejected the idea that the international law of war has any relevance to the courts' interpretation of the scope of the detention power conferred by the AUMF.

The panel also held that the procedural protections afforded in habeas cases involving wartime detainees do not need to mirror those provided to persons in the traditional criminal law context.