A federal appeals court ruling Tuesday could make it harder for Guantanamo detainees to challenge their confinement and endorsed the government's broad power to hold people seized in the fight against al-Qaida and the Taliban.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the continued detention of a former cook for Taliban forces who said he never fired a shot in battle. Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan, has been held at the U.S. naval base in Cuba since 2002.
The court was unanimous in rejecting Al Bihani's appeal, but two judges appointed by President George W. Bush took a broader view of the detention power than the Obama administration had argued for in the case.
The two judges, Janice Rogers Brown and Brett Kavanaugh, also said the detainees are not entitled to the same rights given criminal defendants who challenge their convictions. The third judge, Reagan appointee, Stephen Williams, said his colleagues did not need to go as far as they did in ruling against Al Bihani.
Williams said it was enough that Al Bihani conceded he helped prepare meals for foreign fighters allied with the Taliban against the Afghan Northern Alliance in 2001. The unit retreated with other Taliban forces after the U.S. began its bombing campaign in October 2001, and eventually surrendered. Al Bihani was moved to Guantanamo the following year.
In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.
Instead, in a series of cases in U.S. District Court in Washington, federal judges have come to a range of conclusions about the government's power to continue holding the Guantanamo prisoners and the detainees' legal rights.
Al Bihani's case was initially heard by Judge Richard Leon, who has been more inclined to back continued detention than other judges in Washington.
Tuesday's decision can be appealed either to the full appeals court or the Supreme Court. Al Bihani's lawyers did not immediately comment on the ruling.
If it stands, the ruling will apply to every other detainee case filed in Washington and could give the government a strong basis to challenge an order to release a detainee.