Thursday, January 7, 2010

Court Backs War Powers Over Rights of Detainees

Court Backs War Powers Over Rights of Detainees

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A federal appeals court panel on Tuesday strongly backed the powers of the government to hold Guantánamo detainees and other noncitizens suspected of committing terrorist acts.

In a sweeping opinion, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit found that the presidential war power to detain those suspected of terrorism is not limited even by international law of war.

The decision, if it is not reversed by the Supreme Court, could apply to all cases involving detainees at Guantánamo Bay, Cuba, since all of those cases are heard by the District of Columbia Circuit. As a result, the Obama administration will have a stronger position when opposing a court order to release a terrorism suspect.

In its ruling, the court denied a request by Ghaleb Nassar al-Bihani, a former cook for a Taliban paramilitary brigade, to be released from the detention center at Guantánamo. It is the first case to directly apply a landmark 2008 Supreme Court decision that allowed prisoners to challenge their detention.

Mr. Bihani, who is from Yemen, was captured in 2002 when his brigade surrendered. He challenged his detention with a petition for habeas corpus, which the courts did not act on before the decision of the 2008 Supreme Court case, Boumediene v. Bush, which said federal judges had jurisdiction to hear such claims.

Last year, a federal district court denied Mr. Bihani’s petition for release; Tuesday’s decision upheld the lower court.

Mr. Bihani argued that his continued detention violated international law because he was not part of the military of a nation at war, and had not committed “a direct hostile act” like firing his weapon. His petition for release, he said, should have been reviewed under standards like those for criminal defendants in the United States.

But the court found that granting such a high level of protection to the rights of detainees like Mr. Bihani would affect the military’s entire approach to war.

“From the moment a shot is fired, to battlefield capture, up to a detainee’s day in court, military operations would be compromised as the government strove to satisfy evidentiary standards in anticipation of habeas litigation,” the opinion said.

A lawyer for Mr. Bihani did not return calls seeking comment. A Department of Justice spokesman also declined to comment.

Eric M. Freedman, a law professor at Hofstra University and an expert in habeas cases, said the appeals court had “gone out of its way to poke a stick in the eye of the Supreme Court” by taking a view that expands government power beyond the limits laid out in decisions like Boumediene.

The 25-page opinion was written by Judge Janice Rogers Brown and joined by Judge Brett M. Kavanaugh, both appointees of President George W. Bush. Both are considered among the most conservative judges on the circuit.

The third member of the panel, who joined in denying Mr. Bihani’s petition but not in the complete reasoning of the decision, was Judge Stephen F. Williams., a senior judge who was appointed by President Ronald Reagan. In a concurring opinion, Judge Williams, wrote that the majority’s argument that the president’s war powers are not bound by the international laws of war actually “goes well beyond even what the government has argued in this case.”

In a separate concurrence, Judge Brown wrote that the war placed the nation “past the leading edge of a new and frightening paradigm, one that demands new rules be written.”

She wrote, “War is a challenge to law, and the law must adjust.”

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