Lead Opinion
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge BROWN.
Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge WILLIAMS.
Ghaleb Nassar Al-Bihani appeals the denial of his petition for a writ of habeas corpus and seeks reversal or remand. He claims his detention is unauthorized by statute and the procedures of his habeas proceeding were constitutionally infirm.
I
Al-Bihani, a Yemeni citizen, has been held at the U.S. naval base detention facility in Guantanamo Bay, Cuba since 2002. He came to Guantanamo by a circuitous route. It began in Saudi Arabia in the first half of 2001 when a local sheikh issued a religious challenge to Al-Bihani. In response, Al-Bihani traveled through Pakistan to Afghanistan eager to defend the Taliban’s Islamic state against the Northern Alliance. Along the way, he stayed at what the government alleges were Al Qaeda-affiliated guesthouses; Al-Bihani only concedes they were affiliated with the Taliban. During this transit period, he may also have received instruction at two A1 Qaeda terrorist training camps, though Al-Bihani disputes this. What he does not dispute is that he eventually accompanied and served a paramilitary group allied with the Taliban, known as the 55th Arab Brigade, which included A1 Qaeda members within its command structure and which fought on the front lines against the Northern Alliance. He worked as the brigade’s cook and carried a brigade-issued weapon, but never fired it in combat. Combat, however — in the form of bombing by the U.S.-led Coalition that invaded Afghanistan in response to the attacks of September 11, 2001 — forced the 55th to retreat from the front lines in October 2001. At the end of this protracted retreat, Al-Bihani and the rest of the brigade surrendered, under orders, to Northern Alliance forces, and they kept him in custody until his handover to U.S. Coalition forces in early 2002. The U.S. military sent Al-Bihani to Guantanamo for detention and interrogation.
After the Supreme Court held in Rasul v. Bush,
Soon after the Boumediene decision, the district court, acting with admirable dispatch, revived Al-Bihani’s petition and convened counsel to discuss the process to be used. The district court finalized the procedure in a published case management order. See Al Bihani v. Bush (CMO),
After the parties filed their cases in accordance with the case management order and the district court held a day and a half of hearings, the district court denied Al-Bihani’s petition. Adopting a definition that allowed the government to detain anyone “who was 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,”
Al-Bihani appealed the district court’s denial to this court under 28 U.S.C. § 2253(a), alleging numerous substantive and procedural defects with the order. We review the district court’s findings of fact for clear error, DeBerry v. Portuondo,
II
Al-Bihani’s many arguments present this court with two overarching questions regarding the detainees at the Guantanamo Bay naval base. The first concerns whom the President can lawfully detain pursuant to statutes passed by Congress. The second asks what procedure is due to detainees challenging their detention in habeas corpus proceedings. The Supreme Court has provided scant guidance on these questions, consciously leaving the contours of the substantive and procedural law of detention open for lower courts to shape in a common law fashion. See Hamdi v. Rumsfeld,
A
Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. He first argues that relying on “support,” or even “sub
Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub.L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 2741-43, or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. See Restatement (Third) of Foreign Relations Law of the United States § lll(3)-(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id. § 115(l)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id. § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi,
Under those sources, Al-Bihani is lawfully detained whether the definition of a detainable person is, as the district court articulated it, “an individual who was 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,” or the modified definition offered by the government that requires that an individual “substantially support” enemy forces. The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also cabin the application of these definitions. The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force.
In light of these provisions of the 2006 and 2009 MCAs, the facts that were both found by the district court and offered by Al-Bihani in his traverse place Al-Bihani within the “part of’ and “support” prongs of the relevant statutory definition. The district court found Al Qaeda members participated in the command structure of the 55th Arab Brigade, see Mem. Op. at 40, making the brigade an Al Qaeda-affiliated outfit, and it is unquestioned that the 55th fought alongside the Taliban while the Taliban was harboring Al Qaeda. Al-Bihani’s evidence confirmed these points, establishing that the 55th “supported the Taliban against the Northern Alliance,” a Coalition partner, and that the 55th was “aided, or even, at times, commanded, by al-Qaeda members.” Brief for Petitioner-Appellant at 33. Al-Bihani’s connections with the 55th therefore render him detain-able. His acknowledged actions — accompanying the brigade on the battlefield, car
The government can also draw statutory authority to detain Al-Bihani directly from the language of the AUMF. The AUMF authorizes force against those who “harbored ... organizations or persons” the President determines “planned, authorized, committed, or aided the terrorist attacks of September 11, 2001.” AUMF § 2(a). It is not in dispute that Al Qaeda is the organization responsible for September 11 or that it was harbored by the Taliban in Afghanistan. It is also not in dispute that the 55th Arab Brigade defended the Taliban against the Northern Alliance’s efforts to oust the regime from power. Drawing from these facts, it cannot be disputed that the actual and foreseeable result of the 55th’s defense of the Taliban was. the maintenance of Al Qaeda’s safe haven in Afghanistan. This result places the 55th within the AUMF’s wide ambit as an organization that harbored Al Qaeda, making it subject to U.S. military force and its members and supporters— including Al-Bihani — eligible for detention.
Al-Bihani disagrees with this conclusion, arguing that the 55th Arab Brigade was not lawfully subject to attack and detention. He points to the international laws of co-belligerency to demonstrate that the brigade should have been allowed the opportunity to remain neutral upon notice of a conflict between the United States and the Taliban. We reiterate that international law, including the customary rules of co-belligerency, do not limit the President’s detention power in this instance. But even if Al-Bihani’s argument were relevant to his detention and putting aside all the questions that applying such elaborate rules to this situation would raise, the laws of co-belligerency affording notice of war and the choice to remain neutral have only applied to nation states. See 2 L. Oppenheim, International Law: A Treatise § 74 (1906). The 55th clearly was not a state, but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban. Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons.
While we think the facts of this case show Al-Bihani was both part of and sub
With the government’s detention authority established as an initial matter, we turn to the argument that Al-Bihani must now be released according to longstanding law of war principles because the conflict with the Taliban has allegedly ended. See Hamdi,
In response to this commonsense observation, Al-Bihani contends the current hostilities are a different conflict, one against the Taliban reconstituted in a nongovernmental form, and the government must prove that Al-Bihani would join this insurgency in order to continue to hold him. But even the laws of war upon which he relies do not draw such fine distinctions. The Geneva Conventions require release and repatriation only at the “cessation of active hostilities.” Third Geneva Convention art. 118. That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. See id. art. 2 (provisions apply “even if the state of war is not recognized”), art. 118 (discussing the possibility of the cessation of active hostilities even in the absence of an agreement to cease hostilities). The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.
Even so, we do not rest our resolution of this issue on international law or mere common sense. The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war. See Ludecke v. Watkins,
Al-Bihani also argues he should be released because the government’s failure to accord him P.O.W. status violated international law and undermined its otherwise lawful authority to detain him. Even assuming Al-Bihani is entitled to P.O.W. status, we find no controlling authority for this “clean hands” theory in statute or in caselaw. The AUMF, DTA, and MCA of 2006 and 2009 do not hinge the government’s detention authority on proper identification of P.O.W.s or compliance with international law in general. In fact, the MCA of 2006, in a provision not altered by the MCA of 2009, explicitly precludes detainees from claiming the Geneva conventions — which include criteria to determine who is entitled to P.O.W. status — as a source of rights. See 2006 MCA sec. 5(a). And the citation Al-Bihani gives to support his theory is not controlling. The section of Justice Souter’s separate opinion in Hamdi in which he discusses a clean hands theory was part of his dissent in that case. See
B
We now turn to Al-Bihani’s procedural challenge. He claims the habeas process afforded him by the district court fell short of the requirements of the Suspension Clause and that his case should be remanded for rehearing in line with new, more protective procedures. The Supreme Court in Boumediene held detainees are entitled to the “fundamental procedural protections of habeas corpus.”
Drawing upon Boumediene’s holding, Al-Bihani challenges numerous aspects of the habeas procedure devised by the district court. He claims the district court erred by: (1) adopting a preponderance of the evidence standard of proof; (2) shifting the burden to him to prove the unlawfulness of his detention; (3) neglecting to hold a separate evidentiary hearing; (4) admitting hearsay evidence; (5) presuming the accuracy of the government’s evidence; (6) requiring him to explain why his dis
Al-Bihani’s argument clearly demonstrates error, but that error is his own. Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial,”
In considering Al-Bihani’s argument, we recognize that the Great Writ is not a static institution and it did not begin its life looking like it does today. Rather, like a tree extending its branches, habeas has grown over a long history to develop various procedures applicable to various circumstances of detention. See id. (“[Past cases] stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus.”); Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1269 (1970) (“It is then the nature of the writ that it grow and adapt to new conditions ... through a combination of statutory and judicial innovation.”). For example, federal habeas review of criminal prosecutions at common law began as a cursory review of the legitimacy of a court’s jurisdiction. See United States v. Hayman,
Al-Bihani, however, argues his case does not rest on that branch. He points to one of the seven concurring opinions in Al-Marri v. Pucciarelli,
Unlike either Hamdi or Al-Marri, Al-Bihani is a non-citizen who was seized in a foreign country. Requiring highly protective procedures at the tail end of the detention process for detainees like Al-Bihani would have systemic effects on 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. Al-Bihani suggests no such danger is posed in his case because the evidence presented in the government’s return consisted mainly of records of interrogations that took place at Guantanamo and not of evidence procured from the battlefield. See Brief for Petitioner-Appellant at 49-50. Logically, however, had the district court imposed stringent standards of evidence in the first instance, the government may well have been obligated to go beyond Al-Bihani’s interrogation records and into the battlefield to present
With Al-Bihani’s limited procedural entitlement established as a general matter, we turn to the specific procedural claims warranting serious consideration. The question of what standard of proof is due in a habeas proceeding like Al-Bihani’s has not been answered by the Supreme Court. See Boumediene,
We believe the government’s argument stands on more solid ground. In addition to the Hamdi plurality’s approving treatment of military tribunal procedure, it also described as constitutionally adequate— even for the detention of U.S. citizens' — -a “burden-shifting scheme” in which the government need only present “credible evidence that the habeas petitioner meets the enemy-combatant criteria” before “the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.” Hamdi,
As already discussed, traditional habeas review did not entail review of factual findings, particularly in the military context. See In re Yamashita,
But that such evidence was hearsay does not automatically invalidate its admission — it only begins our inquiry. We observe Al-Bihani cannot make the traditional objection based on the Confrontation Clause of the Sixth Amendment. This is so because the Confrontation Clause applies only in criminal prosecutions, see U.S. Const, amend. VI, and is not directly relevant to the habeas setting, cf. 28 U.S.C. § 2246 (granting discretion to habeas judge to admit affidavits into evidence). The Confrontation Clause seeks to ensure the reliability of evidence, but it also seeks to eliminate the ephemeral perception of unfairness associated with the use of hearsay evidence. See Coy v. Iowa,
Therefore, the question a habeas court must ask when presented with hearsay is not whether it is admissible — it is always admissible — but what probative weight to ascribe to whatever indicia of reliability it exhibits. This approach is evident in the relevant caselaw. Boumediene did not say exactly how a habeas court should treat hearsay, but it broadly required that a court be able to “assess the sufficiency of the Government’s evidence.” Id. at 2270. In Hamdi, the Supreme Court said hearsay “may need to be accepted as the most reliable available evidence” as long as the petitioner is given the opportunity to rebut that evidence. See
A procedure that seeks to determine hearsay’s reliability instead of its mere admissibility comports not only with the requirements of this novel circumstance, but also with the reality that district judges are experienced and sophisticated fact finders. Their eyes need not be protected from unreliable information in the manner the Federal Rules of Evidence aim to shield the eyes of impressionable juries. See Fed.R.Evid. 103(c) (requiring courts to “prevent inadmissible evidence from being suggested to the jury by any means”); James Bradley Thayer, a Preliminary Treatise on Evidence at the Common Law 266 (1898) (describing the law of evidence as “the child of the jury system” that excludes probative evidence because of possible adverse effects on a lay jury). Where the touchstone of a proceeding is “meaningfulness,” empowering a district court to review and assess all evidence from both sides is a logical process. It is one that bolsters the traditional power of the habeas court to “cut[] through all forms and go[] to the very tissue of the structure” of a proceeding and “look facts in the face.” Frank v. Mangum,
In Al-Bihani’s case, the district court clearly reserved that authority in its process and assessed the hearsay evidence’s reliability as required by the Supreme Court. First, the district court retained the authority to assess the weight of the evidence. See CMO at 21 (“The Government bears the ultimate burden of persuasion ... [and t]he Court will determine, as to any evidence introduced by the Government, whether a presumption of accuracy and/or authenticity should be accorded.”); Mem. Op. at 39 (judging admissions presented by government to be “credible and consistent”). Second, the district court had ample contextual information about evidence in the government’s factual return to determine what weight to give various pieces of evidence. See Government’s Classified Factual Return (Nov. 21, 2008). Third, the district court afforded Al-Bihani the opportunity in a traverse to rebut the evidence and to attack its credibility. See CMO at 21. Further, Al-Bihani did not contest the truth of the majority of his admissions upon which the district court relied, enhancing the reliability of those reports. We therefore find that the
The rest of Al-Bihani’s procedural claims can be disposed of without extended discussion. His claim that the burden of proof was placed on him is based on a strained reading of the hearing transcript that twists and magnifies questions asked by the judge. This claim has no merit and we need not consider it further. Likewise, Al-Bihani’s claim that an evidentiary hearing was denied to him in violation of his right to a hearing is groundless. First, while courts reviewing state or federal court decisions have the discretion to grant fact hearings upon a proper showing by a petitioner, see 28 U.S.C. § 2254(e)(2); Newfield v. United States,
Finally, regarding Al-Bihani’s challenge to the discovery procedures adopted by the district court and to the denial of most of his discovery requests, we are inclined to find the procedures were permissible and the court’s denial was not an abuse of discretion. However, we need not reach these issues. Even assuming error, the errors were harmless because discovery would not have changed the outcome of the case. None of the discovery requests that were denied would have had any impact on the factual basis on which the district court found Al-Bihani to be properly detained. All of the discovery requests pertained to the disputed facts surrounding whether Al-Bihani attended A1 Qaeda training camps. The district court assiduously avoided those facts in its decision. See Mem. Op. at 39.
Ill
Al-Bihani’s detention is authorized by statute and there was no constitutional defect in the district court’s habeas procedure that would have affected the outcome of the proceeding. For these reasons, the order of the district court denying Al-Bihani’s petition for a writ of habeas corpus is
Affirmed.
Notes
. This was the initial definition offered by the government as the controlling standard. In its filings before this court, the government modified the definition in its initial habeas return to replace the term '‘support” with "substantially supported.” See Brief for Appellees at 21-22. The district court adopted the initial definition. See Mem. Op. at 38.
. In reaching this conclusion, we need not rely on the evidence suggesting that Al-Bihani attended Al Qaeda training camps in Afghanistan and visited Al Qaeda guesthouses. We do note, however, that evidence supporting the military's reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, if not definitively, justify the government’s detention of such a non-citizen. Cf. Nat'l Comm'n on Terrorist Attacks Upon the United States, The 9/11 Commission Report 66-67.
. Both Hamdi and Al — Marn involved American citizens or legal residents; the procedures to which Americans are entitled are likely greater than the procedures to which non-citizens seized abroad during the war on terror are entitled.
. In particular, we need not address whether a some evidence, reasonable suspicion, or probable cause standard of proof could constitutionally suffice for preventative detention of non-citizens seized abroad who are suspected of being terrorist threats to the United States. See Zadvydas,
Concurrence Opinion
concurring:
The Supreme Court in Boumediene and Hamdi charged this court and others with the unprecedented task of developing rules to review the propriety of military actions during a time of war, relying on common law tools. We are fortunate this case does not require us to demarcate the law’s full substantive and procedural dimensions. But as other more difficult cases arise, it is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. The common law process depends on incrementalism and eventual correction, and it is most effective where there are a significant number of cases brought before a large set of courts, which in turn enjoy the luxury of time to work the doctrine supple. None of those factors exist in the Guantanamo context. The number of Guantanamo detainees is limited and the circumstances of their confinement are unique. The petitions they file, as the Boumediene Court counseled, are funneled through one federal district court
While the common law process presents these difficulties, it is important to note that the Supreme Court has not foreclosed Congress from establishing new habeas standards in line with its Boumediene opinion. Having been repeatedly rebuffed, see id. at 2240 (holding that the DTA’s procedures were an inadequate substitute for habeas and that the MCA therefore operated as an unconstitutional suspension of the writ); Hamdan v. Rumsfeld,
Absent such action, much of what our Constitution requires for this context remains unsettled. In this case, I remain mindful that the conflict in which Al-Bihani was captured was only one phase of hostilities between the United States and Islamic extremists. The legal issues presented by our nation’s fight with this enemy have been numerous, difficult, and to a large extent novel. What drives these issues is the unconventional nature of our enemy: they are neither soldiers nor mere criminals, claim no national affiliation, and adopt long-term strategies and asymmetric tactics that exploit the rules of open societies without respect or reciprocity.
War is a challenge to law, and the law must adjust. It must recognize that the old wineskins of international law, domestic criminal procedure, or other prior frameworks are ill-suited to the bitter wine of this new warfare. We can no longer afford diffidence. This war has placed us not just at, but already past the leading edge of a new and frightening paradigm, one that demands new rules be written. Falling back on the comfort of prior practices supplies only illusory comfort.
Concurrence Opinion
concurring in part and concurring in the judgment:
I agree with the majority’s decision to affirm the district court's denial of Al Bihani’s petition for a writ of habeas corpus. I take a slightly different view of the central substantive issue in this case, and a significantly different view as to the necessity of reaching any of Al Bihani’s procedural arguments. For purposes of both my analysis and the majority’s, the petitioner has conceded facts that render his detention lawful — thereby obviating any
The petitioner’s detention is legally permissible by virtue of facts that he himself has conceded.
He argues that he cannot be detained on the basis of his relationship with the 55th Brigade, for two reasons. First, Al Bihani says, the Authorization for the Use of Military Force, Pub.L. 107-402(a) (2001) (“AUMF”) — properly interpreted in light of applicable law-of-war principles — cannot be read to have authorized the U.S. government to conduct hostilities against the 55th Brigade. Second, even if the 55th Brigade were the kind of organization targeted by the AUMF, he himself was not a part of the 55th Brigade, nor was his involvement with the unit enough to subject him to the lawful exercise of U.S. force. Neither argument is persuasive.
The AUMF authorizes the President to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Pub.L. 107-402(a). Al Bihani acknowledges that both before and after 9/11, the 55th Brigade fought alongside the Taliban in Afghanistan in its fight against the Northern Alliance, Petitioner-Appellant’s Unclassified Br. at 3-4, 33, and he cannot reasonably dispute that the Taliban “harbored” al Qaeda, which committed the 9/11 attacks, see Boumediene v. Bush,
Noting, however, that under Hamdi v. Rumsfeld,
But the AUMF clearly authorized the President to attack the 55th Brigade. By its terms, the AUMF allows force against “organizations” that “harbored” those who were responsible for the 9/11 attacks. The 55th Brigade fought to preserve the Taliban regime in Afghanistan even as the Taliban was harboring al Qaeda in Afghanistan. This makes the 55th Brigade, itself, an organization that “harbored” al Qaeda within the meaning of the AUMF.
No contrary interpretation of the AUMF is plausible. If the AUMF did not authorize U.S. force against an organization fighting in Afghanistan to stabilize and protect the Taliban’s power after 9/11, then the American military campaign that started on October 7, 2001, was illegal— under domestic law — to the extent that it targeted not just Taliban forces fighting the Northern Alliance, but also 55th Bri
Because the 55th Brigade was properly the target of U.S. force in Afghanistan pursuant to the AUMF, it follows that members of the 55th Brigade taken into custody on the battlefield in Afghanistan in the fall of 2001 may be detained “for the duration of the particular conflict in which they were captured.” See id. at 2241. In addition to detention based on a person’s having been “part of’ an AUMF-targeted organization, the government asserts that Congress authorized force against, and therefore detention of, someone who provided “substantial support” to such a group. Appellees’ Unclassified Br. at 16.
AI Bihani argues, by contrast, that he was not a part of the 55th Brigade at all, but merely “a cook’s assistant ... near the front lines.” Petitioner-Appellant’s Unclassified Br. at 31. To be sure, the people he was cooking for were the members of the 55th Brigade, as his counsel acknowledged at oral argument. Oral Argument Tr. at 4 (Oct. 2, 2009) (referencing “the brigade for which he cooked”). Al Bihani maintains, though, that notwithstanding his cooking, and his having been provided a weapon, Petitioner-Appellant’s Unclassified Br. at 4, he was effectively a “civilian contractor” rather than a bona fide member of the brigade, id. at 32. In support of this contention, he cites principally a document produced by the International Committee of the Red Cross (ICRC), entitled Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law. That work, in his view, says that “individuals who accompany ... armed forces and provide food” are properly viewed as civilians. Unclassified Reply Br. at 17. As a result, such food-providers can’t permissibly be detained unless they themselves take hostile acts directly against their would-be detainers. Id.
The question whether a person was a “part of’ an informal, non-state military organization like the 55th Brigade overlaps significantly with the question whether that person “supported” or indeed “substantially” or “materially” supported the organization. Both these terms are highly elastic, ranging from core membership and support to vague affiliation and cheerleading. But whatever their range, it seems hard to imagine how someone could be shown to be a member of such a group (for purposes of detention under the AUMF) without evidence that he also significantly supported it (for those purposes).
Regardless, however, of whether the operative inquiry probes membership in the unit, or support of the unit, or substantial or material support of the unit, or some combination of these considerations, Al Bihani’s involvement with the 55th Brigade' — ■ cooking for and carrying arms provided by the 55th Brigade, and doing so near the front lines of hostilities between the Taliban and the Northern Alliance — was ample to make him properly subject to U.S. force directed at the 55th Brigade pursuant to the AUMF. Purely on the basis of these activities, he was sufficiently enmeshed with the brigade to fall into the category of persons whom the AUMF al
The ICRC document does not alter this analysis. The work itself explicitly disclaims that it should be read to have the force of law. “[W]hile reflecting the ICRC’s views,” the authors write, “the Interpretive Guidance is not and cannot be a text of a legally binding nature.” Interpretive Guidance 6. Even to the extent that A1 Bihani’s reading of the Guidance is correct, then, the best he can do is suggest that we should follow it on the basis of its persuasive force. As against the binding language of the AUMF and its necessary implications, however, that force is insubstantial.
Within the portion of the opinion addressing the petitioner’s substantive argument that his activities in Afghanistan do not put him in the class of people whom the President may detain pursuant to the AUMF, the majority unnecessarily addresses a number of other points. Most notable is the paragraph that begins “Before considering these arguments in detail,” and that reaches the conclusion that “the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war ... is mistaken.” See Maj. Op. at 871. The paragraph appears hard to square with the approach that the Supreme Court took in Hamdi See
Because the petitioner’s detention is lawful by virtue of facts that he has conceded — a conclusion that the majority seems not to dispute — the majority’s analysis of the constitutionality of the procedures the district court used (i.e., Maj. Op., Section II B) is unnecessary. Nothing in this case turns on the questions whether “preponderance of the evidence” is a constitutionally permissible standard of proof
I join the majority’s opinion to the extent it is consistent with the preceding arguments and observations.
. While A1 Bihani's concessions put him squarely among persons who may be lawfully detained, he has not in fact conceded that the 55th Brigade was commanded by A1 Qaeda personnel. See Maj. Op. at 872 (quoting A1 Bihani's brief for the proposition that the 55th was “aided, or even, at times, commanded, by al-Qaeda members.”). The phrase is in fact quite clearly part of a contingent argument (“Even if I lose on proposition A, I win on proposition B.”): "Rather, the 55th, whether it was aided, or even, at times, commanded, by al-Qaeda members, was focused in its mission to fight frontal military operations against the Northern Alliance.” Petitioner-Appellant’s Unclassified Br. at 33.