## Facts

- Ghaleb Nassar Al-Bihani, a Yemeni national, was detained at Guantánamo Bay beginning in 2002 after being captured in Afghanistan and transferred to U.S. custody.
- In early 2001, he traveled through Pakistan to Afghanistan intending to aid the Taliban against the Northern Alliance.
- He accompanied and served with the 55th Arab Brigade, a paramilitary unit allied with the Taliban that included al Qaeda members within its command structure and fought on front lines against the Northern Alliance.
- Al-Bihani worked as a cook for the brigade and carried a brigade-issued weapon, but asserted he never fired it in combat.
- After coalition bombing campaigns, the brigade retreated and later surrendered to Northern Alliance forces, which then transferred Al-Bihani to U.S. forces.
- Al-Bihani filed a federal habeas petition challenging the legal basis for his military detention and the procedures used to adjudicate it.
- The district court applied a standard permitting detention of persons “part of or supporting” Taliban, al Qaeda, or associated forces engaged in hostilities against the United States or coalition partners, and denied relief.
- Al-Bihani appealed; the D.C. Circuit affirmed, and rehearing en banc was denied with separate opinions criticizing aspects of the panel’s reasoning on international law.

## Issues

1. Whether the AUMF authorizes detention of a person who served in a Taliban-aligned unit characterized as an “associated force” of the Taliban and al Qaeda.
2. Whether the district court’s habeas procedures—including a preponderance-of-the-evidence burden and admission of hearsay—were constitutionally and statutorily adequate for wartime detention review.
3. Whether international law of war rules constrain detention authority under the AUMF as enforceable domestic limits absent clear congressional incorporation.
4. Whether the end of hostilities for purposes of detention duration presents a judicially manageable question in habeas litigation.

## Decision

- The D.C. Circuit affirmed the denial of habeas relief.
- The court held Al-Bihani’s detention was authorized by the AUMF because he was part of or supported an enemy “associated force” engaged in hostilities against the United States and its partners.
- The court concluded that service as a cook in the 55th Arab Brigade and carrying a unit-issued weapon during a military campaign constituted sufficient support for detention authority.
- The court upheld the district court’s habeas procedures, including use of a preponderance standard and the admission of hearsay, as acceptable in wartime detention cases.
- The court stated that international law of war may inform statutory interpretation but does not itself impose binding domestic limits on AUMF detention authority absent express legislative adoption.
- The court treated the question of when relevant hostilities have ended as principally for the political branches, not for judicial re-determination in that posture.
- Rehearing en banc was denied; separate opinions criticized the panel’s broad statements about international law without changing the judgment that detention was lawful under the AUMF.

## Legal Principles

- The AUMF authorizes military detention of individuals who are part of, or provide support to, Taliban, al Qaeda, or associated forces engaged in hostilities against the United States or coalition partners.
- An “associated force” analysis may look to a unit’s alliance and role in hostilities; direct participation in combat is not required if the detainee’s service materially supported the fighting force.
- In Guantánamo habeas cases challenging wartime detention, district courts may apply a preponderance-of-the-evidence standard and employ flexible evidentiary rules, including consideration of hearsay.
- Habeas review of military detention need not replicate criminal-trial procedures.
- International law of war norms may be used as interpretive aids but are not independently enforceable domestic constraints on detention authority without clear congressional incorporation.
- The timing of the cessation of relevant hostilities is treated as primarily committed to the political branches for purposes of detention duration in this context.

## Conclusion

The D.C. Circuit upheld Al-Bihani’s Guantánamo detention as within the AUMF’s authority based on his support role in a Taliban-aligned fighting unit linked to al Qaeda, and it approved non-criminal-trial habeas procedures using a preponderance standard and permissive evidentiary practices while rejecting international law as an independent domestic limit absent congressional adoption.


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