## Facts

- Belkacem Bensayah, an Algerian citizen, was arrested in Bosnia in late 2001 on immigration charges and suspected involvement in a plot against the U.S. Embassy in Sarajevo.
- After an investigation, Bosnia’s highest court ordered his release for lack of sufficient evidence to continue detention.
- Upon release, Bensayah was transferred to U.S. custody and detained at Guantánamo Bay beginning in January 2002.
- After habeas review became available to Guantánamo detainees, Bensayah sought a writ of habeas corpus challenging the legality of his detention under the Authorization for Use of Military Force (AUMF).
- The district court denied relief, finding by a preponderance of the evidence that Bensayah had “supported” al Qaeda by facilitating travel of extremists to Afghanistan.
- On appeal, the government abandoned the “support” rationale and argued only that Bensayah was “part of” al Qaeda.

## Issues

1. Whether the AUMF authorizes detention of individuals who are functionally part of al Qaeda, even if not captured on a conventional battlefield.
2. Whether, given the government’s narrowed theory and concessions on appeal, the remaining reliable evidence was sufficient to show Bensayah was “part of” al Qaeda under a preponderance standard.

## Decision

- The D.C. Circuit held the AUMF authorizes detention of individuals who are functionally part of al Qaeda.
- The court concluded the evidence relied upon below to show “support” was insufficient, on the record presented on appeal, to establish that Bensayah was “part of” al Qaeda.
- The court reversed the district court’s denial of habeas relief and remanded for the district court to decide, considering all reliable evidence, whether Bensayah was functionally part of al Qaeda.
- The court did not order the writ granted or direct release; it required a renewed merits determination under the “part of” standard.

## Legal Principles

- The AUMF permits military detention of individuals who are functionally part of al Qaeda.
- In habeas proceedings challenging AUMF detention, the government bears the burden to justify detention by a preponderance of the evidence.
- Evidence used to justify detention must be reliable; when the source of a key inculpatory item is unclear, corroboration may be required to satisfy the government’s burden.
- When the government changes its detention theory on appeal, the sufficiency of the record must be assessed under the theory actually advanced and supported on appeal.

## Conclusion

The D.C. Circuit recognized AUMF detention authority for persons functionally part of al Qaeda but reversed the denial of habeas because the government’s remaining reliable evidence did not adequately support the “part of” theory, remanding for a new determination based on all reliable evidence.


Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010)