Indefinitely detained

WASHINGTON-Yemeni Ghaleb Nassar al-Bihani, once a cook for Taliban forces in Afghanistan, has been at the U.S. military prison at Guantanamo Bay since 2002, and following a unanimous circuit court ruling Tuesday, he will remain detained. Even if the court had granted his release, the Obama administration has halted all transfers from Guantanamo to Yemen in light of the attempted Christmas Day terrorist attack.

Two of the three judges on the panel wrote in their majority opinion that international laws of war do not apply to terrorist suspects, giving the U.S. government broader authority to indefinitely detain. The judges, both appointees of President Bush, affirmed the Bush administration's definition of who the government can detain: "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." The third judge, while agreeing that al-Bihani should remain imprisoned, disagreed with the conclusions about the government's authority to detain.

The Supreme Court ruled in 2008 that Guantanamo detainees had habeas corpus rights to challenge their detentions, but that decision left a number of legal questions unanswered, like who the government can detain and what extent of rights detainees have in pursuing release.

Lower court rulings like this most recent one are beginning to fill out the legal picture for the procedures to release for detainees held at Guantanamo. Those procedures are increasingly important as the Obama administration balances its efforts to close the prison with keeping scores of detainees in perpetual imprisonment. Facilitating releases for any among the remaining 198 detainees is becoming increasingly thorny since the rate of those who return to terrorist activities has jumped to about 20 percent.

The administration has announced plans to transfer up to 100 detainees, many who will remained detained indefinitely, to a prison in northern Illinois (see "Gitmo North," Dec. 16, 2009). The range of habeas corpus rights those detainees will have on American soil is still unclear. But according to this ruling, those rights will be curtailed. Otherwise, according to the court's opinion, full habeas rights for terrorism suspects "would have systemic effects on the military's entire approach to war."

The court's ruling on al-Bihani's case is likely to be challenged, but it can only be overturned by the majority of judges on the entire circuit court.