In a ruling that is widely expected to set up a new battle in the Supreme Court, a federal appeals court ruled today that the president has virtually unlimited power to detain noncitizen suspects, power even beyond what the government argued it possessed in the case.
The ruling came during the appeal of Ghaleb Nassar al-Bihani, a Guantanamo detainee since 2002 who argued that under international law he could not be held because he did not directly participate in hostilities.
Bihani was a cook for a pro-Taliban faction fighting against the Northern Alliance before the 2001 US invasion, and his unit surrendered during the initial invasion.
The Yemeni citizen is accused of “hostilities against the United States” even though he arrived in Afghanistan nearly six months before the US invasion. Not only did his unit never fight against American forces, he was a cook who doesn’t appear to have ever participated in any combat at all. Despite this, he was declared an enemy combatant.
The court determined that the president’s war powers trump any legal rights Bihani might hypothetically have as a non-citizen. The two authors of the court’s opinion were Bush appointees. The other judge, a Reagan appointee, concurred with the decision but disagreed with the other two judges’ claims of broad power.