Al-Bihani v. Obama

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 2, 2009 Decided January 5, 2010

No. 09-5051

GHALEB NASSAR AL-BIHANI,
APPELLANT

v.

BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01312-RJL)

Shereen J. Charlick argued the cause for appellant.
With her on the briefs were Reuben Camper Cahn, Steven F.
Hubachek, and Ellis M. Johnston, III.

Matthew M. Collette, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Ian Gershengorn, Deputy Assistant Attorney General,
and Douglas N. Letter and Robert M. Loeb, Attorneys. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
 2 

Before: BROWN and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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.

BROWN, Circuit Judge: 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. We reject these
claims and affirm the denial of his petition.

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 Al
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 Al Qaeda members
 3 

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, 542
U.S. 466, 483–84 (2004), that the statutory habeas jurisdiction
of federal courts extended to Guantanamo Bay, Al-Bihani filed
a habeas petition with the U.S. District Court for the District of
Columbia, challenging his detention under 28 U.S.C. §
2241(a). The district court stayed the petition until the
Supreme Court in Boumediene v. Bush, 128 S. Ct. 2229 (2008),
held that the section of the Military Commissions Act of 2006
(2006 MCA), Pub. L. No. 109-366, 120 Stat. 2600 (codified in
part at 28 U.S.C. § 2241 & note), that withdrew jurisdiction
from the courts to entertain habeas petitions filed by
Guantanamo detainees was an unconstitutional suspension of
the writ. 128 S. Ct. at 2274. Boumediene held that detainees
were entitled to proceed with habeas challenges under
procedures crafted to account for the special circumstances of
wartime detention. Id. at 2276.
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), 588 F.
Supp.2d 19 (D.D.C. 2008) (case management order). The
order established that the government had the burden of
 4 

proving the legality of Al-Bihani’s detention by a
preponderance of the evidence; it obligated the government to
explain the legal basis for Al-Bihani’s detention, to share all
documents used in its factual return, and to turn over any
exculpatory evidence found in preparation of its case. To
Al-Bihani, the order afforded the opportunity to file a traverse
and supplements to the traverse rebutting the government’s
factual return, to introduce new evidence, and to move for
discovery upon a showing of good cause and the absence of
undue burden on the government. The order reserved the
district court’s discretion, when appropriate, to adopt a
rebuttable presumption in favor of the accuracy of the
government’s evidence and to admit relevant and material
hearsay, the credibility and weight of which the opposing party
could challenge. The order also scheduled status conferences
to clarify any discovery and evidentiary issues with the
government’s factual return and to identify issues of law and
fact prior to the habeas hearing where such issues would be
contested. See id. at 20–21.
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,”1 the district
court found Al-Bihani’s actions met the standard. See
Al-Bihani v. Obama (Mem. Op.), 594 F. Supp.2d 35, 38, 40
(D.D.C. 2009) (memorandum opinion). It cited as
sufficiently credible the evidence—primarily drawn from

1
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.     
 5 

Al-Bihani’s own admissions during interrogation—that
Al-Bihani stayed at Al Qaeda–affiliated guesthouses and that
he served in and retreated with the 55th Arab Brigade. See id.
at 39–40. The district court declined to rely on evidence
drawn from admissions—later recanted by Al-Bihani—that he
attended Al Qaeda training camps on his way to the front lines.
See id. at 39.
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, 403 F.3d 57, 66 (2d Cir. 2005), its habeas
determination de novo, id., and any challenged evidentiary
rulings for abuse of discretion, Al Odah v. United States, 559
F.3d 539, 544 (D.C. Cir. 2009).

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, 542 U.S. 507, 522 n.1 (2004) (plurality opinion of
O’Connor, J.) (“The permissible bounds of the [enemy
combatant] category will be defined by the lower courts as
subsequent cases are presented to them.”); Boumediene, 128 S.
Ct. at 2276 (“We make no attempt to anticipate all of the
evidentiary and access-to-counsel issues . . . and the other
remaining questions [that] are within the expertise and
 6 

competence of the District Court to address in the first
instance.”). In this decision, we aim to narrow the legal
uncertainty that clouds military detention.

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 “substantial support” of Al Qaeda or the
Taliban as an independent basis for detention violates
international law. As a result, such a standard should not be
read into the ambiguous provisions of the Authorization for
Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a),
115 Stat. 224, 224 (2001) (reprinted at 50 U.S.C. § 1541 note),
the Act empowering the President to respond to the attacks of
September 11, 2001. Al-Bihani interprets international law to
mean anyone not belonging to an official state military is a
civilian, and civilians, he says, must commit a direct hostile
act, such as firing a weapon in combat, before they can be
lawfully detained. Because Al-Bihani did not commit such an
act, he reasons his detention is unlawful. Next, he argues the
members of the 55th Arab Brigade were not subject to attack or
detention by U.S. Coalition forces under the laws of
co-belligerency because the 55th, although allied with the
Taliban against the Northern Alliance, did not have the
required opportunity to declare its neutrality in the fight
against the United States. His third argument is that the
conflict in which he was detained, an international war
between the United States and Taliban-controlled Afghanistan,
officially ended when the Taliban lost control of the Afghan
government. Thus, absent a determination of future
dangerousness, he must be released. See Geneva Convention
Relative to the Treatment of Prisoners of War (Third Geneva
Convention) art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75
 7 

U.N.T.S. 135. Lastly, Al-Bihani posits a type of “clean
hands” theory by which any authority the government has to
detain him is undermined by its failure to accord him the
prisoner-of-war status to which he believes he is entitled by
international law.
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 §
111(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(1)(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, 542 U.S. at
520, their lack of controlling legal force and firm definition
render their use both inapposite and inadvisable when courts
seek to determine the limits of the President’s war powers.
 8 

Therefore, putting aside that we find Al-Bihani’s reading of
international law to be unpersuasive, we have no occasion here
to quibble over the intricate application of vague treaty
provisions and amorphous customary principles. The sources
we look to for resolution of Al-Bihani’s case are the sources
courts always look to: the text of relevant statutes and
controlling domestic caselaw.
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. 542 U.S. at 519. Congress, in the 2006
MCA, provided guidance on the class of persons subject to
detention under the AUMF by defining “unlawful enemy
combatants” who can be tried by military commission. 2006
MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of
an individual who “engaged in hostilities or who has
purposefully and materially supported hostilities against the
United States or its co-belligerents who is not a lawful enemy
combatant (including a person who is part of the Taliban, al
Qaeda, or associated forces).” Id. § 948a(1)(A)(i). In 2009,
 9 

Congress enacted a new version of the MCA with a new
definition that authorized the trial of “unprivileged enemy
belligerents,” a class of persons that includes those who
“purposefully and materially supported hostilities against the
United States or its coalition partners.” Military
Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7),
948b(a), 948c, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190,
2575–76. The provisions of the 2006 and 2009 MCAs are
illuminating in this case because the government’s detention
authority logically covers a category of persons no narrower
than is covered by its military commission authority.
Detention authority in fact sweeps wider, also extending at
least to traditional P.O.W.s, see id. § 948a(6), and arguably to
other categories of persons. But for this case, it is enough to
recognize that any person subject to a military commission
trial is also subject to detention, and that category of persons
includes those who are part of forces associated with Al Qaeda
or the Taliban or those who purposefully and materially
support such forces in hostilities against U.S. Coalition
partners.
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 detainable. His
 10 

acknowledged actions—accompanying the brigade on the
battlefield, carrying a brigade-issued weapon, cooking for the
unit, and retreating and surrendering under brigade
orders—strongly suggest, in the absence of an official
membership card, that he was part of the 55th. Even
assuming, as he argues, that he was a civilian “contractor”
rendering services, see id. at 32, those services render
Al-Bihani detainable under the “purposefully and materially
supported” language of both versions of the MCA. That
language constitutes a standard whose outer bounds are not
readily identifiable. But wherever the outer bounds may lie,
they clearly include traditional food operations essential to a
fighting force and the carrying of arms. Viewed in full, the
facts show Al-Bihani was part of and supported a group—prior
to and after September 11—that was affiliated with Al Qaeda
and Taliban forces and engaged in hostilities against a U.S.
Coalition partner. Al-Bihani, therefore, falls squarely within
the scope of the President’s statutory detention powers.2
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
2
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.
 11 

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 substantially supported enemy forces, we
realize the picture may be less clear in other cases where facts
may indicate only support, only membership, or neither. We
have no occasion here to explore the outer bounds of what
constitutes sufficient support or indicia of membership to meet
the detention standard. We merely recognize that both prongs
are valid criteria that are independently sufficient to satisfy the
 12 

standard.
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, 542 U.S. at 521. Al-Bihani offers the
court a choice of numerous event dates—the day Afghans
established a post-Taliban interim authority, the day the United
States recognized that authority, the day Hamid Karzai was
elected President—to mark the official end of the conflict. No
matter which is chosen, each would dictate the release of
Al-Bihani if we follow his reasoning. His argument fails on
factual and practical grounds. First, it is not clear if Al-Bihani
was captured in the conflict with the Taliban or with Al Qaeda;
he does not argue that the conflict with Al Qaeda is over.
Second, there are currently 34,800 U.S. troops and a total of
71,030 Coalition troops in Afghanistan, see N. Atl. Treaty Org.
[NATO], International Security Assistance Force and Afghan
National Army Strength & Laydown, at 2, Oct. 22, 2009,
available at http://www.nato.int/ISAF/docu/epub/pdf/isaf_
placemat.pdf, with tens of thousands more to be added soon.
The principle Al-Bihani espouses—were it accurate—would
make each successful campaign of a long war but a Pyrrhic
prelude to defeat. The initial success of the United States and
its Coalition partners in ousting the Taliban from the seat of
government and establishing a young democracy would trigger
an obligation to release Taliban fighters captured in earlier
clashes. Thus, the victors would be commanded to constantly
refresh the ranks of the fledgling democracy’s most likely
saboteurs.
In response to this commonsense observation,
Al-Bihani contends the current hostilities are a different
conflict, one against the Taliban reconstituted in a
non-governmental form, and the government must prove that
Al-Bihani would join this insurgency in order to continue to
 13 

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, 335
U.S. 160, 168–70 & n.13 (1948) (“[T]ermination [of a state of
war] is a political act.”). Al-Bihani urges the court to ignore
Ludecke’s controlling precedent because the President in that
case had pronounced that a war was ongoing, whereas in this
case the President has made no such pronouncement. We
reject Al-Bihani’s entreaty. A clear statement requirement is
at odds with the wide deference the judiciary is obliged to give
to the democratic branches with regard to questions concerning
national security. In the absence of a determination by the
political branches that hostilities in Afghanistan have ceased,
Al-Bihani’s continued detention is justified.
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
 14 

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 542 U.S. at 553
(Souter, J., concurring in part, dissenting in part, and
concurring in the judgment) (“For me, it suffices that the
Government has failed to justify [detention] in the absence of .
. . a showing that the detention conforms to the laws of war . . .
. [T]his disposition does not command a majority of the
Court.”). Moreover, Justice Souter’s opinion fails to identify
any other controlling authority that establishes or discusses this
theory in any way. This leaves no foundation for Al-Bihani’s
clean hands argument, and it fails to persuade.

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.” 128 S. Ct. at 2277. The
Boumediene Court refrained from identifying the full list of
procedures that are fundamental, but it did say that a petitioner
 15 

is entitled to “a meaningful opportunity to demonstrate that he
is being held pursuant to the erroneous application or
interpretation of relevant law,” and that “the habeas court must
have the power to order the conditional release” of the
petitioner. Id. at 2266. Meaningful review in this context
requires that a court have “some authority to assess the
sufficiency of the Government’s evidence against the
detainee” and to “admit and consider relevant exculpatory
evidence” that may be added to the record by petitioners during
review. Id. at 2270.
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 discovery request would not unduly burden
the government; and (7) denying all but one of his discovery
requests. In support of these claims, Al-Bihani cites statutes
prescribing habeas procedure for review of federal and state
court convictions and analogizes to a number of cases
concerning review of detentions related to criminal
prosecutions. Brief for Petitioner-Appellant at 48–49. By
referencing these sources, Al-Bihani traces the district court’s
supposed errors to its failure to accord him procedural parity
with safeguards found in review of criminal proceedings.
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,” 128 S. Ct. at 2269. It instead invited
 16 

“innovation” of habeas procedure by lower courts, granting
leeway for “[c]ertain accommodations [to] be made to reduce
the burden habeas corpus proceedings will place on the
military.” Id. at 2276. Boumediene’s holding therefore
places Al-Bihani’s procedural argument on shaky ground.
The Suspension Clause protects only the fundamental
character of habeas proceedings, and any argument equating
that fundamental character with all the accoutrements of
habeas for domestic criminal defendants is highly suspect.
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, 342 U.S.
205, 211 (1952). Congress expanded this review authority in
1867 to reach a determination of actual facts, id., likely
motivated by a desire to rein in what it viewed as recalcitrant
law enforcement in the former Confederate states during
Reconstruction. See Evan Tsen Lee, The Theories of Federal
Habeas Corpus, 72 WASH. U. L.Q. 151, 182 (1994). As the
twentieth century progressed, the protections and rules of
criminal habeas expanded further to account for a growing
number of recognized constitutional and statutory rights and to
manage the sheer number of petitions coursing through the
federal courts. See, e.g., 28 U.S.C. § 2246 (prescribing a right
for petitioner to propound interrogatories or file answering
 17 

affidavits); 18 U.S.C. § 3771(b)(2) (guaranteeing certain rights
to crime victims in habeas proceedings); 28 U.S.C. § 2255
(providing alternate forum to streamline habeas petition
review); Act of Sept. 28, 1976, Pub. L. No. 94-426, 90 Stat.
1334 (adopting rules governing § 2254 and § 2255
proceedings); Jackson v. Virginia, 443 U.S. 307, 321–24
(1979) (holding that federal court reviewing state court
conviction must determine whether sufficient evidence existed
to justify conviction beyond a reasonable doubt); Holiday v.
Johnston, 313 U.S. 342, 352–54 (1941) (requiring review of
habeas petitions be conducted by judges). Rules governing
habeas petitions apart from the criminal sphere—such as those
challenging post-removal-period detention in the immigration
context, see, e.g., Zadvydas v. Davis, 533 U.S. 678, 701 (2001)
(establishing scheme of presumptions and burden shifting),
and those filed pursuant to the Force Act of 1833, ch. 57, § 7, 4
Stat. 632, 634–35 (creating additional penalties for defying
court’s jurisdiction to review such petitions)—developed
separately. This brief account of habeas’ evolving nature
serves to make clear that, in the shadow of Boumediene, courts
are neither bound by the procedural limits created for other
detention contexts nor obliged to use them as baselines from
which any departures must be justified. Detention of aliens
outside the sovereign territory of the United States during
wartime is a different and peculiar circumstance, and the
appropriate habeas procedures cannot be conceived of as mere
extensions of an existing doctrine. Rather, those procedures
are a whole new branch of the tree.
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, 534 F.3d 213, 269 (4th Cir.
2008) (Traxler, J., concurring in the judgment), to support his
contention that the Supreme Court did not authorize less
demanding procedures for a case like his. See Brief for
Petitioner-Appellant at 50. Judge Traxler’s opinion reasoned
 18 

the Hamdi Court blessed lower procedural standards only upon
a showing of undue hardship by the government, but such
hardship was especially clear when a petitioner was seized on a
foreign battlefield where the prospect of high evidentiary
standards might interfere with military operations. See
Al-Marri, 534 F.3d at 270–71. Because the petitioner in
Al-Marri was seized by federal law enforcement in Illinois,
Judge Traxler concluded that as a general rule he was “entitled
to the normal due process protections available to all within
this country,” absent a satisfactory showing by the
government. Id. at 273. We do not express an opinion on
whether or when different habeas procedures are appropriate
for petitioners seized domestically pursuant to the AUMF;
those questions are for another case. It is enough for us to
point out that Judge Traxler’s opinion is of no help to
Al-Bihani; he falls squarely in the category of petitioners that
Judge Traxler and the Supreme Court in Hamdi deemed
deserving of leaner procedures.3
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

3
Both Hamdi and Al-Marri 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.
 19 

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 a case that met its burden. That the
district court’s tailored procedure prevented such a scenario
cannot possibly make the procedure constitutionally infirm.
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, 128 S. Ct. at 2271 (“The
extent of the showing required of the Government in these
cases is a matter to be determined.”). Attempting to fill this
void, Al-Bihani argues the prospect of indefinite detention in
this unconventional war augurs for a reasonable doubt standard
or, in the alternative, at least a clear and convincing standard.
Brief for Petitioner-Appellant at 48. The government
disagrees, arguing that Hamdi’s plurality opinion indirectly
endorsed a preponderance standard when it suggested due
process requirements may have been satisfied by a military
tribunal, the regulations of which adopt a preponderance
standard. Brief for Appellees at 55–56, citing U.S. Dep’ts of
the Army, the Navy, the Air Force, and the Marine Corps,
Army Regulation 190-8, Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees § 1-6(e)(9)
(Oct. 1, 1997), available at http://www.au.af.mil/au/awc/
awcgate/law/ar190-8.pdf.
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
 20 

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, 542 U.S. at 533–34. That description
mirrors a preponderance standard. We emphasize our opinion
does not endeavor to identify what standard would represent
the minimum required by the Constitution. 4 Our narrow
charge is to determine whether a preponderance standard is
unconstitutional. Absent more specific and relevant
guidance, we find no indication that it is.
As already discussed, traditional habeas review did not
entail review of factual findings, particularly in the military
context. See In re Yamashita, 327 U.S. 1, 8 (1946) (“If the
military tribunals have lawful authority to hear, decide and
condemn, their action is not subject to judicial review merely
because they have made a wrong decision on disputed facts.”).
Where factual review has been authorized, the burden in some
domestic circumstances has been placed on the petitioner to
prove his case under a clear and convincing standard. See 28
U.S.C. § 2254(e)(1) (regulating federal review of state court
factual findings). If it is constitutionally permissible to place
that higher burden on a citizen petitioner in a routine case, it
follows a priori that placing a lower burden on the government
defending a wartime detention—where national security
interests are at their zenith and the rights of the alien petitioner
at their nadir—is also permissible.
We find Al-Bihani’s hearsay challenges to be similarly
unavailing. Al-Bihani claims that government reports of his
interrogation answers—which made up the majority, if not all,
4
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, 533 U.S. at
696; cf. Anti-terrorism, Crime and Security Act, 2001, c. 24, §§ 21, 23
(Eng.) (adopting a reasonable suspicion standard in Britain; later
overturned as inconsistent with European Union law).
 21 

of the evidence on which the district court relied—and other
informational documents were hearsay improperly admitted
absent an examination of reliability and necessity. Brief for
Petitioner-Appellant at 47, 50–52. He contends, in fact, that
government reports of his interrogation answers were “double
hearsay” because his answers were first translated by an
interpreter and then written down by an interrogator.
Petitioner-Appellant Rule 28(j) Letter, Sept. 28, 2009. We
first note that Al-Bihani’s interrogation answers themselves
were not hearsay; they were instead party-opponent
admissions that would have been admitted in any U.S. court.
See FED. R. EVID. 801(d)(2)(A). That they were translated
does not affect their status. See United States v. Da Silva, 725
F.2d 828, 831–32 (2d Cir. 1983) (holding that government
employee translation of defendant’s statement was not
hearsay). However, that the otherwise admissible answers
were relayed through an interrogator’s account does introduce
a level of technical hearsay because the interrogator is a third
party unavailable for cross examination. Other information,
such as a diagram of Al Qaeda’s leadership structure, was also
hearsay.
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, 487 U.S. 1012,
1017–19 (1988) (“The Sixth Amendment’s guarantee of
face-to-face encounter . . . serves ends related both to
 22 

appearances and to reality . . . [and] contributes to . . . the
perception as well as the reality of fairness.”). Al-Bihani,
however, does not enjoy a right to the psychic value of
excluding hearsay and whatever right he has is not an
independent procedural entitlement. Rather, it operates only
to the extent that it provides the baseline level of evidentiary
reliability necessary for the “meaningful” habeas proceeding
Boumediene requires under the Suspension Clause. See 128
S. Ct. at 2266.
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 542 U.S. at
533–34. Hamdi pointed to a declaration from a government
official describing his expertise regarding the facts of the case
as an example of reliable hearsay. Id. at 538. And a panel of
this court in the related context of DTA review did not reject
hearsay evidence as inadmissible, but rather considered it and
deemed it insufficient to support detention because the panel
could not “assess the reliability” of its “bare assertions” in the
absence of contextual information. Parhat v. Gates, 532 F.3d
834, 847 (D.C. Cir. 2008).
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
 23 

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, 237 U.S. 309, 346, 349 (1915) (Holmes, J.,
dissenting). The habeas judge is not asked, as he would be in
a trial, to administrate a complicated clash of adversarial
viewpoints to synthesize a process-dependent form of
Hegelian legal truth. See Blakely v. Washington, 542 U.S.
296, 313 (2004) (“[T]he Framers' paradigm for criminal justice
[was] not the civil-law ideal of administrative perfection, but
the common-law ideal of limited state power accomplished by
strict division of authority between judge and jury.”). Rather,
in a detainee case, the judge acts as a neutral decisionmaker
charged with seizing the actual truth of a simple, binary
question: is detention lawful? This is why the one constant
in the history of habeas has never been a certain set of
procedures, but rather the independent power of a judge to
assess the actions of the Executive. This primacy of
independence over process is at the center of the Boumediene
opinion, which eschews prescribing a detailed procedural
regime in favor of issuing a spare but momentous guarantee
that a “judicial officer must have adequate authority to make a
determination in light of the relevant law and facts.”
Boumediene, 128 S. Ct. at 2271; cf. id. at 2270 (“Even when
the procedures authorizing detention are structurally sound, the
 24 

Suspension Clause remains applicable and the writ relevant.”).
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
district court did not improperly admit hearsay evidence.
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, 565 F.2d 203, 207 (2d
Cir. 1977) (explaining that courts retain discretion under 28
U.S.C. § 2255 to grant fact hearings), Al-Bihani cites no
authority that a petitioner in his position is entitled to such a
 25 

hearing as of right. Second, it is clear from the CMO and the
transcript of the full habeas hearing that the district court did
hear the facts of Al-Bihani’s case and provided ample
opportunity in conference and in a hearing for the parties to air
concerns over evidence. See CMO at 20–21; Classified
Hearing Transcript, P.M. Session (Jan. 15, 2009). To the
extent that Al-Bihani possesses any right to a hearing to
develop facts or argue evidentiary issues, it was satisfied by the
district court’s procedure.
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 Al Qaeda training camps. The
district court assiduously avoided those facts in its decision.
See Mem. Op. at 39.

III

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.
 BROWN, Circuit Judge, 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 and
one appellate court. See Boumediene, 128 S. Ct. at 2276.
And, in the midst of an ongoing war, time to entertain a process
of literal trial and error is not a luxury we have.
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, 548 U.S. 557, 576–77
(2006) (holding that the DTA’s withdrawal of federal habeas
jurisdiction did not apply to petitions pending at the time of the
DTA’s enactment), Congress may understandably be reluctant
to return to this arena to craft appropriate habeas standards as it
has done for other habeas contexts in the past. But the
circumstances that frustrate the judicial process are the same
 2 

ones that make this situation particularly ripe for Congress to
intervene pursuant to its policy expertise, democratic
legitimacy, and oath to uphold and defend the Constitution.
These cases present hard questions and hard choices, ones best
faced directly. Judicial review, however, is just that: re-view,
an indirect and necessarily backward looking process. And
looking backward may not be enough in this new war. The
saying that generals always fight the last war is familiar, but
familiarity does not dull the maxim’s sober warning. In
identifying the shape of the law in response to the challenge of
the current war, it is incumbent on the President, Congress, and
the courts to realize that the saying’s principle applies to us as
well. Both the rule of law and the nation’s safety will benefit
from an honest assessment of the new challenges we face, one
that will produce an appropriately calibrated response.
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.
 WILLIAMS, Senior Circuit Judge, 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
need to discuss the constitutionality of the district court’s
factfinding process.

* * *

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. 107-40 § 2(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
 2

acts of international terrorism against the United States
by such nations, organizations or persons.

Pub. L. 107-40 § 2(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, 128 S.Ct. 2229, 2241 (2008).

Noting, however, that under Hamdi v. Rumsfeld, 542 U.S.
507 (2004), the laws of war have—even in the government’s
view—a role to play in the interpretation of the AUMF’s grant
of authority, Appellees’ Unclassified Br. at 23 (citing 542
U.S. at 521), Al Bihani says that under recognized principles
of “co-belligerency” and the law of neutrality the United
States would not have been permitted in the weeks after 9/11
to take hostile action against the 55th Brigade—which had
conducted hostilities against a soon-to-be U.S. ally, the
Northern Alliance, but not against the United States itself. In
support of this position he cites a number of authorities
suggesting that pursuant to the laws of war, a state’s merely
being an ally of a party to a conflict does not, without more,
allow that state to take aggressive action against its ally’s
adverse parties. Unclassified Reply Br. at 12 (citing inter alia
Parry and Grant Encyclopaedic Dictionary of International
Law 84 (John P. Grant & J. Craig Barker eds., 2d ed. 2004)).

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
 3

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 Brigade
forces fighting with the Taliban against the Northern Alliance.
Whatever the appropriate role of the laws of war in
determining what powers the President derived from the
AUMF, it cannot be to render unlawful the President’s use of
force in Afghanistan in the fall of 2001—which the Supreme
Court has repeatedly acknowledged was permitted under the
AUMF. See Boumediene, 128 S.Ct. at 2240-41. Under the
best reading of the AUMF, then, Congress authorized that
military campaign, aimed at removing the Taliban from the
seat of government and minimizing its ongoing influence in
Afghanistan, including the attacks on ancillary forces aiding
the Taliban.

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.
 4

Al 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
 5

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 allowed the U.S. military to target.1 The
alternative conclusion—which would have it that the
President was authorized to use force against the fighting
members of the 55th Brigade on the front lines in northern
Afghanistan, but not against the armed people who enabled
them to fight—is senseless. Because Al Bihani was
effectively part of the 55th Brigade, and a sufficient supporter
of same, his detention for the duration of the hostilities in
which he was captured is lawful. See Boumediene, 128 S.Ct.

1
While Al 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 Al Qaeda
personnel. See Maj. Op. at 9 (quoting Al 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.
 6

at 2241 (citing Hamdi, opinions of O’Connor, J., and Thomas,
J.).

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 Al 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 6-7. The paragraph appears hard
to square with the approach that the Supreme Court took in
Hamdi. See 542 U.S. at 521 (O’Connor, J.) (plurality
opinion) (“[W]e understand Congress’ grant of authority for
the use of ‘necessary and appropriate force’ to include the
authority to detain for the duration of the relevant conflict, and
our understanding is based on longstanding law-of-war
principles.”); id. at 548-49 (Souter, J., opinion concurring in
part and dissenting in part) (advocating a more substantial role
for the laws of war in interpretations of the President’s
authority under the AUMF). In any event, there is no need for
the court’s pronouncements, divorced from application to any
particular argument. Curiously, the majority’s dictum goes
 7

well beyond what even the government has argued in this
case. See Appellees’ Unclassified Br. at 23 (“The authority
conferred by the AUMF is informed by the laws of war.”).

* * *

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
in Guantanamo detainees’ habeas proceedings, whether the
district court’s approach to the admission of hearsay evidence
is consistent with the minimum requirements of the
Suspension Clause as the Supreme Court construed it in
Boumediene, 128 S.Ct. 2229, or whether petitioners in Al
Bihani’s circumstance do or don’t enjoy only a “limited
procedural entitlement . . . as a general matter,” Maj. Op. at
19. These matters are analytically irrelevant to the outcome of
this appeal, since the facts that Al Bihani says are correct
readily yield a ruling that his detention is legally permissible.

* * *

I join the majority’s opinion to the extent it is consistent
with the preceding arguments and observations.