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DC Circuit denies rehearing for Yemeni Guantanamo detainee

The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday denied [order, PDF] a request for an en banc rehearing of the case of Yemeni Guantanamo Bay [JURIST news archive] detainee Gahleb Nassar Al-Bihani [NYT materials]. In January, the court found [opinion, PDF; JURIST report] Al-Bihani "was both part of and substantially supported enemy forces" and held that his detention was authorized by domestic law. Al-Bihani's petition asked the court to rehear the case in order to resolve another issue—its additional finding in the January decision that the president's detention authority is not constrained by international law. In a statement by Chief Judge David Sentelle, joined by a majority of the court, the panel said it denied the appeal on the grounds that the issue of international law of war was "not necessary to the disposition of the merits."

January's ruling was the DC Circuit's first Guantanamo habeas corpus ruling since the US Supreme Court decided Boumedine v. Bush [opinion text; JURIST report] in 2008. While all three members of the panel concurred in the result, one member wrote separately to question the conclusion that international laws of war have no bearing on the president's detention authority. In July, the DC Circuit ruled in Bensaya v. Obama [opinion, PDF] that the government must show by a preponderance of evidence that an enemy combatant is "part of" a terrorist group [JURIST report]. The circuit court held that the government's authority under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF] only extends to the detention of individuals who are "functionally part of" a terrorist organization. Bensayah was the only one of the six petitioners from Boumediene who was not granted habeas relief after the Supreme Court remanded the case for further review of evidence.

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