“The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for US courts… Therefore, 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 case law”.4
This domestic law, the Court of Appeals said, centred on the Authorization for Use of Military Force (AUMF), a broad resolution passed by Congress in the immediate wake of the attacks of 11 September 2001, and included the Military Commissions Act of 2006 and the new version of the MCA passed in 2009. Under these legislative acts, the panel asserted, Ghaleb Al-Bihani was lawfully held whether the definition of a “detainable person” (i.e. what the Bush administration called an “enemy combatant”) was that formulated by the previous administration and adopted by Judge Leon, or the very slightly modified definition that had been advanced by the Obama administration in March 2009.5
According to the record before the courts, Ghaleb Al-Bihani had worked as a cook for a paramilitary brigade allied to the Taleban (he had apparently never fired in combat the gun he carried during that time). The Court of Appeals upheld Judge Leon’s decision that Ghaleb Al-Bihani’s continued detention was lawful, deeming that his involvement with a brigade that “fought alongside the Taliban while the Taliban was harbouring Al Qaeda… render him detainable” without charge under US law, even nearly eight years after he was taken into custody.6
Ghaleb Al-Bihani was captured by Northern Alliance forces and after a period of detention was handed over to the USA in June 2002, the month that the international armed conflict in Afghanistan ended (with the establishment of the Afghan Transitional Authority on 19 June 2002) and the conflict became non-international. The Court of Appeals noted that “it is not clear if Al-Bihani was captured in the conflict with the Taliban or with Al Qaeda”, but said that in any event:
“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”.