Ghaleb al-Bihani, imprisoned at the Guantanamo Bay military base, was a cook in the 55th Arab Brigade in Afghanistan who was retreating from battle when he was captured in late 2001, his lawyer told a panel of judges on the U.S. Court of Appeals for the D.C. Circuit today.
The lawyer, Shereen Charlick, a federal public defender in San Diego, Calif., argued for the release of al-Bihani on the basis that he had not provided substantial support to groups opposed to the United States and coalition forces.
Charlick argued that at the time the 55th Arab Brigade was fighting the Northern Alliance in Afghanistan, the conflict was “limited and discreet” and had nothing to do with the United States, which entered the fray in October 2001. The U.S. sided with the Northern Alliance in the conflict.
“They never had a chance to declare themselves neutral,” said Charlick, describing the 55th Arab Brigade. Al-Bihani, she said, “was fleeing. He was trying to run away. One could argue that he assisted the United States’ effort by surrendering.”
Charlick’s argument, which failed to sway Judge Richard Leon earlier this year, was met with skepticism today by Judges Janice Rogers Brown and Brett Kavanaugh and Senior Judge Stephen Williams. (Leon in January ruled that the government had met its burden for continued detention. The judge denied al-Bihani’s habeas petition.)
Just a cook? Williams didn’t think so. “It’s not as if some roadside lunch counter provided meals to troops,” Williams said. Kavanaugh and Williams did not seem persuaded by Charlick’s argument about timing—that the United States and the Northern Alliance had not aligned during al-Bihani’s service in the 55th Arab Brigade. And Brown said there’s no question that the 55th Arab Brigade supported the Taliban in its battle against the Northern Alliance.
Justice lawyers said in briefs that al-Bihani’s detention in lawful under the Authorization for Use of Military Force (2001.) In court papers, government lawyers say that al-Bihani received combat training at several al-Qaida camp. Al-Bihani cooked for about 150 front-line soldiers. He also washed dishes.
“He’s functionally a part of the forces opposing the United States and coalition forces,” said Matthew Collette, an appellate lawyer in the Justice Department’s Civil Division. Collette said later: “A solider who huddles in a fox hole and never fires his weapon can still be detained.”
Today’s argument was open to the public. Before the hearing began, Brown laid the ground rules: no discussion of classified information in open court. The courtroom would have been closed if the lawyers wanted to address information in the classified record. The appellate judges did not immediately issue a ruling.
Charlick was denied access to a recent Guantanamo detainee hearing in the D.C. Circuit in which the panel judges ordered the courtroom closed. Charlick said she wanted to attend the other case because of its similarity to the al-Bihani matter.
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