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Ghaleb Nassar Al Bihani is a citizen of Yemen, held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba.^[1]Al Bihani's Guantanamo Internment Serial Number is 128. American intelligence analysts estimate that Al Bihani was born in 1980, in Tabokh, Saudi Arabia.

The Blog of Legal Times reported that Ghaleb had simply been a cook for the Taliban's 55th Arab Brigade.^{[2][3][4][5][6]}

Al Bihani's habeas corpus petition was the first one to be ruled on by a higher court.^[7]

Identity

Captive 128 was identified inconsistently on various official Department of Defense documents:

• Captive 128 was named Ghaled Nassar Al Bahani on the Summary of Evidence memo prepared for his Combatant Status Review Tribunal, on 12 October 2004.^[8]
• Captive 128 was named Ghaled Nassar Al Bihani on the Summary of Evidence memo prepared for his first annual Administrative Review Board, on 18 October 2005, and the memo prepared for his second annual review board on 19 June 2006.^[9][10]

Combatant Status Review Tribunal

Initially the Bush administration asserted that they could withhold all the protections of the Geneva Conventions to captives from the war on terror. This policy was challenged before the Judicial branch. Critics argued that the USA could not evade its obligation to conduct a competent tribunals to determine whether captives are, or are not, entitled to the protections of prisoner of war status.

Subsequently the Department of Defense instituted the Combatant Status Review Tribunals. The Tribunals, however, were not authorized to determine whether the captives were lawful combatants -- rather they were merely empowered to make a recommendation as to whether the captive had previously been correctly determined to match the Bush administration's definition of an enemy combatant.

Summary of Evidence memo

A Summary of Evidence memo was prepared for Ghaleb Nassar Al Bahani's Combatant Status Review Tribunal, on 12 October 2004.^[8]The memo listed the following allegations against him:

Transcript

Al Bihani chose to participate in his Combatant Status Review Tribunal.^[14]

Allegations

The allegations Al Bihani faced during his Tribunal were:^[14]

a. The detainee was an associate of the Taliban and/or Al-Qaida.

1. The detainee is a Yemen citizen who lived in Saudi Arabia and traveled to Afghanistan via Doha and Karachi Pakistan. The detainee remained in Afghanistan from May through November 2001.
2. The detainee stated that he went to Afghanistan to fight Jihad with the Taliban.

b. The detainee participated in hostilities against the United States or its coalition partners.

1. Upon arriving in Afghanistan the detainee traveled immediately to thr front where he supported the mujahidin.
2. The detainee traveled on Taliban aircraft, stayed in Taliban guest housing, and upon arriving at the front line he received a Kalashnikov rifle and ammunition.
3. The detainee delivered supplies to the front lines.
4. The detainee was part of 400-600 man force that surrendered to General Dostum's forces.
5. The detainee was present during the prison uprising in Mazar-E-Sharif [sic].

Administrative Review Board hearings

Detainees who were determined to have been properly classified as "enemy combatants" were scheduled to have their dossier reviewed at annual Administrative Review Board hearings. The Administrative Review Boards weren't authorized to review whether a detainee qualified for POW status, and they weren't authorized to review whether a detainee should have been classified as an "enemy combatant".

They were authorized to consider whether a detainee should continue to be detained by the United States, because they continued to pose a threat—or whether they could safely be repatriated to the custody of their home country, or whether they could be set free.

First annual Administrative Review Board

A Summary of Evidence memo was prepared for Ghaleb Nassar Al Bihani'sAdministrative Review Board, on 18 October 2005.^[9]The memo listed factors for and against his continued detention.

Second annual Administrative Review Board

A Summary of Evidence memo was prepared for Ghaleb Nassar Al Bihani'ssecond annualAdministrative Review Board, on 19 June 2006.^[10]The memo listed factors for and against his continued detention.

Writ of habeas corpus

Ghaleb Nassar Al Bihani had a writ of habeas corpus filed on his behalf before US District Court Judge Richard J. Leon.^{[3][4][5][6][16][17][18]}On January 29, 2009 Leon ruled that his CSR Tribunal had appropriated classified Al Bihani, as an enemy combatant—even though he had only served as a cook, quoting Napoleon Bonaparte: "An Army marches on its stomach."

Ghaleb's lawyer, Shereen Charlick, appealed Leon's ruling to a panel of the DC Circuit Court of Appeals.^[2]According to Charlick those in the 55th Arab Brigade “never had a chance to declare themselves neutral,” and Ghaleb, “was fleeing. He was trying to run away. One could argue that he assisted the United States’ effort by surrendering.”

A panel of three judges, Janice Rogers Brown, Brett Kavanaugh and Stephen Williams convened on October 2 2009 to hear Ghaleb's appeal.^[2]Although the judges expressed some skeptical comments they did not release a ruling.

The October 2 2009 hearing was open to the public.^[2] According to the Blog of Legal Times Charlick had wanted to attend the September 15 2009 hearing of the appeal of Leon's ruling on Bensayah Belkacem, because his case was similar to Ghaleb's. But the judges ruling on Bensayah's appeal had cleared the court, in order to hear classified evidence.^[19]Charlick was excluded, in spite of the security clearance she was granted in order to see classified evidence against Ghaleb.

The appeal panel made its ruling on January 5, 2010.^[20][21]John Schwartz, writing in the New York Times, calling the ruling "sweeping", wrote the judges found:"...that the presidential war power to detain those suspected of terrorism is not limited even by international law of war."According to Schwartz, an expert in the Guantanamo cases, Eric M. Freedman of Hofstra Universitycharacterized the panel's ruling as having: “gone out of its way to poke a stick in the eye of the Supreme Court”.CNN reported that the ruling would apply to all other captives.^[22][23][7]

References