Detention: Law of

Cert. Petition filed in Toffiq Al Bihani

By Larkin Reynolds
Monday, May 16, 2011, 11:55 AM

Last Wednesday counsel for Toffiq Al Bihani filed a petition for certiorari in the Supreme Court. Readers may recall that the D.C. Circuit summarily affirmed Judge Reggie Walton's 2010 decision denying Toffiq Nasser Awad Al Bihani the writ.

The petition presents the question for the court as follows:

Whether the laws of armed conflict apply to determine the scope of who may be detained under the Authorization for Use of Military Force.

Al Bihani argues (citations omitted):

The D.C. Circuit has settled on a detention standard that ignores the historic law of armed conflict restrictions on the indefinite detention and that is inconsistent with this Court’s decisions in Ex parte Quirin, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld. The Circuit’s standard allows indefinite detention of an individual based solely on his being ‘part of” a group, al Qaeda, without regard to whether the individual in question ever personally engaged in hostilities (direct or otherwise) against the United States or any coalition partner.

Then, petitioner later writes:

Nor is [the direct participation in hostilities standard] a suicide pact. “[S]enior terrorist leaders . . . should be considered to continually be taking a direct part in hostilities.” Such individuals by virtue of their “senior leadership positions and involvement in or planning of combat operations, are always combatants.” Accordingly, the recent commando raid in which Usama bin Laden was targeted and killed was appropriate under the laws of armed conflict.

The petition includes five appendices 1) The D.C. Circuit’s order affirming Judge Walton’s district-court opinion; 2) Judge Walton’s district-court opinion; 3) The government’s March 13, 2009 memorandum regarding the Obama administration's position on detention authority relative to detainees held at Guantánamo Bay, in which it refined its position regarding the AUMF relative to that of the Bush administration (see extended discussion of this brief in Chapter 3 of The Law of Detention 2.0); 4) a declaration of Professor Gary D. Solis submitted in the late 2008 Boumediene case before Judge Leon (on remand from the Supreme Court's summer 2008 Boumediene decision); and 5) a copy of the Second Additional Protocol to the Geneva Conventions.

Toffiq Al Bihani is the ninth GTMO-related cert. petition filed this term.