^* This text was reproduced and reformatted from the text available at the Refworld website (visited March 24, 2010) http://www.unhcr.org/refworld/publisher,USA_CA_DC,,,4b66d6252,0.html.

¹ Boumediene v. Bush, 128 S. Ct. 2229, 2262, 171 L. Ed. 2d 41 (2008).

² Authorization for the Use of Military Force, Pub. L. No. 107-40, SS 1-2, 115 Stat. 224 (2001).

³ Gherebi v. Obama, 609 F. Supp. 2d 43, 61-65 (D.D.C. 2009). See also Hamlily v. Obama, 616 F. Supp. 2d 63, 76 (D.D.C. 2009); Mattan v. Obama, 618 F. Supp. 2d 24, 26 (D.D.C. 2009); Al Mutairi v. United States, No. 02-828, 2009 U.S. Dist. LEXIS 66868, at *17 (D.D.C. July 29, 2009); Al Odah v United States, No. 02-828, 2009 U.S. Dist. LEXIS 78222, at *14 (D.D.C. Aug. 24, 2009); A1 Rabiah v. United States, No. 02-828, 2009 U.S. Dist. LEXIS 88936, at *18-19 (D.D.C. Sept. 17, 2009); Abdal Razak Ali v. Obama, 2009 U.S. Dist. LEXIS 108097, at *10 (D.D.C. Sept. 24, 2009); Mohammed v. Obama, 2009 U.S. Dist. LEXIS 118820, at *87 (D.D.C. Nov. 16, 2009); Hatim v. Obama, 2010 U.S. Dist. LEXIS 137, at *16 (D.D.C. Jan. 4, 2010); Suhail Abdu Anam v. Obama, 2010 U.S. Dist. LEXIS 815, at *10-11 (D.D.C. Jan. 6, 2010).

⁴ See Boumediene v. Bush, 583 F. Supp. 2d 133, 135 (D.D.C. 2008); Gharani v. Bush, 593 F. Supp. 2d 144, 147 (D.D.C. 2009); Al-Bihani v. Bush, 594 F. Supp. 2d 35, 38 (D.D.C. 2009); Hammamy v. Obama, 604 F. Supp. 2d 240, 243 (D.D.C. 2009); Ahmed v. Obama, 613 F. Supp. 2d 51, 54 (D.D.C. 2009).

⁵ Al-Bihani v. Bush, 590 F.3d 866, 868 (D.C. Cir. 2010).

⁶ Id. at 871.

⁷ Id.

⁸ Id. at 885 (Williams, J., concurring).

⁹ Hamdi v. Bush, 542 U.S. 507, 519 (2004) (plurality opinion of O’Connor, J.).

¹⁰ Ex Parte Quirin, 317 U.S.1, 27-28 (1942).

¹¹ Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804).

¹² Al-Bihani, 590 F.3d at 871.

¹³ Medellin v. Texas, 552 U.S. 491, 505 (2008).

¹⁴ The Military Commissions Act (MCA) of 2006 defined “unlawful enemy combatants” subject to trial by military commissions as any individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces.” Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, § 948a(1), (codified in part at 28 U.S.C. § 2241 & note). The 2009 version of the MCA authorized the trial of “unprivileged enemy belligerents”; this class of persons included those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190, 2575-76, §§ 948a(7), 948b(a), 948c,. In sum, both versions of the MCA authorized military trials of persons who “supported” hostilities.

¹⁵ Al-Bihani, 590 F.3d at 872.

¹⁶ Id.

¹⁷ Id. at 872-873.

¹⁸ Id. An alternative basis of authority for detaining Al-Bihani was the AUMF’s authorization of force (and thus detention authority) against those who “harbored . . . organizations or persons” implicated in the September 11 terrorist attacks on the U.S. Since A1 Qaeda was indisputably responsible for those attacks and it was protected by the Taliban, the 55th,s defense of the Taliban placed it “within the AUMF’s wide ambit as an organization that harbored Al Qaeda, making it subject to U.S. military force and its members and supporters – including Al-Bihani – eligible for detention.” Id. at 873.

¹⁹ Id. at 873 n.2.

²⁰ See, e.g., Gherebi, 609 F. Supp. 2d at 70; Hamlily, 616 F. Supp. 2d at 76; Mattan, 618 F. Supp. 2d at 26; Al Mutairi, 2009 U.S. Dist. LEXIS 66868, at *17-18; Al Odah, 2009 U.S. Dist. LEXIS 78222, at *16; Al Rabiah, 2009 U.S. Dist. LEXIS 88936, at *18-19.

²¹ See International Committee for the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities at 32, available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/direct-participation-reportres/$File/direct-participatio-guidance-2009-icrc.pdf. See also Al-Bihani, 590 F.3d at 885 (Williams, J., concurring).

²² Al-Bihani, 590 F.3d at 873.

²³ Id. at 874.

²⁴ Id. at 874-875.

²⁵ Id. at 877 n.3.

²⁶ Id. at 878.

²⁷ Id. at 879.

²⁸ See supra note 3.

¹ This was the initial definition offered by the government as the controlling standard. In its filings before this court, the government modified the definition in its initial habeas return to replace the term “support” with “substantially supported.” See Brief for Appellees at 21–22. The district court adopted the initial definition. See Mem. Op. at 38.

² In reaching this conclusion, we need not rely on the evidence suggesting that Al-Bihani attended Al Qaeda training camps in Afghanistan and visited Al Qaeda guesthouses. We do note, however, that evidence supporting the military’s reasonable belief of either of those two facts with respect to a non-citizen seized abroad during the ongoing war on terror would seem to overwhelmingly, if not definitively, justify the government’s detention of such a non-citizen. Cf. NAT’L COMM’N ON T errorist Attacks Upon the United States, The 9/11 Comission Report 66–67.

³ Both Hamdi and Al-Marri involved American citizens or legal residents; the procedures to which Americans are entitled are likely greater than the procedures to which non-citizens seized abroad during the war on terror are entitled.

⁴ In particular, we need not address whether a some evidence, reasonable suspicion, or probable cause standard of proof could constitutionally suffice for preventative detention of non-citizens seized abroad who are suspected of being terrorist threats to the United States. See Zadvydas, 533 U.S. at 696; cf. Anti-terrorism, Crime and Security Act, 2001, c. 24, §§ 21, 23 (Eng.) (adopting a reasonable suspicion standard in Britain; later overturned as inconsistent with European Union law).

⁵ While Al Bihani’s concessions put him squarely among persons who may be lawfully detained, he has not in fact conceded that the 55th Brigade was commanded by Al Qaeda personnel. See Maj. Op. at 9 (quoting Al Bihani’s brief for the proposition that the 55th was “‘aided, or even, at times, commanded, by al-Qaeda members.”’). The phrase is in fact quite clearly part of a contingent argument (“Even if I lose on proposition A, I win on proposition B.”): “Rather, the 55th, whether it was aided, or even, at times, commanded, by al-Qaeda members, was focused in its mission to fight frontal military operations against the Northern Alliance.” Petitioner-Appellant’s Unclassified Br. at 33.