Appeals court denies challenge to existing habeas corpus rules

Judge Janice Rogers Brown said in the Jan. 5 majority opinion that it is the hope of the court in this ruling to "narrow the legal uncertainty" that clouds disputes about military detention. Click here for the opinion.

"The 55th clearly was not a state, but rather an irregular fighting force present within the borders of Afghanistan at the sanction of the Taliban," Brown wrote. "Any attempt to apply the rules of co-belligerency to such a force would be folly, akin to this court ascribing powers of national sovereignty to a local chapter of the Freemasons."

Al-Bihani's lawyers presented concerns about procedure, arguing that indefinite detention calls for a reasonable doubt standard or at least a clear-and-convincing-evidence standard. Justice Department lawyers argued for a preponderance-of-the-evidence standard.
Brown noted in the majority opinion that the question of the appropriate standard of proof in a habeas proceeding such as al-Bihani's has not been answered by the Supreme Court. "We believe the government's argument stands on more solid ground," she wrote. The court found the preponderance standard is constitutional.

In a separate opinion concurring with her majority opinion, Brown spent two pages to address the big picture issue: whether a court-driven process is best suited to protect the rights of petitioners and national security.