Originally the
Bush Presidency asserted that captives apprehended in the
"war on terror" were not covered by the
Geneva Conventions, and could be held indefinitely, without charge, and without an open and transparent review of the justifications for their detention. In 2004 the
United States Supreme Court ruled, in
Rasul v. Bush, that Guantanamo captives were entitled to being informed of the allegations justifying their detention, and were entitled to try to refute them.
Office for the Administrative Review of Detained Enemy Combatants Following the Supreme Court's ruling, the
Department of Defense set up the
Office for the Administrative Review of Detained Enemy Combatants. • Al Bihani was listed as one of the captives who
"The military alleges ... are members of the Taliban." 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." Ghal's lawyer,
Shereen Charlick, appealed Leon's ruling to a panel of the
DC Circuit Court of Appeals. 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. 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 University characterized 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.
Guantanamo Review Task Force On January 22, 2009, when President
Barack Obama had just taken office, he issued three
Executive Orders related to Guantanamo—one of which set up a high-level
Guantanamo Review Task Force. Practically no documents generated by this Task Force's activities have been made public, other than the three lists of captives. The Task Force broke the remaining captives into three groups: those who should face charges; those who did not represent enough of a threat to the US to justify continued detention, and who should be released; and finally individuals for who there was no evidence to justify laying criminal charges who nevertheless should continue to be detained due to the threat to the USA they were imagined to represent should they be released. Ghaled Nassar al-Bihani was one of men who weren't guilty of a crime, so they couldn't be charged, who, nevertheless, due to fears of what he might do, if released, the Task Force recommended continued detention. Al-Bihani, and the other men who faced indefinite detention without charge, were supposed to have regular status reviews, to see whether they were still feared to represent a sufficient danger they should continue to be held in continued extrajudicial detention.
Periodic Review Board al-Bihani was the fourth individual to have a
Periodic Review Board hearing scheduled to review his status. His review was held on April 8, 2014. Senior representatives of the
Departments of
Defense,
State,
Justice,
Homeland Security and the
Office of the Director of National Intelligence convened in
Washington DC area. Al-Bihani, his civilian lawyer
Pardiss Kebraie, his
Personal Representatives, would be allowed to participate in the non-classified part of the review, via videolink. A limited number of reporters and human rights workers would be allowed to view part of the non-classified portion of the review, via a one-way video-link. Two documents prepared for his review were made public on April 8, 2014. A single page
"Guantanamo Detainee Profile", prepared on January 27, was three paragraphs long—and was much less specific than the summary of evidence memos prepared for his annual
OARDEC reviews. It asserted that al-Bihani was
"almost certainly" a member of
al Qaeda, that he had brothers who had also traveled to Afghanistan, for jihad, that one brother was a member of
Al Qaeda in the Arabian Peninsula. Also published was a four pages from his Personal Representatives and his civilian lawyer Pardiss Kebraie. His Personal Representative wrote: : His Personal Representative argued that al-Bihani didn't meet any of the criteria for being an ongoing threat, while the guidelines required him to meet all three criteria. ==Reports his brother was killed fighting in Somalia==