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Transnational Absurdity

A federal court fortunately refuses to hear a radical legal defense for a Gitmo detainee.

6:05 AM, Sep 1, 2010 • By THOMAS JOSCELYN
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This demonstrates the degree to which the Obama administration is committed to some very radical notions of the law. The AUMF was Congress’s response to the most devastating terrorist attack in history, and rightly gave the presidency substantial power to hunt down the al Qaeda terror network. But the administration believes that even the AUMF is subject to an amorphous body of international law and standards and should be interpreted through that transnational prism.

All of this goes to a more central point. Legal gamesmanship long ago trumped national security concerns when it comes to litigating the cases of Guantanamo detainees. This entire argument is taking place in the context of the U.S. government’s proper detention of a known al Qaeda operative.

Some press accounts have called Ghaleb Nassar al Bihani a mere cook for al Qaeda. That is his lawyers’ spin. Al Bihani was much more than that. He comes from a family of al Qaeda terrorists. Several of his brothers served Osama bin Laden in various capacities. Al Bihani received extensive terrorist training in Afghanistan, and became a member of al Qaeda’s elite Arab 055 brigade, which fought alongside the Taliban. He served al Qaeda right up until the time of his capture.

Despite this and more, al Bihani’s lawyers thought that international law should free al Bihani from Gitmo. Their arguments are a good illustration of why the transnational legal framework is fraught with danger.

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

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