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The power to hold detainees without trial.

Upheld by the D.C. Circuit Court of Appeals:

The appellate judges rejected the claim of Ghaleb Nassar Bihani, a Yemeni native who served as a cook for a Taliban brigade in the fall of 2001, that he deserved to go free because the U.S. war against the Taliban ended when the Islamist forces surrendered in 2002.

Judge Janice Rogers Brown said nothing in the law required the release of military prisoners just because the fighting ended in one sector. The law permits "what common sense tells us must be true: release is only required when the fighting stops," she wrote. Otherwise, "each successful campaign of a long war . . . would trigger an obligation to release Taliban fighters captured in earlier clashes" who could then return to battle.

The judges also rejected the notion that these military prisoners were entitled to the full protections of the criminal law....

"In a detainee case, the judge acts as a neutral decision maker charged with seizing the actual truth of a simple, binary question: Is detention lawful?" she wrote.

The district judge had found that Bihani had fought with the Taliban, the court held, and that is enough to give the U.S. the power to hold him until the long war is over.

Full post as published by Althouse on January 06, 2010 (boomark / email).