Hatim Order Unsealed

After receiving both parties' responses to its order from last week to show cause why a certain district court order from the Hatim case should not be unsealed, today the D.C. Circuit ordered that document be released. In response, the District Court promptly unsealed its May 17, 2010 order, which did not--as I had surmised--turn out to concern a motion to correct the public record. Rather, it was an order regarding the government's motion to stay the district court's December 15, 2009 habeas grant pending the government's appeal to the D.C. Circuit. The newly released document is particularly interesting because Judge Ricardo Urbina, in granting the stay, indicates clearly that he thinks the government has a substantial likelihood of success on the merits. Indeed, he seemed to anticipate that his ruling would not survive the appeal in light of the D.C. Circuit's ruling in Al Bihani:

The Circuit issued its opinion in Al-Bihani less than a month after this court granted the habeas petition in this case.  In Al-Bihani, the Circuit attemted to "narrow the legal uncertainty that cloud[ed] military detention" in the wake of the Supreme Court's rulings on the matter by clarifying the legal standard that the government was required to meet to justify a petitioner's detention.  More specifically, the Circuit held that detention was permissible if the petitioner was "part of forces associated with Al Qaeda or the Taliban or . . . purposefully and materially support[ed] such forces in hostilities against U.S. Coalition partners."

This standard appears to be at odds with the detention standard that this court applied in its memorandum opinion granting the petitioner's habeas petition.

Judge Urbina goes on to quote a substantial section of his opinion, and then continues:

The Circuit's subsequent holding in Al-Bihani, in contrast [to the language in this court's earlier opinion], indicates that the petitioner's detentntion may have been justified had the government demonstrated that the petitioner "purposefully and materially support[ed]" the enemy armed forces, a matter not considered in this court's decision.

(Scroll to the end of the 100-page document for the relevant opinion.)