New Gitmo Habeas Opinion
The opinion by U.S. District Judge John Bates in Khan v. Obama has been declassified in redacted form.
Published by The Lawfare Institute
in Cooperation With
The opinion by U.S. District Judge John Bates in Khan v. Obama has been declassified in redacted form. I will have comments after I've read it, though the case is at minimum significant for finding detainable someone who is "part of" neither the Taliban nor Al Qaeda but an "associated force." The introduction reads:
Shawali Khan, an Afghan citizen, has been in United States custody since mid-November 2002, and has been detained at the United States Naval Base at Guantanamo Bay, Cuba, since early 2003. Contending that he is unlawfully detained under the Authorization for Use of Military Force ("AUMF"), Pub. L. No. 107-40, 115 Stat. 224 (2001), Khan filed a petition for a writ of habeas corpus in this Court. The government has responded that Khan is lawfully detained because he was a member "of Hezb-i-Islami Gulbuddin ('HIG'), an organization that served as an associated force ofthe Ta1iban and al-Qaida in hostilities against the United States and its coalition partners." Resp'ts' Pre-Hearing Mem. ("Resp'ts' Mem."), 1.During the early stages of this litigation, Khan "sought --and received --an 'expedited' [Case Management Order], which provided him with an opportunity to file a motion for judgment on the record before full discovery had been conducted." Khan v. Obama, 646 F. Supp. 2d 6, 10 (D.D.C. 2009). The Court denied Khan's motion for judgment on the record, concluding that "although much of respondents' evidence is fatally lacking adequate indicia of reliability, the evidence that remains is sufficient ... to warrant denial of petitioner's motion." Id. at 20. The parties thereafter completed discovery.On May 13, 14, and 17, 2010, the Court held an evidentiary hearing, at which it heard arguments from counsel, considered the written evidence in the case, and heard testimony from Khan and from Professor Brian Williams, Khan's expert on Afghan warlords. Upon review of all the evidence presented and considered at the evidentiary hearing, the parties' several memoranda, the applicable law, and the entire record herein, and for the reasons set forth below, the Court will deny Khan's petition for a writ of habeas corpus. As framed over the course of these proceedings, this case now centers on a few key pieces of evidence, which the Court finds reliable and which clearly establish Khan was a "part of" HIG when he was captured in 2002. Hence, he is lawfully detained.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
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