Upcoming Habeas Arguments

To the list of upcoming habeas cases in the court of appeals, add these: first, Khairkhwa v. Obama, which is set for argument on October 5th; and second, Hussain v. Obama, which is set for argument on October 18th. The appeals, in which district judges denied both detainees' petitions for writs of habeas corpus, seem to share some general attributes.  Khairkhwa, recall, is the case of the high-level-Taliban-apparatchik-who-didn’t-fight-but-got-detained-anyway.  The petitioner in Hussain likewise says, among other things, that no evidence “is directed to or establishes” that the he took part in hostilities against the United States – and that the district court erred by basing his detention on the sole ground that he was “part of” the Taliban or Al-Qaeda. A tidbit from the Khairkhwa docket: it seems that, only a day after the court of appeals identified the judges who would comprise the panel at argument (Judges Judith Rogers and Merrick Garland, and Senior Judge Stephen Williams), the petitioner asked the court to decide the case on the briefs.  The court’s response?  To shift around the panel’s membership, but, thus far, not to address the petitioner’s request to decide skip argument altogether.  Now, Senior Judge Raymond Randolph will take the place of Senior Judge Williams.  Judges Rogers and Garland remain on the panel. That might mean disposition without argument; again, the court still has not acted on Khairkhwa's motion.  But the absence of any such action, and the change in the judges' line-up, might equally signal the court of appeals' continuing interest in hearing, in person, from the petitioner's lawyer. Whatever the answer, we'll be keeping an eye out for developments in Khairkhwa, and in Hussain, between now and argument time.   Stay tuned.