The Khan Opinion

After reading the Khan opinion, I find that I don't have a great deal to say about it. It does not significantly alter the discussion of any of the issues Bobby and I have been writing about--save that it is, I believe, the first opinion to find someone detainable on the basis of being "part of" an "associated force." It presents a somewhat unusual fact pattern; the detainee is not someone rounded up in the dragnet of foreign fighters fleeing Afghanistan in 2002 but someone that U.S. forces actively went out and captured following the receipt of intelligence particular to him. As such, its focus veers away somewhat from the unusual inquiry in these habeas cases: What combination of alleged recruitment by, training by, association with, and integration into foreign forces suffices to make one "part of" the enemy? Partly as a result, nothing about the opinion stands out to me as raising an important appeals question with implications for lots of people other than Khan; it's written with Judge Bates's usual care and rigor. But it's not one of the cases that has broad implications. The contrast on that point between Khan and Al Kandari, a decision which came down around the same time and on which I commented here, offers a useful illustration of the dangers of the "scorecard" approach to habeas litigation--a matter which Lawfare readers know is something of a hobby horse with me. According to the scorecard, both are merely government wins. But not all wins are created equal. Khan has little implication beyond its own unusual facts. Al Kandari, by contrast, marks a significant methodological shift in the way the district court treats detainees it regards as not credible. That will, or at least could, affect lots of other cases. In my book, at least, Khan should be worth many fewer points for the government than Al Kandari.