Wednesday, September 7, 2011
A three-judge panel of the D.C. Circuit ruled this week in Khan v. Obama that Guantanamo detainee Shawali Khan is lawfully detained under the Authorization for Use of Military Force. The court upheld the lower court's denial of habeas relief for Khan based on its finding that "it is more likely than not that Khan was 'part of' HIG," Hezb-i-Islami Gulbuddin, an associated force of al Qaeda and the Taliban.
The government based its case on Army intelligence collectors' declarations based on their interviews with three Afghan informants and (scant) corroborating evidence, including heavily redacted intelligence reports. (The lower court described one as "perhaps the most redacted report in history.") The courts nevertheless rejected Khan's arguments that he was not part of HIG at the time of his capture in late 2002 and that HIG was not an associated force of al Qaeda or the Taliban at that time. The lower court found, and the appeals court affirmed, that the preponderance of the evidence showed that Khan was "part of" HIG, and that HIG was an associated force of al Qaeda and the Taliban.
Khan has been held at Guantanamo since early 2003. He filed his habeas case in federal court soon after the Supreme Court ruled in Boumediene v. Bush (2008) that the privilege of habeas extends to Guantanamo detainees. He will presumably receive periodic review now under President Obama's March 2011 Executive Order establishing the periodic review process for Guantanamo detainees. But the standard for period review is high: Khan will have to show, with little help and against the weight of the government, that his detention is not "necessary to protect against a significant threat to the security of the United States." If he can't so show, he'll apparently be subject to detention as long as U.S. forces are fighting al Qaeda and the Taliban--potentially indefinitely.