Khan v. Obama (D.D.C.) (habeas denied); proposed changes to the FISC rules of procedure

1. Shawali Khan v. Obama (D.D.C. Aug. 3, 2010) (denying habeas relief to GTMO detainee)

Judge Bates has issued an order (see attached) denying the habeas petition of Shawali Khan. The opinion itself has not yet been released. For those tracking the ultimate numbers, district judges have denied relief to 16 GTMO detainees while granting relief to 21 detainees via habeas (in addition, the D.C. Circuit previously granted relief to the 17 Uighur detainees in the only case decided on the merits under the now-defunct Detainee Treatment Act system (involving direct appeal from a CSRT determination).

If you are interested in Khan’s case and want to read about it a bit more while waiting for the unredacted opinion to be published, you might have a look at the decision Judge Bates issued in July 2009 denying Khan’s expedited motion for judgment on the record prior to the completion of discovery. Of note, that earlier opinion notes that the case against Khan rested at least in part on his alleged involvement with Heb-i-Islami Gulbuddin (“HIG”) rather than al Qaeda or the Afghan Taliban associated with Mullah Omar. That is, the case at least at that point illustrated the potential applicability of the AUMF to co-belligerents of al Qaeda and the Taliban. Then again, Khan in that earlier motion accepted for the sake of argument that proof of such affiliation would justify his detention (he limited his argument to contesting the sufficiency of the government’s evidence). Also, it appears from the attached order that the government filed a supplemental factual return, so it may be that the government ultimately linked Khan directly to a group other than HIG. In any event, this will be one issue worth looking at once the unclassified opinion becomes available.

2. proposed amendments to the FISC Rules of Procedure

Greg McNeal (Pepperdine) has a very useful post concerning proposed amendments to the Rules of Procedure of the Foreign Intelligence Surveillance Court. He catches a point that I had not noticed concerning the capacity of the FISC to publish opinions without ex ante Executive branch review for purposes of protecting classified information.

Khan – Petition denied – 09.03.10.pdf

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