Khan v. Obama (D.D.C. Sep. 3, 2010)

October 7, 2010

* Khan v. Obama (D.D.C. Sep. 3, 2010)

A while back I posted a notice that Judge Bates ruled for the government in this GTMO habeas action. The redacted opinion is now available here.

Among other interesting passages is the following description of the substantive scope of the government’s detention authority, written after the Circuit majority’s dicta-fication of the panel decision in al Bihani. There has been some discussion of whether the al Bihani panel’s views on the substantive scope of detention authority survived the unwinding of the panel’s language about international law’s relevance; Judge Bates, according to this passage, treats it as having continued authority on the scope question. As a result, the court’s description includes reference both to membership in an AUMF-covered group and those who provide material support to such a group:

The AUMF authorizes the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." AUMF, § 2(a). Such "necessary and appropriate force" includes the power to detain combatants subject to such force. See Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion); AI-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) [hereinafter AI-Bihani II]. The scope ofthis power is broad: the government may detain any individual "engaged in hostilities … against the United States," who "purposefully and materially supported hostilities against the United States or its coalition partners," or who "is part of the Taliban, al-Qaida, or associated forces." AI-Bihani II, 590 F.3d at 871-72; see also Hamlily v. Obama, 616 F. Supp. 2d 63,75 (D.D.C. 2009).

"[T]here are no settled criteria," for determining who is "part of" the Taliban, al-Qaida, or an associated force. Hamlily, 616 F. Supp. 2d at 75; accord Bensayah v. Obam~ 610 F.3d 718, 725 (D.C. Cir. 2010). "That determination must be made on a case-by-case basis by using a functional rather than formal approach and by focusing on the actions of the individual in relation to the organization." Bensayah, 610 F.3d at 725; accord Hamlily, 616 F. Supp. 2d at 75. The Court must consider the totality ofthe evidence to assess the individual’s relationship with the organization. See Naji al Warafi v. Obama, —F. Supp. 2d —-, 2010 WL 1404001, at *4 (D.D.C.2010). But being "part of" the Taliban, al-Qaida, or an associated force requires "some level ofknowledge or intent." Hamlily, 616 F. Supp. 2d at 75; see also Bensayah, 610 F.3d at 725 ("purely independent conduct of a freelancer is not enough" to demonstrate an individual was "part of" an organization.).