Today the D.C. Circuit issued its disposition of (Tofiq) Al Bihani v. Obama (Case No. 10-5352) with an order granting the parties’ joint motion for summary affirmance. The parties had agreed in their motion that “to pursue [the] appeal would be futile,” and the D.C. Circuit reiterated their positions in its order (citations removed):
Although appellant objects to the district court’s decision upholding his detention and contends the district court applied an erroneous legal standard, the parties jointly agree that this court’s decisions foreclose appellant’s arguments challenging the lawfulness of his detention under the Authorization for Use of Military Force or the laws of armed conflict. Accordingly, appellant joins the motion for summary affirmance in recognition of the futility of pursuing the current appeal and as an expeditious means to obtain a judgment of this court that will allow him to seek review by the Supreme Court.