Detention: Law of: Supreme Court Development

Al Madhwani Cert Opposition Filed

By Benjamin Wittes
Friday, January 27, 2012, 9:22 AM

The government has filed its opposition to cert in the case of Al Madhwani v. Obama--a Guantanamo habeas case. Al Madhwani's cert petition seeks review of this DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan’s earlier opinion. The government's argument is interesting because it explicitly invokes the new language in the NDAA:

In response to the attacks of September 11, 2001, Congress enacted the AUMF, which 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, or harbored such organizations or persons.” AUMF § 2(a), 115 Stat. 224. The President has ordered the Armed Forces to subdue both the al-Qaida terrorist network and the Taliban regime that harbored it in Afghanistan. Armed conflict with al-Qaida and the Taliban remains ongoing, and in connection with that conflict, some persons captured by the United States and its coalition partners have been detained at Guantanamo Bay. In Section 1021 of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), Pub. L. No. 112-81, 125 Stat. 1561 (2011), Congress “affirm[ed]” that the authority granted by the AUMF includes the authority to detain, “under the law of war,” any “person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

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As relevant here, the court of appeals has repeatedly held that an individual may be detained under the AUMF if he was part of al-Qaida at the time of his capture. See, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1103 (D.C. Cir. 2010) (“The government may * * * hold at Guantanamo and elsewhere those individuals who are ‘part of’ al-Qaida, the Taliban, or associated forces.”), cert. denied, 131 S. Ct. 1001 (2011); accord Al Odah v. United States, 611 F.3d 8, 10 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1812 (2011); Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011); Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011); accord NDAA § 1021, 125 Stat. 1561 (“affirm[ing] the authority of the President to * * * detain” any “person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners”).