D.C. Circuit Opinion in Khairkhwa Comes Down

By Benjamin Wittes
Friday, December 14, 2012, 11:56 AM

The D.C. Circuit has handed down its latest Guantanamo habeas case, Khairkhwa v. Obama. The brief, unanimous opinion by Senior Judge A. Raymond Randolph for himself and Judges Judith Rogers and Merrick Garland contains no surprises. As expected, it affirms the detention of a detainee found by the district court to be a senior Taliban official.

The decision opens:

This is an appeal from the judgment of the district court, Urbina, J., denying Khairulla Khairkhwa’s petition for a writ of habeas corpus.

Khairkhwa is a detainee at Guantanamo Bay Naval Base. Khairkhwa v. Obama, 793 F. Supp. 2d 1 (D.D.C. 2011). The Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), authorized the President to detain individuals who were “part of” al-Qaeda, the Taliban, or associated forces engaged in hostilities against the United States or its allies. See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 11–12 (D.C. Cir. 2010). The National Defense Authorization Act for Fiscal Year 2012 affirmed the President’s authority to detain any “person who was a 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” Pub. L. No. 112-81, § 1021, 125 Stat. 1298, 1562 (2011).

Khairkhwa, an Afghan national, became a senior Taliban official in 1994, several years after Soviet troops withdrew from Afghanistan. He admits as much but asserts that he was not a part of the Taliban forces. The evidence presented at a four-day hearing before the district court showed otherwise.