Detention: Law of

The Khairkhwa Decision and Updated Habeas Numbers

By Benjamin Wittes
Friday, June 24, 2011, 7:29 AM

Yesterday's release of the Khairkhwa decision prompts a few thoughts--and an update to the habeas data.

The lengthy (79-page) opinion is an interesting document that, I suspect, will not have a profound impact on many other habeas cases. This case involves a very high-level Taliban guy--who had served as the Taliban's acting interior minister and as governor of a strategic province. The major facts about the case were not in dispute: There was no question, for example, of his identity or the positions that he held. The question, rather, was whether he was some kind of civilian Taliban official who was, as a result of his having no military role, not subject to detention under the AUMF. The body of the opinion is a detailed examination of what is known about Mullah Khairkwa's role in practice and a rebuttal of the claim that he played no military role. It is a meticulous document, but I doubt that a great many habeas cases will turn on any related question. Rather, as Judge Urbina notes at the outset, most Guantanamo habeas cases involve more mundane disputes: Did the detainee take training, stay at guesthouses, and travel to Afghanistan for jihad? Here there is no dispute that the detainee was "part of" the Taliban. The only question was whether he "part of" the Taliban's military forces. Judge Urbina had no trouble concluding that he was.

Nonetheless, there is a theoretically important question here--particularly if one were at war with a group like the IRA, which had a separate civilian wing, or even Hamas, which has all sorts of affiliated organizations engaged in non-terrorist activities. The government conceded in this case that had Khairkhwa really had no military role but been a mere civilian administrator, he would not be detainable. In the case of the Taliban--and certainly Al Qaeda--this theoretically important concession will effect very few cases. The Taliban is a militia that took over a government. Its people tended to wear more than one hat at a time, and the Taliban's governance structure guaranteed that. Judge Urbina, for example, spends a few pages showing that under the Taliban's governance structure, the petitioner's role as governor of Herat involved military responsibilities. I think it will be very difficult in practice for any detainee, conceding that he was part of the militia-government, to convince a court that he was the equivalent of a civilian official. It's possible, particularly--I suspect, for a mid-level official about whom the government might unable to obtain a great deal of information documenting a military role. But it will be a hard sell.

Still, it is a notable thing that the government conceded--and Judge Urbina proceeded on the assumption that--"part of" the enemy must really mean "part of" the enemy's military wing.  If the Taliban and Al Qaeda had civilian wings in any meaningful sense, this might be a real opening for certain detainees.

The new decision leaves the habeas numbers as follows:

Uighur cases in which detention was deemed or conceded unlawful: 17

Petitioners’ district-court wins pending at D.C. Circuit: 2

Petitioners’ district-court wins not appealed by the government or cases in which the government’s initial appeal was later dismissed: 14

Petitioners’ district-court wins resulting in a remand by the D.C. Circuit to district court, with remand pending: 2

Petitioners’ merits wins at D.C. Circuit: 0

Government’s district-court wins not appealed by the petitioner, including cases in which the petitioner’s initial appeal was later dismissed: 4

Government's district-court wins that will likely be appealed: 1

Government’s district-court wins pending at D.C. Circuit: 8

Government’s district-court wins resulting in a remand by the D.C. Circuit to district court, with remand pending: 2

Government’s merits wins at D.C. Circuit: 10

Post-Boumediene merits decisions in which cert. has been denied: 4