This is interesting. Today in one of the more recent Guantanamo merits appeals, that of Toffiq Nasser Awad Al Bihani, the government and petitioner jointly filed for summary affirmance of the district court's ruling. The ruling they seek to affirm is Judge Reggie Walton's September 2010 decision denying Al Bihani's petition. Below is the relevant text from the motion:
2. Mr. Al-Bihani does not challenge on appeal the factual findings of the district court, but seeks to argue that the district court applied an erroneous legal standard in upholding his detention. Mr. Al-Bihani contends that he did not participate actively and directly in hostilities against the United States, and did not intend to engage in hostile acts against the United States, in his view he cannot be lawfully detained under the Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001), or the laws of armed conflict.
3. The parties agree that Mr. Al-Bihani’s arguments on appeal are foreclosed by established circuit precedent. See, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1108 (D.C. Cir. 2010), cert. pet. pending, No. 10-487; Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir.), reh’g and reh’g en banc denied, 619 F.3d 1 (D.C. Cir. 2010), cert. pet. pending, No. 10-7814.1 Because this Court’s decisions are controlling as to the issues Mr. Al-Bihani seeks to raise in this Court, the parties agree that to pursue this appeal would be futile.
4. Mr. Al-Bihani joins this motion for summary affirmance in order to obtain a judgment of this Court allowing him to seek Supreme Court review of the district court’s decision in the most efficient manner possible and in recognition of the futility of pursuing a challenge in this Court to controlling authority.