First up for the three-judge panel of D.C. Circuit Judges Merrick Garland, Karen LeCraft Henderson, and David Tatel this morning is its second oral argument related to the detention of Afghan detainee Obaydullah. Given that the last oral argument in this case was conducted in a classified setting, it shouldn't be too much of a surprise if the sequel is conducted behind closed doors too: the parties submitted a joint letter conceding the need for a closed session, but indicating that that they would take the court's questions that can be answered in public in an open session, as well.
An Afghan detainee at Guantanamo, Obaydullah was picked up by U.S. forces in 2002 with a notebook among his belongings that contained IED designs. Anti-tank mines also had been buried near his home, and a car was discovered, containing dried blood.
The D.C. Circuit already rejected Obaydullah's habeas petition, back in 2012. But, prior to the D.C. Circuit's decision, the detainee separately filed a motion in the district court seeking relief under Rule 60(b)(2) of the Federal Rules of Civil Procedure, maintaining that new evidence demonstrated that one item used against him in his habeas case---the bloodied car---had a "innocuous" explanation and thus that the judgment should be corrected: his wife had given birth in the car. A military commission defense counsel investigation into the matter identified family member witnesses who could confirm the source of the blood as not coming from al Qaeda fighters injured in an accidental IED explosion as the government had argued, and instead from the birth of Obaydullah's daughter. We summed up District Court Judge Richard Leon's order denying Obaydullah's "Hail Mary" motion back in 2013.
Obaydullah argues that the lower court abused its discretion in denying his 60(b)(2) motion, and that Judge Leon did not reevaluate the evidence it used to identify the source of the blood, that the evidence isn't cumulative, and that Obaydullah exercised due diligence in obtaining the evidence. In requesting either a reversal or a remand for further proceedings, the detainee also rejects the government's procedural argument that the motion was filed in an untimely manner.
The government has both substantive as well as procedural issues with Obaydullah's arguments. A single piece of evidence, which the government dubs as "minor" in the scheme of things, isn't sufficient to bring a district court to reopen its judgment. Other evidence, like the notebook, the cache of anti-tank mines and Obaydullah's inconsistent stories, was far more instrumental in leading the district court to reject Obaydullah's habeas petition. The government also maintains that the 60(b)(2) motion was filed too late, since it was turned in more than one year after the district court denied Obaydullah's habeas petition.
The parties will each have ten minutes to make their arguments, although whether your Lawfare correspondent will actually be privy to their remarks is up in the air.