Detention: Law of: Supreme Court Development

Uthman Cert Petition

By Benjamin Wittes
Saturday, September 24, 2011, 9:34 PM

Uthman Abdul Rahim Mohammed Uthman, a Guantanamo habeas petitioner, has filed a cert petition, asking the Supreme Court to review the D.C. Circuit's March decision in his case. The cert petition presents two questions for review:

1. Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.

2. Whether the AUMF, as applied by the court of appeals for the D.C. Circuit, violates the command of Boumediene v. Bush, 553 U.S. 723, 768 (2008), that “[t]he habeas court . . . [will] . . . conduct a meaningful review of . . . the Executive’s power to detain” an individual, and violates the Suspension Clause, U.S. CONST. art. I, § 9, cl. 2.

The petition presents a direct, frontal attack on the manner in which the D.C. Circuit assesses whether a detainee is "part of" an enemy group. Its principal reason for granting the writ begins as follows:

In this and other Guantánamo cases, the court of appeals has held that being “part of” al Qaeda ipso facto makes an individual detainable under the AUMF. The test for determining whether an individual was “part of” al Qaeda is described by the court as an indefinite, “functional” one, which the court says is to be applied “case by case.” The test, however, is infinitely malleable in application. The court did not identify anything Uthman did for or on behalf of al Qaeda. Applying its misty “functional” test, however, the court concluded that Uthman was “part of” al Qaeda, even though it did not specify any “functions” performed by Uthman for al Qaeda. This was its justification for the detention of Uthman, now going on ten years, and possibly for the rest of his life.

As stated, . . . in reaching the conclusion that Uthman was “part of” al Qaeda, the court did not consider it necessary to find that Uthman “attended an al Qaeda training camp, fought against the Northern alliance,” or became one of bin Laden’s bodyguards, or that Uthman had purposely and materially supported al Qaeda. The court was also clear that Uthman could “properly be considered ‘part of al-Qaida’” even if he was not within the command structure of al Qaeda. App. 6a (internal quotation marks omitted).

The court of appeals’ “part of’” approach is completely at odds with the purpose and meaning of the AUMF.