A federal judge for the US District Court of Appeals for the District of Columbia Circuit [official website] on Friday affirmed [opinion, PDF] a denial of a petition for habeas corpus from Guantanamo Bay [JURIST backgrounder] detainee Khirullah Khairkhwa [NY Times backgrounder]. The US District Court for the District of Columbia [official website] originally denied [opinion, PDF] Khairkhwa's petition for habeas corpus on May 27, 2011, finding that Khairkhwa was a senior member of the Taliban, and had served as a Taliban spokesperson, the Taliban's Acting Interior Minister, the Taliban Governor of Kabul and a member of the Taliban's highest governing body, and thus was lawfully detained. On appeal, Khairkhwa argued first, that the government had to demonstrate that he had "fought or engaged in armed conflict or hostilities against the United States or its allies" and second, that if he were released from Guantanamo, he would post a threat in the future to the United States. The appellate court rejected both arguments, stating:
In order to detain individuals who were part of the Taliban or al-Qaeda forces, proof that the individuals also actively engaged in combat against the United States and its allies is unnecessary...In modern warfare, commanding officers rarely engage in hand-to-hand combat; supporting troops behind the front lines do not confront enemy combatants face to face; supply-line forces, critical to military operations, may never encounter their opposition. As to Khairkhwa's other point—that a person may not be detained unless the evidence also shows that he would pose a danger to the United States if released—Awad squarely rejected the argument. Khairkhwa recognizes this, but insists that Awad was wrongly decided. What he fails to recognize is that one three-judge panel of this court may not overrule another three-judge panel.Khairkhwa has been detained at Guantanamo for over ten years.
Habeas corpus petitions at Guantanamo Bay have generated much controversy. In September, a judge for the US District Court for the District of Columbia rejected [JURIST report] new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. Chief Judge Royce Lamberth expressed skepticism about the restrictions [JURIST report], which in some cases require a lawyer to sign a memorandum of understanding (MOU) [memorandum, PDF] to continue to be able to meet with a client, making any meetings or communications with a client "subject to the authority and discretion" of the Guantanamo commanding officer. In August the DOJ filed a brief [JURIST report] with the court asserting that the government should decide when a Guantanamo prisoner is granted continued regular access to legal counsel absent a detainee's ongoing habeas or other legal challenge. The challenge to the new restrictions was brought by six Guantanamo detainees, two of whose habeas petitions were denied and four dismissed with the possibility of reconsideration. At the time of the hearing lawyers for only six of the 170 detainees at Guantanamo had signed the MOU. In the 10 years since the first detainees were brought to Guantanamo Bay, only a handful have been tried or convicted, and in the past few months there have been several calls by the UN and various foreign governments for some long-held Guantanamo detainees to be returned to their home countries, including Egypt, Canada and Kuwait [JURIST reports].