Salih v. Obama; Hatim v. Obama

1. Salih v. Obama (D.D.C. Dec. 30, 2009) (dismissing habeas petition)

Just before the new year, Judge Urbina issued an order dismissing (without prejudice) a GTMO habeas petition filed in the name of Abdul Salih, apparently on the ground that Salih has refused to authorize the attorneys involved to pursue such relief.  This is one of an increasing number of GTMO habeas cases that have quietly gone away because the detainee is unwilling, for whatever reason, to pursue it.  The brief order is posted here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1234-33

2. Hatim v. Obama (D.D.C. Dec. 16, 2009) (granting habeas petition)

Back on December 16th, I noted that Judge Urbina had placed a notice on the docket memorializing the grant of a habeas petition on behalf of Saeed Hatim, and promised to follow up with the redacted opinion whenever it became available.  It is now available here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1429-337

In brief, Judge Urbina holds that (i) the government’s substantive detention authority extends to those who are part of AQ, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners, but not also to persons who merely provide material or direct support without being part of the group (yes, this appears to conflict with today’s Circuit ruling in Al Bihany), and (ii) the government evidence was not sufficiently credible to support the allegations meant to establish such membership (in large part because of lingering taint from prior abusive interrogations of the detainee).  Note that the latter part of the ruling would require dismissal even if Judge Urbina had adopted the broader, Al Bihany standard for substantive scope of detention power.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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