Federal appeals court upholds indefinite detention of Gitmo detainee

The US Court of Appeals for the District of Columbia Circuit on Sept. 6 affirmed the 2010 denial of petition for a writ of habeas corpus for Guantánamo Bay detainee Shawali Khan. Khan is an Afghan citizen who, at the time of his capture in mid-November 2002, lived in Kandahar, and is accused of belonging to Hezb-Islami Gulbuddin (HIG), an active Afghan insurgency group with ties to the Taliban. On appeal, Khan contended there is insufficient reliable evidence in the form of government-offered intelligence reports to establish that he was part of HIG at the time of his capture. The court explained its standard of review in evaluating Khan’s appeal:

Whether a detainee was “part of” an associated force is a mixed question of law and fact. That is, whether a detainee’s alleged conduct is sufficient to make him “part of” a force and whether the alleged connections between that force and al Qaeda and/or the Taliban are sufficient to render it an “associated force” are legal questions that we review de novo. Whether the government has proven that conduct and those connections, however, are factual questions that we review for clear error.

After a lengthy analysis of evidence and the district court’s findings, the appeals court found that there was no clear error of law or fact and affirmed the denial of Khan’s petition.

Last September, Judge John Bates of the US District Court for the District of Columbia ruled that the US government can indefinitely hold Khan at the detention facility in Guantánamo. Lawyers for Khan have argued that he was a shopkeeper in Kandahar and not involved with fighting against US forces. They contended that Khan was captured by corrupt Afghans who turned him over to US forces and lied about his involvement with insurgents. The defense also presented evidence that HIG had no presence in the Kandahar region when Khan was captured. The case against Khan relies heavily on intelligence gathered through several informants, some of whom are disaffected members of HIG. According to the court’s opinion, such intelligence ultimately led to a decision by US military officials to neutralize the supposed Kandahar HIG cell, including the operation to detain Khan at his shop. Khan’s home and shop were searched after his arrest, yielding a variety of physical evidence in the form of notebooks and letters. Heavily redacted classified intelligence reports state that the search of Khan’s properties uncovered further, particularly incriminating evidence that confirmed his role in the Kandahar HIG cell.

From Jurist, Sept. 7. Used with permission.