Oral Argument Suggests D.C. Circuit Will Affirm Denial of Habeas to Guantanamo Detainee

The panel’s fact-based questioning in Friday’s oral argument in Suleiman v. Obama, No. 10-5292, “hint[ed] at a likely affirmance, grounded on the sufficiency of the evidence underlying [Judge] Walton’s factual findings,” wrote Wells C. Bennett at Lawfare. Suleiman’s counsel, Thomas Sullivan of Jenner & Block, argued that the AUMF does not give the Government detention authority over a Taliban member on the basis of his Taliban membership alone. Questions by Judge Griffith and Judge Garland suggested Suleiman forfeited this argument by failing to raise it in the district court, and the Government agreed with that assessment. Moreover, Judge Tatel‘s questioning pointed out that the district court’s decision to deny habeas was based not just on Taliban membership but on the court’s findings about Suleiman’s presence near the battlefield and in Taliban guesthouses.

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