Cert Petition Challenges D.C. Circuit’s Holding that One Is Detainable Under the AUMF by Virtue of Being “Part of” Al Qaeda.

A Guantanamo detainee filed a petition for certiorari in the Supreme Court yesterday, after the D.C. Circuit reversed his habeas grant in Uthman v. Obama, No. 10-5235, 637 F.3d 400 (D.C. Cir. Mar. 29, 2011) (Kavanaugh, J., joined by Garland & Griffith, JJ.).

Questions Presented:

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.

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that the constitutional habeas right extends to Guantanamo detainees, but “d[id] not address the content of the law that governs petitioners’ detention.” Since then, the Supreme Court has declined to grant cert in a Guantanamo case.

(Hat Tip: Benjamin Wittes at Lawfare)

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