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Uthman Oral Argument Preview

Thursday, February 10, 2011

Tomorrow morning, a panel of the D.C. Circuit Court of Appeals will hear arguments in another Guantanamo habeas case, that of Uthman Abdul Rahim Mohammed Uthman (Case No. 10-5235). The case, captioned underAbdah v. Obama, is a government appeal of the ruling by U.S. District Judge Henry Kennedy from last spring granting the writ to Uthman, a Yemeni the government believes to be an Al Qaeda fighter. The case was the subject of extensive coverage by Propublica’s Dafna Linzer (here and here). And it is important for at least two reasons. First, as Dafna reported, Uthman is one of the 48 detainees (now down to 47 with the death of Awal Gul) whom the Obama administration considers too dangerous to release but impossible to bring to trial; to my knowledge, he is the only one of this group of detainees to have won a habeas case at the lower court. This makes the appeal a relatively high-stakes matter for the government. On a legal level, moreover, his case presents important questions concerning both the definition of the detainable class of individuals and how the district court should weigh constellations of evidence that are consistent with, but do not directly prove, membership in an enemy group. To put the matter simply, Uthman’s case will test how serious the D.C. Circuit is about some of the principles it outlined in its dramatic Al Adahi opinion last summer.

The government considers Uthman to be a serious bad guy–someone who was recruited into Al Qaeda in Yemen, traveled to Afghanistan, became a body guard for Osama Bin Laden, fought with Al Qaeda at Tora Bora, and was captured with numerous other Al Qaeda fighters fleeing the area. It managed to convince Judge Kennedy, however, of only a fraction of this.

Continue reading Benjamin Wittes at Lawfare