I posted earlier a summary by Larkin Reynolds of the coming argument in Salahi v. Obama–which the D.C. Circuit is hearing on Friday. I also posted the briefs. I think this case is a big deal, one that stands to make a significant mark on the law of detention. For those readers in the press, it has been undercovered and warrants more attention than it has received. It is not simply a tally on the scorecard (one that I believe will, one way or another, go from the detainee win column to the government win column). It’s a case that will affect other cases. Here’s why.
Let’s start with the fact that Salahi may be a very dangerous guy. The district court judge, even in granting the writ, made some startling factual findings about him. He swore an oath of loyalty (bayat) to Osama Bin Laden. He hosted some of the 9/11 hijackers and plotters at his house. He wired money on behalf of a senior Al Qaeda leader. He spent time hobnobbing with several important Al Qaeda terrorists, including the perpetrator of the attempted 2000 bombing of LAX. As Judge James Robertson ominously put it in nonetheless rejecting his detention, “the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. That concern may indeed be well-founded.” This is not, in short, the case of someone who, if the government is right, is some low-grade fighter who went to Afghanistan as the cannon fodder of international jihad–or a cook for the canon fodder of international jihad. This is, if the government is right, the kind of person we’re all worried about.