On August 8, the Department of Justice filed a motion opposing a petition for a writ of habeas corpus in the United States District Court for the District of Columbia by Guantanamo Bay inmate Majid Khan on June 7 regarding his transfer out of military prison. Khan supported that his detention is “arbitrary, indefinite and perpetual, and does not serve his ostensible purpose of preventing his return to the battlefield”. To support this point, his lawyers noted that the circumstances of the US hostilities with al-Qaeda make it a different conflict today than the one in which Khan was originally captured and detained.
The United States argues in response that in addition to its “diligent” pursuit of diplomatic efforts to reinstall Khan and its continued “prioritization” of this effort, Khan’s petition has also raised issues for which there is no currently no precedent and that there are constitutional issues which the court should refrain from reaching at this time.
In particular, the government questions Khan’s assertion that active hostilities have ceased and that the Authorization for the Use of Military Force (AUMF) no longer authorizes his detention. He argues that the executive branch has made clear that hostilities are continuing, in part citing the success of the Aug. 2 drone attack on al-Qaeda leader Ayman al-Zawahiri. The government argues that the court should weigh in on questions of the separation of powers – namely, which branch of government defines the existence of active hostilities and whether an armed conflict has been “ended” or not – to answer the Khan’s argument, but says the court need not address this issue at this time.
In addition, the United States argues that Khan’s status as neither a prisoner of war nor a civilian means that the Geneva Conventions do not apply “directly and fully” to his detention. Nonetheless, the government notes, the Geneva Conventions approach to resolving detention is still instructive, as “authority to detain must include ‘authority to resolve’— the authority to detain pending efforts to ensure a safe and orderly release — while the government continues to make good faith efforts to end detention. The government argues that Khan “forgets” that the AUMF and general authority for detention under the laws of war “necessarily include the power to resolve his detention in a safe and orderly manner, such as arranging for his relocation.”
Thus, the United States argues that given its good faith efforts to reinstall Khan, the court should “decline to rule on the many issues of statutory interpretation and constitutional and international law” raised in Khan’s petition, deny the habeas petition, and give him more time to facilitate the transfer. To back up his claim that he acted diligently, he notes that US diplomats asked 11 countries if they would consider allowing Khan to resettle in their territories. U.S. law explicitly prohibits the use of federal funds to transfer Guantanamo detainees in the United States, and the response rejects the suggestion to release Khan on the base.
Khan, who had been involved with al-Qaeda since 2002, cooperated fully with U.S. authorities while in custody and was expected to be released after serving his full sentence, which ended on March 1, 2022. Khan’s case of June 7 demanded that the Biden administration approve the transfer of Khan anywhere outside of Pakistan, where Khan faces persecution.
You can read the answer here and lower.