Armed Conflict Courts & Litigation Criminal Justice & the Rule of Law Terrorism & Extremism

U.S. Responds to Guantanamo Detainee’s Request for Habeas Relief

Hyemin Han, Tia Sewell
Thursday, August 11, 2022, 6:31 PM

The Justice Department asserted that hostilities between the U.S. and al-Qaeda are ongoing to justify the time it is taking to facilitate Khan’s resettlement, months after he completed his sentence.

Published by The Lawfare Institute
in Cooperation With

On Aug. 8, the Department of Justice filed a motion in opposition to a petition for a writ of habeas corpus in the U.S. District Court for the District of Columbia by Guantánamo Bay detainee Majid Khan on June 7 regarding his transfer out of the military prison. Khan contended that his detention is “arbitrary, indefinite and perpetual, and does not serve its ostensible purpose of preventing his return to the battlefield.” To support this point, his lawyers noted that circumstances of U.S. hostilities with al-Qaeda today make it a different conflict than the one in which Khan was initially captured and detained.

The U.S. argues in response that in addition to its “diligent” pursuit of diplomatic efforts to resettle Khan and its continued “prioritizing” of this effort, Khan’s petition also raised questions for which there currently exists no precedent and that there are constitutional questions that 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. It argues that the Executive Branch has made clear that hostilities remain ongoing, in part by citing the successful Aug. 2 drone strike against then al-Qaeda leader Ayman al-Zawahiri. The government argues that the court would have to weigh in on separation of powers issues—namely, which branch of government defines the existence of active hostilities and determines whether an armed conflict has been “terminated” or not—to address Khan's argument, but asserts the court need not reach that question at this time.

Additionally, the U.S. argues that Khan’s status as neither a prisoner of war nor a civilian means that the Geneva Conventions do not “directly and fully apply” to his detention. Nonetheless, the government notes, the Geneva Conventions’ approach to resolving detention is still instructive, as “the 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 conclude detention.” The government argues that Khan “overlooks” that the AUMF and general law-of-war detention authority “necessarily includes the power to resolve his detention in a safe and orderly manner, such as arranging for his resettlement.”

Thus, the U.S. argues that given its good-faith efforts to resettle Khan, the court should “decline to take up adjudication of the numerous issues of statutory interpretation and constitutional and international law” raised in Khan’s petition, decline the request for habeas relief, and give it more time to facilitate the transfer. To support its claim that it has been acting diligently, it notes that U.S. diplomats have asked 11 countries whether they would consider allowing Khan to resettle in their territories. U.S. law explicitly prohibits the use of federal funds to transfer Guantánamo detainees to the U.S., and the response rejects the suggestion of releasing Khan on base. 

Khan, who had been involved with al-Qaeda since 2002, cooperated fully with U.S. authorities while in detention and was set to be released after serving the entirety of his sentence, which ended on March 1, 2022. Khan’s June 7 filing requested that the Biden administration approve Khan’s transfer anywhere outside of Pakistan, where Khan faces risk of persecution.

You can read the response here and below.


Hyemin Han is an associate editor of Lawfare and is based in Washington, D.C. Previously, she worked in eviction defense and has interned on Capitol Hill and with the U.S. Mission to the United Nations. She holds a BA in government from Dartmouth College, where she was editor-in-chief of The Dartmouth independent daily.
Tia Sewell is a former associate editor of Lawfare. She studied international relations and economics at Stanford University and is now a master’s student in international security at Sciences Po in Paris.

Subscribe to Lawfare