United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2010 Decided February 15, 2011
No. 10-5048
SAEED MOHAMMED SALEH HATIM, DETAINEE, CAMP DELTA,
ET AL.,
APPELLEES
v.
ROBERT M. GATES, SECRETARY, U. S. DEPARTMENT OF
DEFENSE, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-01429)
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for appellants. With her on the briefs were Ian
Heath Gershengorn, Deputy Assistant Attorney General, and
Robert M. Loeb, Attorney.
Brian E. Foster argued the cause for appellees. With him
on the brief were S. William Livingston, Alan A. Pemberton, and
David H. Remes. Marc D. Falkoff entered an appearance.
Before: HENDERSON, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
2
Opinion for the Court filed PER CURIAM.
PER CURIAM: Saeed Mohammed Saleh Hatim, a Yemeni
national, is a prisoner at the Guantanamo Bay Naval Base. The
district court granted Hatim’s petition for a writ of habeas
corpus in December 2009. Hatim v. Obama, 677 F. Supp. 2d 1
(D.D.C. 2009). After the district court entered its order, this
court issued decisions inconsistent with several of the district
court’s legal premises. We see no useful purpose in reciting the
evidence. The order granting the writ must be vacated and the
case remanded. The district court candidly acknowledged as
much when it issued a stay of its order pending this appeal.
The district court ruled that the military could detain only
individuals who were “part of” al-Qaida or the Taliban; and that
Hatim did not fit that description. That ruling is directly
contrary to Al-Bihani v. Obama, which held that “those who
purposefully and materially support” al-Qaida or the Taliban
could also be detained. 590 F.3d 866, 872 (D.C. Cir. 2010).
Hatim admits the error, but says it was harmless. We cannot see
how. As the district court stated in issuing the stay, Al-Bihani
“calls into question” a “key determination[]” upon which the
order rested.
The district court also ruled that in order to detain Hatim the
government had to prove that he was part of the “command
structure” of al-Qaida or the Taliban. Our intervening decisions
in Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010), and
Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010), held that
although it is sufficient to show that an individual is in the
command structure, such a showing is not necessary in order to
defeat a habeas petition.
In addition, the district court appeared to evaluate the
evidence on the basis of an approach we have since rejected in
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Al-Adahi v. Obama, 613 F.3d 1102, 1105-06 (D.C. Cir. 2010),
cert. denied, 79 U.S.L.W. 3254 (U.S. 2011). See also Salahi v.
Obama, 625 F.3d 745, 753 (D.C. Cir. 2010).
In light of these legal developments occurring after the
district court issued its order, the government and Hatim should
have the opportunity on remand to present additional evidence.
Vacated and remanded.