76 | Towards the Closure of Guantanamo a. Challenges to the legality of detention 163. Since Boumediene, federal courts have heard more than one hundred habeas petitions filed by Guantanamo detainees involving different categories of challenges. Legality of detention is at the heart of most of those challenges. 189 Between October 2008 and July 2010 the D.C. District Court examined 38 habeas petitions brought by Guantanamo detainees, and concluded that the Government had failed to establish that the prisoners were involved with Al-Qaeda or the Taliban. A number of those successful petitions, however, were reversed or vacated by the D.C. Circuit Court, particularly since mid-2010 when the appeals court in Al-Adahi v. Obama overturned a grant of habeas corpus and criticized the decision for “having tossed aside the government’s evidence, one piece at a time.” 190 164. The decision in Al-Adahi v. Obama marked an important change in approach. A report issued by Seton Hall University Law School’s Center for Policy and Research examined the outcomes of habeas review for Guantanamo detainees before and after the July 2010 grant reversal in Al-Adahi v. Obama. 191 It examined 46 of the 63 cases that resulted in opinions between November 2008 and October 2011 (it excluded the Uighurs cases because the district court did not have to make factual findings given that the government conceded their case). According to the findings of the research, after Al-Adahi the practice of careful judicial fact-finding was replaced by judicial deference to the Government’s allegations. The report points out that before Al-Adahi detainees won 59% of the habeas petitions and courts rejected the government’s factual allegations 40% of the time. However, after that decision, detainees won 8% of the petitions and the courts rejected 14% of the government’s factual allegations. The report concludes that “the shifting patterns of lower court decisions could only be due to an appellate court’s radical revision of the legal standards thought to govern habeas petitions.” 165. In January 2010, a D.C. Circuit panel held in Al-Bihani v. Obama that the procedural protections afforded in habeas cases involving wartime detainees do not need to mirror those provided to persons in the traditional criminal law context. Accordingly, a lower procedural standard may exist as “national security interests are at their zenith and the rights of the alien petitioner [are] at their nadir.” 192 In a decision adopted on December 14, 2012, in Khairkhwa v. Obama the D.C. Circuit Court held that the AUMF did not require the Government to show that the detainee had engaged in hostilities or would pose a danger to the U.S. if released. Because 189 190 191 192 Congressional Research Service, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, February 3, 2010. Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010). Seton Hall University School of Law, Center for Policy & Research, No Hearing Habeas: D.C. Circuit Restricts Meaningful Review, May 1, 2012. Available at: http://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/upload/hearing-habeas.pdf Congressional Research Service, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, February 3, 2010, p. 47, citing In re Guantanamo Bay Detainee Litigation, No. 08-0442, 2008 WL 5245890, Order, at *1 (D.D.C., December 16, 2008)(Hogan, J.). Organization of American States | OAS