The US Department of Justice has decided on a military prosecution for Afghan Guantánamo Bay detainee Obaidullah, according to court filings Jan. 6. Obaidullah was initially charged by the military in 2008 with hiding and storing anti-tank mines to be deployed against US forces in Afghanistan. He has been held at Guantánamo since 2002. The US government must now decide whether to formally try Obaidullah in a military commission.

An official from the US Department of Defense said Jan. 6 that about one in five detainees freed from the US military prison at Guantánamo Bay have returned to terrorist activities, according to a new Pentagon report. The report, which remains classified, shows an increase from the 14% recidivism rate reported last spring. That number was up from 11% in December 2008. The report was completed in late December, and officials have not released the raw numbers on which the 20% figure is based. Many human rights groups dispute the numbers, calling them inflated, and some reports have suggested that many Guantánamo detainees are innocent, never having engaged in terrorist activities in the first place. (Jurist, Jan. 7)

The US Court of Appeals for the Fourth Circuit Jan. 4 upheld the conviction and life sentence of accused 9-11 conspirator Zacarias Moussaoui. Moussaoui's lawyers had requested that his guilty plea and be withdrawn and a new trial be granted, arguing that his plea was involuntary due to Fifth and Sixth Amendment violations. They also argued that his unawareness of the charges against him violated Rule 11 of the Federal Rules of Criminal Procedure and that his trial counsel did not have access to statements made by al-Qaeda members denying Moussaoui's involvement in the 9-11 conspiracy. The appeals court rejected all of those arguments and "affirm[ed] Moussaoui's convictions and sentences in their entirety."

On Dec. 29, President Barack Obama issued Executive Order 13526, setting new standards for how "national security" information is to be kept secret by federal government agencies. The Obama order replaces Executive Order 12958, issued by President Clinton in 1995 and amended by President Bush in 2003. Obama's order makes several significant changes to the policies of the two previous presidents, most notably in the treatment of historical materials more than 25 years old.

The Guantánamo Bay military prison may have to remain open until 2011 to allow an Illinois prison time to prepare for the arrival of the detainees, according to Dec. 23 AP reports. A spokesperson for Senator Dick Durbin (D-IL) said the government's plan to purchase the Thomson Correctional Center and refit it will take months to complete, rendering President Barack Obama's original promise to close the Guantánamo detention facility by January 22, 2010, impossible.

A judge for the US District Court for the District of Columbia on Dec. 16 granted Yemeni Guantánamo Bay detainee Saeed Hatim's petition for habeas corpus, ordering his release. The US Department of Defense alleged that Hatim trained at the al-Farouq paramilitary camp in Afghanistan. Judge Ricardo Urbina's ruling remains sealed, and lawyers have declined to elaborate on his reasoning. A spokesperson for the US Department of Justice said the government is currently considering its options.

A judge for the US District Court for the District of Columbia Dec. 14 denied Yemeni Guantánamo Bay detainee Musa'ab Al-Madhwani's petition for habeas corpus, ruling that the government may continue to detain him. Judge Thomas Hogan excluded from evidence statements made to interrogators, finding them to be the product of abusive techniques, but admitted statements made during military hearings because they were given years after the alleged abuse. Hogan found that while he does not believe that Madhwani poses a threat, the government met its burden of proving that he was a member of al-Qaeda. Madhwani has been detained at Guantánamo since October 2002.

The US Supreme Court on Dec. 14 declined to hear a lawsuit by four UK citizens and former Guantánamo Bay detainees against former US defense secretary Donald Rumsfeld and other military officials. The Court denied certiorari in Rasul v. Myers, leaving in tact a ruling by the US Court of Appeals for the DC Circuit.