In October 2004, the District of Columbia District Court appointed 14 Federal Defender offices to represent about 50 aliens detained as enemy combatants at the Naval Base in Guantánamo Bay, Cuba. Since that time, attorneys, investigators, and legal assistants have received security clearances and met with clients in a wide range of different factual and legal situations. Teams have filed numerous legal pleadings and ranged the world obtaining corroboration of the factual innocence of many clients. With the dramatic grant of certiorari
after an earlier denial with dissents, this is a good time to review the history of Boumediene
, and to reassess where we are on the legal conflicts, the fate of our individual clients, and the larger context of our litigation.Initial Skirmishes Regarding Access And Rendition
Our clients petitioned the courts in the immediate wake of Rasul
, the June 2004 Supreme Court case establishing jurisdiction to review Guantánamo detention under the habeas corpus statute. Given the time from filing to appointment, the initial stage of litigation involved pleadings to accelerate security clearances and visitation and to protect our clients from rendition to countries where they might face violations of the Convention Against Torture. The scope of our initial efforts was limited by stays already in place pending litigation in the D.C. Court of Appeals to resolve conflicting District Court decisions regarding the right, or lack thereof, of aliens held in Guantánamo.
On the eve of hearings on access, the government granted the requisite clearances and approved our first visits for March 2006, almost a year after Rasul
. On the anti-rendition motions, most District Courts granted 30-day notice requirements before a client could be transferred to give us the opportunity to object. The government appealed. In one case, Judge Leon denied an anti-rendition motion without explanation, from which the detainee appealed.
The access questions as well as rendition were debated in the context of stays from appeals in two sets of cases. Detainees picked up in Algeria sought review of Judge Leon’s decision denying any constitutional rights subject to habeas review; the government appealed the decision of Judge Green finding jurisdiction to review the detention of a group of Uighur detainees. Despite the statutory norm of a return within three days of filing, and the historical norm of habeas corpus as a rapid and decisive equitable remedy for unlawful executive detention, the stays in place from the 2005 pro se filings still freeze out the detainees from obtaining a hearing, regardless of the evidence of complete innocence and lack of initial Defense Department jurisdiction.The Detainee Treatment Act Of 2005 And Hamdan
In December 2005, Congress passed the Detainee Treatment Act
, which purported to strip jurisdiction from the federal courts over aliens detained at Guantánamo. Because the statute appeared to apply only prospectively, we asserted that the DTA did not apply to our clients and that the habeas courts should lift the stays to reach the merits. In addition to constituting an unconstitutional suspension of the writ of habeas corpus, the legislation constituted a classic Bill of Attainder and violated the equal protection and due process clauses of the Constitution.
Rather than reach the issues in the District Courts, the stays remained in effect while the D.C. Court of Appeals requested supplemental briefing in the Boumediene
cases. The Federal Defenders filed an amicus curiae brief that argued against retroactive application of the DTA and in favor of construction of the statute to avoid the serious constitutional issues surrounding legislation directed at curtailing existing rights for a small and unpopular group, largely defined by ethnicity and religion (available here
While the D.C. Circuit pondered the supplemental briefing, the Supreme Court accepted certiorari in the Hamdan
case, which involved the war crimes trial of Osama Bin Ladin’s driver. On June 29, 2006, the Supreme Court held in Hamdan
that, first, the DTA did not retrospectively deny the District Court’s jurisdiction over the detainee’s habeas corpus petition; and, second, that the proceedings were unlawful because the military commissions failed to provide adequate protections, including those required by the laws of war and the Third Geneva Convention. The Filter Team Litigation
As soon as Hamdan
came down, the construction of the DTA appeared to open the way for immediate action by the District Courts because the DTA, if prospective only for commission defendants, was also prospective only for the mass of detainees not charged with war crimes. But the District Courts maintained the stays awaiting word from the Boumediene
cases in the Circuit Court. And the government, in the immediate aftermath of Hamdan
, initiated litigation far from the merits.
In June 2006, three detainees died in custody, resulting in a clamp down on prisoners and even harsher confinement. A month later, the government revealed that investigators had seized and reviewed attorney-client documents as part of their investigation into the deaths. On July 7, 2006, eight days after Hamdan
, the government belatedly sought approval for the violation of attorney-client privilege by requesting that the District Courts approve creation of “filter teams” to review the seized documents for evidence related to the deaths and to violations of the protective order governing attorney-client communications.
Judge Leon heard the first group of motions. After a prolonged hearing on the legal and practical difficulties of the government’s proposal, on August 28, 2006, he issued an opinion denying the government’s motions (available here
). He found that his discretion should not be exercised in such a manner and that the government would review attorney-client material at its legal peril. Then, Judge Robertson granted the motions before him, approving of the procedure for the investigation (available here
). Other judges have not ruled on the question to this date. The conflicting decisions have not been resolved, given that the government did not appeal its loss from Judge Leon, and the detainees before Judge Robertson filed no appeal. Investigation And Summary Judgment Motions
After the initial meetings with clients, we began the international investigation necessary to corroborate our clients’ claims of factual innocence. In three cases, we were able to gather precise and compelling evidence that our clients’ exculpatory testimony before the Combatant Status Review Tribunals was true. For example, in Nazar Gul’s case
, we found the employer, the taxi driver, and the pharmacist in Pakistan and Afghanistan who corroborated that our client was an innocent returned refugee apparently picked up because his name resembled someone else. Adel Hamad’s
co-workers in a charitable hospital in Afghanistan corroborated that he is simply a Sudanese hospital administrator with no links to terror or extremism, whose detention the dissenting major in his CSRT called “unconscionable.” And Abdul Rahim Al Ginco
’s account of being a Taliban torture victim and political prisoner for almost two years before his liberation was confirmed not only by family and freed detainees from the same political prison, but from contemporaneous news accounts that included his efforts to approach the American authorities regarding human rights violations in the Taliban prison.
We filed motions to lift the stay and for summary judgment based on the international investigation corroborating the factual innocence of the three clients in September 2006. Shortly thereafter, Congress passed the Military Commissions Act of 2006
, which explicitly sought to retroactively strip jurisdiction under the habeas statute and expanded to this Country’s soil the aliens subjected to the jurisdiction stripping. The MCA left only a limited review directly in the D.C. Court of Appeals for persons claiming they are being held in violation of CSRT procedure or that CSRT procedures violate the law and Constitution, to the extent they apply.
Despite uncontroverted evidence of factual innocence and lack of Defense Department jurisdiction, the stays remained in place pending the resolution of MCA issues in the Court of Appeals in Boumediene
. Once again, the Court of Appeals requested supplemental briefing, this time on the effect of the MCA on the pending appeals. The Oregon Federal Defenders submitted another amicus curiae brief, this time aimed at the inadequate non-habeas remedies and human costs of suspension of the Great Writ of Habeas Corpus (here
). Meanwhile, the motions in the District Court to lift stays languished, deferring to the pending Court of Appeals litigation rather than addressing the unique and separate issues raised in the summary judgment motions.
Finally we received a ruling from the Court of Appeals – and a bad one. In a two-one split decision, the Court of Appeals held in Boumediene
that the MCA applied to strip all jurisdiction from the Courts and that the detainees had no constitutional rights. Dissenting Judge Rogers filed a strong defense of habeas corpus, emphasizing the inadequacy of the DTA remedy to develop facts and law requiring release of wrongfully detained aliens.Stay-And-Abey And The DTA
The Boumediene and Al-Odah legal team quickly put together a petition for certiorari that was joined by a number of amici favoring speedy and decisive resolution of the issues. On April 2, 2007, the Supreme Court denied certiorari, with two accompanying opinions. In a strong dissent
, Justice Souter, joined by Justices Breyer and Ginsburg, adopted the concerns of Judge Rogers, calling for speedy resolution of the issue. Justice Stevens, joined by Justice Kennedy, framed a very careful statement
accompanying the denial of certiorari that raised two issues. First and foremost, the Justices stated that the petitioners’ failure to exhaust the DTA remedy left insufficient information regarding its efficacy, so review was not appropriate “at this time.” Second, the Court made clear that any action prejudicial to the habeas petitioners while the issues were being exhausted should prompt immediate remedial action.
The denial of certiorari led to two parallel actions: the government moved to dismiss all appeals and district court habeas cases for lack of jurisdiction; and petitioners began moving under the DTA for immediate release along with motions to expedite, following DTA actions previously filed in Parhat
The government’s position on dismissal, while aggressive, lacked legal support. Under well-established habeas corpus law, the proper procedure while remedies are exhausted is for the district court to enter a stay-and-abey order, which holds the habeas case in abeyance and maintains the status quo until exhaustion is completed (Rhimes v. Weber
). Dismissal for lack of subject matter jurisdiction is only appropriate where the Supreme Court – not a lower court – has finally decided the question, which emphatically had not occurred with the Boumediene denial of certiorari. The D.C. Circuit law and Supreme Court authority also supported interim authority for orders protecting the habeas petitioners rights while matters are being finally resolved, such as the protective orders and the 30-day notice orders. These protections are particularly important because the government in the direct DTA litigation in the Court of Appeals, attempted to impose a new protective order that sharply limited access to clients.
In a group of consolidated cases, the Court of Appeals granted the government’s motion to dismiss its own appeals of 30-day notice orders and denied the motions to dismiss the underlying habeas petitions, remanding the cases to the District Courts to decide in the first instance whether stay-and-abey orders should be entered or the cases should be dismissed. The sole appellant’s appeal was dismissed based on Boumediene
, which will likely require further review, especially in light of the grant of certiorari last Friday.Where From Here?
The deep freeze of the never-ending stay has left meritorious petitions unheard for almost two years. From April 16, 2007, DTA petitions establishing violations of CSRT procedures and actual innocence have been pending before the Court of Appeals. In contrast to the habeas norm requiring a return in not more than 20 days, the cases are, in effect, stayed pending the outcome of arguments in Bismullah
that do not address dispositive issues, which need no further procedural development, for a ruling on the merits. To the extent Justice Kennedy and Stevens needed to know if the Court of Appeals remedy constituted an adequate substitute for habeas corpus, the answer is a resounding “no.”
The District Courts have also turned a deaf ear to date to requests for expedited consideration – or even a hearing – on lifting the stay and getting to the merits, as illustrated by two examples. Abdul Rahim, whose claims regarding lack of Defense Department jurisdiction and use of the products of Taliban torture are unique, has sought expedited hearing based on the extreme psychological distress from post-traumatic stress disorder and torture syndrome from the brutal torture at the hands of the Taliban, which is aggravated by his treatment for six years at Guantánamo. And Adel Hamad, the Sudanese hospital administrator, simply wants his day in court on the same basis articulated by the major in his case, who found no reasonable basis for considering him an enemy combatant. So far, the stays remain in place and the government has not even been compelled to respond to the claims of innocence.
But it’s not all dismal. Nazar Gul is now back with his family in Afghanistan. The military made use of the innocence investigation, the government determined he could be repatriated but without renouncing its categorization of him as an enemy combatant. A week after we spoke together at Guantánamo, Nazar Gul was home with his mother. We are seeking to maintain his habeas corpus petition based on the obvious collateral consequences of the false label enemy combatant. Interestingly, the MCA does not apply to him because he is no longer at Guantánamo, leaving him in the pure Rasul
position based on the jurisdiction at the time of the filing.
Adel Hamad also received notice he can be repatriated. His defense team received assurances in Sudan that repatriation can occur immediately. Nonetheless, our government has yet to transfer him. There are detainees who have been declared free to leave for over a year. And the enemy combatant status has not been reversed, so Adel continues in the limbo of indefinite detention, far from his loving and suffering family, who you can see in this short video
Abdul Rahim continues in custody with a motion to expedite pending the Court of Appeals decision in Parhat
and with the District Court motion to lift stay still pending. Especially given his status as a witness to human rights violations, the continued incarceration of this Taliban torture victim is cruel and senseless. The sooner he has a hearing with an opportunity to clear his name, the sooner the return issues can be addressed for a Syrian Kurd tortured by the Taliban into falsely stating he was an American spy, then treated by Americans as a terrorist based on video-tapes resulting from the Taliban torture.
So the struggle continues on several fronts. In the District Courts, we try to maintain the habeas actions and to persuade judges to address unique facts and law not addressed in other forums. In the Court of Appeals, we are objecting to use of the Boumediene
majority opinion while the Supreme Court case is pending, while seeking expedited review even under the limitations of the DTA review for CSRT violations. In the military proceedings, we provide the evidence of innocence and request that the enemy combatant determinations be vacated. In the Supreme Court, we congratulate the tenacious advocacy by the teams representing Boumediene
and stand ready to provide any assistance in what promises to be an extremely scary, defining moment, on our Country’s history.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon