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This collection includes CRS reports from the mid's through the present--covering a variety of topics from agriculture to foreign policy to welfare. What responsibilities do I have when using this report? Employing this standard, the circuit panel examined the evidentiary record including false exculpatory statements made by the petitioner during interrogation , 30 and concluded that the government had satisfied its evidentiary burden of proving that the petitioner was subject to detention on account of membership in Al Qaeda.
The circuit panel also concluded that some of the individual pieces of evidence proffered by the government—including evidence showing that the petitioner had voluntarily stayed at an Al Qaeda guesthouse and had received and executed orders from Al Qaeda members while at a weapons training camp—constituted sufficient grounds to justify his detention. This case involved the review of a district court's denial of habeas relief to a Guantanamo detainee whom the government alleged to have been "part of" Al Qaeda at the time of capture.
The petitioner, a Yemeni national, admitted to U. He was subsequently injured in an air raid, which resulted in the amputation of one of his legs. When Al Qaeda took over a portion of a hospital where petitioner was being treated, he allegedly joined Al Qaeda fighters barricaded there when coalition forces attempted to re-take the hospital, but he was surrendered by Al Qaeda fighters due to his injury.
In upholding the district court's denial of habeas relief, the circuit panel rejected several legal and factual challenges raised by petitioner. As an initial matter, the Awad panel reaffirmed the propriety of using conditional probability analysis, previously relied upon by the D. Circuit in Al-Adahi , to assess petitioner's evidentiary challenges; accordingly, it would not "weigh each piece of evidence in isolation, but [would] consider all of the evidence taken as a whole.
The panel noted past jurisprudence recognizing that "hearsay evidence is admissible in this type of habeas proceeding if the hearsay is reliable," and concluded that the proffered evidence was sufficiently reliable to have been considered by the lower court. The court then turned to petitioner's legal challenges. The panel rejected petitioner's argument that the government was required to justify its claims that he was lawfully detainable through clear and convincing evidence, and found that the less rigorous "preponderance of evidence" standard that had been relied upon by the district court was constitutionally permissible.
The circuit panel also dismissed petitioner's argument that his habeas petition could only be denied if a specific finding of fact was made that petitioner would pose a threat to the United States and its allies if released. The panel characterized the circuit court's prior decision in Al-Bihani as foreclosing this argument, and it went on to state that. Whether a detainee would pose a threat to U. Finally, the panel rejected petitioner's argument that, in order for the government to justify his detention under the AUMF, it would have to demonstrate that he was part of Al Qaeda's "command structure.
It also suggested other situations where the government would not need to prove that a detainee was subject to Al Qaeda's "command structure" in order to justify its conclusion that he was "part of" Al Qaeda, such as when a person was captured in Afghanistan as part of a group that was shooting at U.
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In June , a three-judge panel of the D. Circuit upheld a district court's denial of a habeas petition brought on behalf of a person who had been detained at Guantanamo since due to his allegedly being part of Al Qaeda and Taliban forces. The petitioner challenged the procedures used by the district court when admitting evidence, and also the sufficiency of the evidence upon which its judgment on the merits was based. The circuit panel rejected these challenges as being foreclosed by controlling legal precedent. Specifically, the panel rejected the petitioner's argument that the government was required to support its factual claims in support of the legality of the petitioner's detention through "clear and convincing evidence.
The panel further rejected petitioner's argument that the admission of hearsay was statutorily restricted by the Federal Rules of Evidence and federal habeas statute. The court found this argument unpersuasive, citing both to the Supreme Court's ruling in Hamdi and the appellate court's prior jurisprudence as recognizing that district courts may admit reliable hearsay evidence when considering a habeas petition by an individual detained under the AUMF.
In this case, the court agreed with the lower court that the hearsay evidence demonstrated sufficient indicia of reliability to be accorded weight:. For example, in considering interrogation reports of a third party concerning al Qaeda and Taliban travel routes into Afghanistan, the [district] court noted that this hearsay was corroborated by "multiple other examples of individuals who used this route to travel to Afghanistan for the purpose of jihad.
The court approved this analysis of hearsay and declined to find an abuse of discretion on the part of the district court. The panel also rejected the petitioner's challenges to the individual pieces of evidence proffered by the government in support of his detention. The Al-Odah ruling has been relied upon by the D.
Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
Circuit in other cases, including in one case in which a petition for certiorari was denied by the Supreme Court. This case involved the review of a district court denial of habeas relief to an Algerian citizen who had been arrested by Bosnian authorities in and was subsequently transferred to U. The government claimed that although the petitioner had not directly taken part in combat activities against the United States, he had intended to travel to Afghanistan to fight U. The executive branch initially argued that it had legal authority to hold the detainee, pursuant to the authority vested by the AUMF and the President's "inherent authority" as Commander-in-Chief, on account of the detainee's alleged membership in and support for Al Qaeda.
In , a federal district court judge denied the detainee's habeas petition. On appeal, the Executive eschewed reliance on certain evidence that it earlier relied upon to demonstrate that petitioner acted as a travel facilitator for Al Qaeda, and also modified its argument in support of petitioner's detention—abandoning its argument that the petitioner was subject to detention on account of providing support to Al Qaeda, and instead arguing that he was subject to detention on account of being "part of" the organization.
The government also relied solely on the authority granted by the AUMF to justify its detention authority, rather than any independent authority deriving from the Commander-in-Chief Clause. The reviewing circuit panel reversed and remanded the case back to the district court, finding that evidence relied upon by the lower court to conclude that the petitioner had supported Al Qaeda was insufficient to show that he was "part of" the organization. Portions of the appellate panel's opinion discussing the sufficiency and reliability of the evidence proffered by the government were largely redacted.
However, the published opinion provided further clarification regarding the D. Circuit's view of the detention authority conferred by the AUMF. The Bensayah panel recognized that the D. Circuit had previously made clear that "the AUMF authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda. This case involved review of a district court order granting habeas relief to a Guantanamo detainee captured in in Mauritania. Although the petitioner had not fought against the United States, the government alleged that he was lawfully detained on the grounds that he was "part of" Al Qaeda.
In habeas proceedings before the lower court, the government presented evidence that petitioner swore an oath of loyalty to Al Qaeda in and provided support to the organization at various points thereafter, including by recruiting members, hosting organization leaders, and providing the organization with financial support. For his part, the petitioner claimed that he severed ties with Al Qaeda in the early s. The district court ruled that the government failed to satisfy its evidentiary burden in proving that the petitioner was "part of" Al Qaeda at the time of capture, and ordered the detainee to be released.
In doing so, it rejected the government's argument that once the petitioner swore an oath of allegiance to Al Qaeda, he bore the burden of demonstrating that he had later withdrawn from the organization. On appeal, a three-judge panel vacated the lower court's decision, finding that intervening case law—namely, the circuit court's opinions in the Al-Adahi , Awad , and Bensayah cases discussed above—cast doubt on the lower court's approach to determining whether petitioner was "part of" Al Qaeda.
In particular, the Salahi panel found that the lower court had improperly required the government to prove that the petitioner had received and executed orders from Al Qaeda in order to demonstrate his membership in the organization. Subsequent circuit jurisprudence established that membership could be demonstrated not only from evidence that a person was part of Al Qaeda's "command structure," but also from activities which revealed a person to be functionally part of the organization.
The panel recognized, however, that in cases like the one involving petitioner, who had not engaged in combat activities against the United States, "the government's failure to prove that an individual was acting under orders from al-Qaida may be relevant to the question of whether the individual was 'part of' the organization when captured. Although the government requested that the Salahi panel direct the district court to deny the habeas petition, it declined to do so, finding that it was appropriate to remand the case so the lower court could conduct further proceedings consistent with circuit jurisprudence that developed after its initial ruling.
The panel found that because the lower court lacked guidance from subsequent circuit jurisprudence, it had primarily looked for evidence as to whether petitioner participated in Al Qaeda's command structure, but "did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in fact 'part of' al-Qaida when captured. In remanding the case to the lower court for further factual findings, the Salahi panel reiterated the admonition made by the circuit court in Al-Adahi that courts considering habeas petitions by Guantanamo detainees must consider the assorted evidence relating to the government's claims collectively rather than in isolation.
While the panel stated that the lower court appeared to have generally followed this approach, it suggested that its consideration of certain evidence "may have been unduly atomized. The panel also suggested that examining the petitioner's oath to Al Qaeda in isolation from his subsequent "sporadic support" may have resulted in the lower court failing to consider the possibility that this support demonstrated the petitioner's continued adherence to his oath of loyalty.
In reaching its ruling, the appellate court did not squarely address the government's argument that the petitioner's oath to Al Qaeda in the early s established an evidentiary burden upon him to demonstrate that he had subsequently withdrawn from the organization. The appellate court also declined to consider the government's argument that the district court had accorded insufficient weight to certain inculpatory statements that were made by petitioner in interrogations subsequent to a period of time when he had been, by the government's admission, subject to mistreatment, because the panel viewed this issue to be irrelevant to the legal questions addressed by its opinion conditional probability analysis.
In Uthman , a three-judge circuit panel reversed and remanded a district court decision that had granted habeas relief to a Yemeni national who had been captured in Afghanistan and detained by U. In prior cases, including the Bensayah and Salahi decisions discussed supra , the D. Circuit had recognized that the determination of whether a person was "part of" Al Qaeda was based on a functional, case-by-case assessment which focused on the individual's actions in relation to the organization.
The Uthman decision provided further clarification as to the kind of circumstantial evidence that could potentially provide sufficient grounds to support the detention of a person under the AUMF. The government made several claims regarding Uthman's activities in relation to Al Qaeda—including that he attended an Al Qaeda training camp, fought against the Northern Alliance in Afghanistan, and served as a bodyguard to Osama Bin Laden—which were contested.
Circuit panel found that the following facts, which were either found by the district court or which were uncontested by Uthman, were sufficient to demonstrate that Uthman was "more likely than not" part of Al Qaeda and therefore subject to detention: In Al-Madhwani , a three-judge appellate panel reviewed and affirmed a lower court dismissal of a habeas petition by a Guantanamo detainee.
Madhwani argued that the government provided insufficient evidence to demonstrate that he was subject to detention under the AUMF, and also alleged that the district court had improperly considered evidence outside the record and had committed procedural errors. The petitioner also claimed that he had been tortured by U.
In upholding the district court's denial of habeas, the circuit panel found it unnecessary to reach Madhwani's challenge that certain evidence had been tainted by undue coercion, as there was sufficient evidence untainted by these claims to support the district court's decision. The panel noted that the district court had considered exhibits and held a four-day merits hearing during which petitioner himself testified for over one day, and discounted "a substantial portion" of the government's evidence based on a finding that it was tainted by mistreatment suffered by petitioner prior to his transfer to Guantanamo.
The panel found the evidence considered by the lower court, including incriminating testimony by Madhwani in testimony, provided sufficient grounds to support the government's determination that he was "part of" Al Qaeda.
This evidence included admissions by Madhwani of his stay at an Al Qaeda-affiliated guest house and military training camp; his admission to carrying a rifle at the behest of camp superiors, his "suspicious" travel after departing the camp with recruits and "implausible" explanation for his travel; and the circumstances of his final capture in the company of at least one known Al Qaeda operative.
The panel also rejected several other legal and evidentiary arguments made by Madhwani, including certain arguments that had been previously rejected by the D. Circuit, including his claim that hearsay evidence could only be admitted in wartime detention cases if it fell within an exception recognized under the Federal Rules of Evidence. In Almerfedi , a three-judge panel of the D.
Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings - Digital Library
Circuit considered the government's appeal of a district court ruling granting habeas relief to a Guantanamo detainee whom the government claimed had acted as a facilitator for Al Qaeda. The government based its claim primarily upon admissions made by habeas petitioner Almerfedi himself, as well as statements made by another Guantanamo detainee. The district court concluded, however, that Almerfedi's statements did not demonstrate by a preponderance of the evidence that Almerfedi was "part of" Al Qaeda. It also declined to consider the testimony of the fellow Guantanamo detainee, concluding that it was unreliable.
The circuit panel reversed and remanded with instructions to the lower court to deny Almerfedi's habeas petition. The circuit court's ruling did not clearly pronounce any new legal standards governing consideration of detainees' habeas claims though the majority opinion reiterated the suggestion made in Al-Adahi that the government might be able to support the detention of a person using a lower standard than one based on the preponderance of evidence.
Circuit, and might signify "the minimum amount of evidence" necessary to demonstrate under a preponderance of evidence standard that an individual was lawfully detained. The government's contention that Almerfedi served as a facilitator for Al Qaeda was based on several factors. By Almerfedi's own admission, he had travelled from Yemen to Pakistan in , where he stayed for more than two months at the headquarters of Jama'at Tablighi, an Islamic missionary organization designated by U. The government further claimed, based on statements Almerfedi allegedly made to another Guantanamo detainee named al-Jadani, that while Almerfedi was in Iran he stayed at an Al Qaeda guest house in Tehran.
Al-Jadani also claimed that other, unnamed Guantanamo detainees had informed him that a "Hussain al-Aden" acted as an Al Qaeda facilitator at the Tehran guesthouse, and the government believed that "Hussain al-Adeni was the same person as Almerfedi because the nisha 'al-Adeni' means 'from Aden,' which is [the Yemeni city] where Almerfedi is from. For his part, Almerfedi denied that he had ever stayed at an Al Qaeda guesthouse or served as a facilitator, and noted that the dates when al-Jadani claimed he stayed at the guesthouse were obviously incorrect, because it was undisputed that Almerfedi had been arrested by Iranian authorities at least a year earlier.
Almerfedi alleged that he had left Yemen in order to seek a better life in Europe. He claimed to have travelled to Pakistan because it would be easier to obtain a visa there, and that he stayed with Jama'at Tablighi in the hope that he could take advantage of the travel discounts they offered members even though he denied ever being a member of the organization. He further alleged that his subsequent travel to and stay in Iran were part of a failed attempt to be smuggled into Europe.
Examining the record, the circuit court concluded that "the government's evidence, combined with Almerfedi's incredible explanations" provided sufficient grounds to detain Almerfedi even without consideration of al-Jadani's statements. The court noted that Almerfedi's stay at the headquarters of Jama'at Tablighi was "probative, by itself it presumably would not be sufficient to carry the government's burden because there are surely some persons associated with Jama'at Tablighi who are not affiliated with al-Qaeda.
Circuit had held in Al-Adahi. While finding that the admission of al-Jadani's statements was unnecessary for the government to satisfy the evidentiary burden justifying Almerfedi's detention, two panel members nonetheless concluded that the lower court clearly erred in ruling these statements as unreliable "jail house gossip. The majority of the circuit panel believed, however, that al-Jadani's "timing confusions were inconsequential," because the correct date of Almerfedi's capture had been given in some reports of al-Jadani's interrogations by U.
The majority of the panel also believed that the district court erred when it failed to assess al-Jadani's recounting of conversations with unnamed detainees that implicated Almerfedi. The panel majority viewed it as "quite understandable that al-Jadani would be reluctant" to identify these detainees to U. Moreover, the panel majority found it significant that al-Jadani knew specific details regarding the capture of a "Hussain al-Aden" by Iranian authorities and his subsequent transfer first to Afghan and then to U. The panel majority characterized the circumstances as matching "Almerfedi's unique experiences and therefore mak[ing] clear that Hussain Almerfedi and Hussain al-Adeni are the same man," buttressing the credibility of al-Jadani and that of the unnamed detainees who purportedly identified Almerfedi as an Al Qaeda facilitator.
Circuit Judge Judith W. Rogers concurred with the panel majority in its ruling that the government had satisfied the evidentiary burden needed to support Almerfedi's detention. However, Judge Rogers disagreed with the majority's analysis of the recorded statements of al-Jadani. The district court's determination that al-Jadani's statements were unreliable was a factual one that could only be reversed for clear error, and an examination of the record evidenced did "not lead to a 'firm conviction' that the district court's analysis of al-Jadani's statements was mistaken, much less implausible.
In this case, a circuit panel found that although the corroboration of hearsay statements has proved useful to establish their reliability, corroboration of statements made by the petitioner himself during interrogations is not necessary to find that he is lawfully detained. The district court had sustained Al Alwi's detention based on admissions he made during interrogation that established he had traveled to Afghanistan to join the fight against the Northern Alliance, had stayed in at least three guesthouses associated with enemy forces, received military training and participated in hostilities against the Northern Alliance, and was part of a unit that was bombed by U.
The appellate court expressed skepticism that such a rule still exists in the criminal context, but regarded it as irrelevant to habeas proceedings, 41 where other indicia of reliability could satisfy the requirement to assess the probative value of such statements. In this case, the interrogation reports were found to be sufficiently reliable because Al Alwi's statements were consistent and he did not contend that he gave false answers during any specific session due to the coercive interrogation methods he alleged were used.
Moreover, the government did submit evidence other than the petitioner's statements to demonstrate the connection between the admissions and inferences that could be drawn from them i. The appellate court declined to review the petitioner's argument that his detention was no longer lawful because the "associated force" of which he was allegedly a member is no longer engaged in hostilities, stating that he had failed to raise the argument before the lower court and that there was sufficient evidence to establish he was a part of the Taliban or Al Qaeda.
Although the district court had not squarely addressed whether Al Alwi was a part of any group of combatants, the appellate court found that enough facts had been established for it to make that determination on review, without remanding the case for further finding of fact. Finally, the circuit panel rejected the petitioner's contention that the district court's denial of his unopposed request for a day continuance amounted to an abuse of discretion.
He had asked for extra time because he had been unable to meet with his attorneys due to his having begun a hunger strike, but the court denied the request because Al Alwi was himself responsible for the delay. While the appellate court agreed that the denial of Al Alwi's request was difficult to understand in light of the fact that the district court had granted the government a similar continuance without objection, it stated that the petitioner must be able to demonstrate actual prejudice from the denial, which he had failed to do.
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The district judge had permitted his attorneys to submit an amended response, and at any rate, according to the panel, it could not be demonstrated that 30 days would have made an appreciable difference given the amount of time his counsel had been working with him through the CSRT and habeas proceedings. In this case a three-judge circuit panel reviewed a district court ruling granting the habeas petition of a Guantanamo detainee whom the government claimed was subject to detention under the AUMF.
The district court had found that the government failed to satisfy its evidentiary burden to demonstrate its allegation that Latif, a Yemeni national who had travelled to Afghanistan and was subsequently captured in Pakistan, had fought with the Taliban and was subject to detention. In a decision, the panel vacated the district court's ruling and remanded the case for further proceedings. The opinion was later reissued with fewer redactions. The panel majority found that the district court erred by not affording a "presumption of regularity" to the intelligence documents proffered by the government, and that Latif had not presented evidence to satisfactorily rebut the presumption that the intelligence documents accurately recorded the statements made therein.
The controlling opinion in Latif , written by Judge Brown, described the presumption of regularity as applicable to "the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. The confusion stems from the fact that intelligence reports involve two distinct actors—the non-government source and the government official who summarizes or transcribes the source's statement.
The presumption of regularity pertains only to the second: There are many conceivable reasons why a government document might accurately record a statement that is itself incredible. A source may be shown to have lied, for example, or he may prove his statement was coerced. The presumption of regularity—to the extent it is not rebutted—requires a court to treat the Government's record as accurate; it does not compel a determination that the record establishes what it is offered to prove.
The majority characterized the application of a presumption of regularity to intelligence documents as being supported by separation of powers principles; because "courts have no special expertise in evaluating the nature and reliability of the executive branch's wartime record It also discussed prior D. Circuit rulings which it characterized as being consistent with or lending support to the panel's holding.
Reviewing the evidence before the district court, the panel majority found that the intelligence report proffered by the government, if reliable, provided sufficient evidence to demonstrate the lawfulness of Latif's detention. Because the majority held that this report was entitled to a presumption of regularity, and because Latif "challenge[d] only the reliability of the Report," the majority found that it could only uphold the district court's grant of habeas if Latif was able to rebut the government's evidence "with more convincing evidence of his own.
The panel remanded the case back to the district court for further consideration of the evidence. Judge Henderson wrote a separate concurrence to the panel decision, agreeing with the controlling opinion's analysis but arguing that remand was unnecessary and that the panel should have simply reversed the lower court's grant of habeas. Writing in dissent, Judge Tatel argued that the district court's factual findings were subject to a deferential clear error standard of review, and that employing this standard would have resulted in affirming the lower court's grant of habeas.
He also disputed the majority's holding that a presumption of regularity should apply to government intelligence documents in habeas cases. He characterized the presumption as typically being applied to those government documents which are "familiar, transparent, generally understood as reliable, or accessible. The Supreme Court denied certiorari to review the Latif decision. Mukhtar Al Warafi denied that he was part of the Taliban, and argued that even if he were a part of the organization, he was not lawfully subject to detention because he served "permanently and exclusively as 'medical personnel'" within the meaning of the Geneva Conventions and their U.
Army implementing regulations, AR Although Congress included a provision in Section 5 of the Military Commissions Act of 53 stating that detainees may not invoke the Geneva Conventions in a habeas proceeding, the three-judge panel found the detainee may nevertheless invoke the Army Regulation implementing them.
However, the district court found the detainee had failed to prove his status as a medic, inasmuch as he lacked the identification card and armlet bearing the distinctive emblem required elsewhere under the First Geneva Convention for medical personnel. Al Warafi's detention was affirmed. The petitioner in this case was a teenager when he was captured in Pakistan after spending time with Taliban soldiers near the front in Afghanistan as well as in a series of mosques run by an organization associated with Al Qaeda. He argues that he never took part in hostilities and was never part of the command structure of the Taliban or Al Qaeda.
The district court found that he was nevertheless part of the Taliban or Al Qaeda. Circuit affirmed, with two of the judges invoking at one point the "walks like a duck test" to approve the lower court's reasoning. Senior Circuit Judge Edwards wrote a concurring opinion conceding that the evidence was sufficient under circuit precedent to support detention. He objected, however, that the evidence adduced did not in his view meet the preponderance of the evidence standard the court has said it employs.
He would have required the government to provide positive evidence that Hussain fit within the AUMF standard at the time of his capture. The Supreme Court declined to review the decision. Justice Breyer concurred in the denial of certiorari, but indicated his vote might have been different had the petitioner asked for review on the claim that he was not an "individual who Obama , 58 has responded to the invitation to bring this question before the Supreme Court.
Circuit has also considered a number of cases involving issues related to the transfer or release of Guantanamo detainees. Some of these cases concern the remedy available to persons whom a reviewing court has determined to be unlawfully held, but who cannot be resettled or repatriated to a foreign country in the near future due to legal or practical obstacles.
Circuit has also indicated that it is highly unlikely that a detainee may challenge his designation as an enemy combatant after being released from U. In October , a federal district court ordered the release into the United States of several Guantanamo detainees who were no longer considered enemy combatants but who could not be returned to their home country China because of the likelihood they would be subjected to torture there, finding that the political branches' plenary authority in the immigration context did not contravene the petitioners' entitlement to an effective remedy to their unauthorized detention.
Circuit panel stayed the district court's order pending appellate review, 61 and subsequently reversed the district court's decision in the case of Kiyemba v. Obama " Kiyemba I " , decided in February The majority held that although the constitutional writ of habeas enables Guantanamo detainees to challenge the legality of their detention, habeas courts lack authority absent the enactment of an authorizing statute to compel the transfer of a non-citizen detainee into the United States, even if that detainee is found to be unlawfully held and the government has been unable to effectuate his release to a foreign county.
The Kiyemba I panel's decision was primarily based on long-standing jurisprudence in the immigration context which recognizes that the political branches have plenary authority over whether arriving aliens may enter the United States. The majority of the panel also found that Guantanamo detainees were not protected by the Due Process Clause of the Constitution, as they are non-citizens held outside the U. As discussed supra , the Supreme Court granted certiorari to review the Kiyemba ruling, and subsequently vacated the appellate court's opinion and remanded the case in light of the fact that several countries had thereafter agreed to resettle the petitioners.
In May , the D. Circuit panel reinstated its earlier opinion, as modified to take into account subsequent congressional enactments limiting the use of funds to release any Guantanamo detainee into the United States the panel's reinstatement is commonly referred to as " Kiyemba III ," to distinguish it from the Circuit panel's initial ruling and an intervening case also entitled Kiyemba v. In another case entitled Kiyemba v. Obama commonly referred to as " Kiyemba II " , a D.
Circuit panel considered habeas petitions by detainees who were no longer considered enemy combatants, and who sought to prevent their transfer to any country where they would likely face further detention or torture. The Kiyemba II panel rejected the government's argument that the MCA stripped the court of jurisdiction to hear claims related to the petitioners' proposed transfer. The panel interpreted Boumediene as invalidating the MCA's court-stripping provisions with respect "to all habeas claims brought by Guantanamo detainees, not simply with respect to so-called 'core' habeas claims" relating to the legality of the petitioners' detention.
However, the panel held that an executive branch determination that a detainee will not be tortured if transferred to a particular country is binding on the court, and a habeas court may not second-guess this assessment. The circuit panel also reversed a district court ruling that required the government to provide 30 days' notice to detainees' counsel before any proposed transfer.
As a result of this ruling, the detainees' ability to challenge their proposed transfer from Guantanamo may be quite limited. On March 22, , the Supreme Court denied a petition for writ of certiorari to review the appellate court's ruling. The Kiyemba II decision has been relied upon by the D. Circuit in subsequent rulings concerning detainees' right to challenge the Executive's determination that they would not face torture if transferred to a particular country and receive advance notice of their proposed transfer.
This case involved two former Guantanamo detainees who sought to challenge their designation as "enemy combatants" by the U. Four Justices would have found jurisdiction based on the "exceptional circumstances" of the case and affirmed the holding below that detention is prohibited under the Non-Detention Act, 18 U. Padilla filed a new petition in the Fourth Circuit, and the appellate court considered the legality of his detention in Padilla v.
Haft , discussed infra. Bush , U. Bush , the Court held in a ruling that the federal habeas corpus statute, 28 U. Naval Station in Guantanamo Bay, Cuba. Having found that Guantanamo detainees were entitled by statute to seek habeas review of their detention, the Court did not reach the issue of whether the constitutional writ of habeas also extended to noncitizens held at Guantanamo.
Rumsfeld , U. Rumsfeld , the Supreme Court reviewed the validity of military tribunals established pursuant to presidential order to try suspected terrorists for violations of the law of war. The petitioner Hamdan was charged with conspiracy to commit a violation of the law of war. Prior to reaching the merits of the case, the Hamdan Court first had to determine whether the DTA stripped it of jurisdiction to review habeas corpus challenges by or on behalf of Guantanamo detainees whose petitions had already been filed prior to enactment of the DTA.
In a opinion, the Court held that the DTA did not apply to such petitions.
The Court held that, at a minimum, Common Article 3 of the Geneva Conventions applies to persons captured in the conflict with Al Qaeda, according to them a minimum baseline of protections, including protection from the "passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
In particular, the Court noted that the commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him deviated substantially from court-martial procedures. A four-justice plurality of the Court also recognized that for an act to be triable under the common law of war, the precedent for it being treated as an offense must be "plain and unambiguous. In the aftermath of the Hamdan decision, Congress enacted the Military Commissions Act of MCA , which, inter alia , expressly eliminated court jurisdiction over all pending and future causes of action other than the limited review permitted under the DTA.
In the case of Boumediene v. Bush , the Court ruled in a opinion that the constitutional privilege of habeas extends to Guantanamo detainees. The majority listed a number of potential constitutional infirmities in the DTA review process, including the absence of provisions 1 empowering a reviewing court to order the release of a detainee found to be unlawfully held; 2 permitting petitioners to challenge the President's authority to detain them indefinitely; 3 enabling a presiding court to review or correct administrative findings of fact which formed the legal basis for an individual's detention; and 4 permitting the detainee to present exculpatory evidence discovered after the conclusion of administrative proceedings.
Although the Boumediene Court held that the constitutional writ of habeas extends to noncitizens held at Guantanamo, it did not opine as to the scope of habeas review available to detainees, the remedy available for those persons found to be unlawfully held by the United States, and the extent to which other constitutional provisions extend to noncitizens held at Guantanamo and elsewhere. Bismullah , S. Prior to the Supreme Court's decision in Boumediene , the D. In , the government petitioned the Supreme Court to review two rulings by the D.
Circuit regarding the scope of judicial review of CSRT determinations. Supreme Court granted certiorari and vacated the appellate court's decisions, remanding for reconsideration in light of the Supreme Court's decision in Boumediene. Upon remand, the D. Circuit reinstated without explanation its decisions, presumably because it did not find the Boumediene ruling to conflict with its decisions in these cases. In December , the Supreme Court granted certiorari to review an en banc ruling by the Fourth Circuit Court of Appeals regarding petitioner al-Marri, a lawful alien resident who had been arrested in the United States and thereafter detained as an enemy combatant.
At the time, the Court's decision to review the Fourth Circuit's ruling was thought to have potentially set the stage for a definitive pronouncement regarding the President's authority to militarily detain terrorist suspects apprehended away from the Afghan battlefield. However, before the Court could consider the merits of the case, the government requested that the Court authorize al-Marri's release from military custody and transfer to civilian authorities to face criminal charges.
The Court granted the government's request, vacated the appellate court's earlier judgment, and transferred the case back to the lower court with orders to dismiss it as moot. See below for discussion of appellate court ruling. In October , the Supreme Court agreed to review a ruling by a three-judge panel of the D.
Circuit Court of Appeals in the case of Kiyemba v. Obama , discussed infra. The Kiyemba case involved several Guantanamo detainees who, despite no longer being considered enemy combatants and been cleared for release, had not been transferred from Guantanamo on account of the government being unable to effectuate their release to a foreign country. The Kiyemba petitioners sought reversal of a D. Circuit ruling finding that a federal habeas court lacked the authority to compel the Executive to release the detainees into the United States. Following the Supreme Court's grant of certiorari, however, several Kiyemba petitioners were resettled in foreign countries, and the United States was able to find countries willing to settle the remaining petitioners, although five petitioners rejected these countries' offers for resettlement.
On March 1, , the Supreme Court vacated the appellate court's opinion and remanded the case in light of these developments. Because the Supreme Court had granted certiorari on the understanding that no remedy was available for the petitioners other than release into the United States, it returned the case to the D. Circuit to review the ramifications of the new circumstances. Litigation in Kiyemba remains ongoing. The following section discusses major rulings made at the appellate court level regarding persons designated as enemy combatants that involve matters of continuing relevance to U.
It does not discuss those rulings that were subsequently overruled by the Supreme Court on the merits. Hanft' , F. The district court granted Padilla's motion for summary judgment and ordered the government to release him from military detention, while suggesting Padilla could be kept in civilian custody if charged with a crime or determined to be a material witness. The government argued that Padilla's detention is covered under the Hamdi decision's interpretation of the AUMF as an act of Congress authorizing his detention because he is alleged to have attended an Al Qaeda training camp in Afghanistan before traveling to Pakistan and then to the United States.
Accordingly, the court found Padilla's detention barred by 18 U. The court also disagreed that the President has inherent authority as Commander-in-Chief of the Armed Forces to determine wartime measures. Pucciarelli , F. In al-Marri, the Fourth Circuit sitting en banc considered whether the AUMF and the law of war permit the detention of a resident alien alleged to have engaged in activities within the United States in support of Al Qaeda, but who had not been part of the conflict in Afghanistan. Four of the nine judges would have held that even if the allegations were true, al-Marri did not fit within the legal category of "enemy combatant" within the meaning of Hamdi , and that the government could continue to hold him only if it charged him with a crime, commenced deportation proceedings, or obtained a material witness warrant in connection with grand jury proceedings as a majority of the original three-judge panel had found.
The case was remanded to the district court for further consideration of the evidence to determine whether the government had established that al-Marri was a sleeper agent. The en banc panel also considered the evidentiary burden that the government would be required to fulfill to detain al-Marri as an enemy combatant. In his controlling opinion, Judge Traxler wrote that the lower court had erred in applying the relaxed evidentiary standards of Hamdi to persons captured in the United States.
While the Hamdi plurality suggested that hearsay evidence might be sufficient to support detention of a person apprehended in combat zone, Judge Traxler wrote that Hamdi does not establish a "cookie-cutter procedure appropriate for every alleged enemy-combatant, regardless of the circumstances of the alleged combatant's seizure or the actual burdens the government might face in defending the habeas petition in the normal way. After the Supreme Court granted review, the government brought charges against al-Marri in federal court and asked the Court to dismiss the case as moot and to vacate the decision below, which the Court agreed to do, leaving the applicability of the AUMF to persons captured in the United States uncertain.
Al-Marri pleaded guilty to conspiring to provide material support to terrorists and was sentenced to eight and a half years in prison. Obama , F. In October , a federal district court ordered the release into the United States of several Guantanamo detainees who were no longer considered enemy combatants but who could not be returned to their home country China because of the likelihood they would be subjected to torture there, finding that the political branches' plenary authority in the immigration context did not contravene the petitioners' entitlement to an effective remedy to their unauthorized detention.
Circuit panel stayed the district court's order pending appellate review, [27] and subsequently reversed the district court's decision in the case of Kiyemba v. Obama , decided in February The majority held that although the constitutional writ of habeas enables Guantanamo detainees to challenge the legality of their detention, habeas courts lack authority absent the enactment of an authorizing statute to compel the transfer of a non-citizen detainee into the United States, even if that detainee is found to be unlawfully held and the government has been unable to effectuate his release to a foreign county.
The Kiyemba panel's decision was primarily based on long-standing jurisprudence in the immigration context which recognizes that the political branches have plenary authority over whether arriving aliens may enter the United States. The majority of the panel also found that Guantanamo detainees were not protected by the Due Process Clause of the Constitution, as they are non-citizens held outside the U. As discussed supra , the Supreme Court granted certiorari to review the Kiyemba ruling, but thereafter vacated the appellate court's opinion and remanded the case in light of the fact that several countries have agreed to resettle the petitioners.
Circuit must now review the ramifications of these new circumstances.