Sunday, July 24, 2011
A three-judge panel of the D.C. Circuit ruled on Friday that former Guantanamo detainees' habeas claims are moot. The ruling means that the former detainees cannot challenge their continued designation as "enemy combatants" and are stuck with that label, and all its baggage, even though the government released them from Guantanamo and returned them to their home countries.
The case, Gul v. Obama, follows a ruling in the Federal District Court for D.C. last year that dismissed over 100 then-pending habeas claims of former Guantanamo detainees. Fifteen of those former detainees appealed to the D.C. Circuit; this case involves two. (The D.C. Circuit consolidated the two and held the other thirteen in abeyance pending this ruling.)
When the government released the detainees, it notified them that they were "approved to leave Guantanamo," but that this approval "does not equate to a determination that [they were not enemy combatants], nor is it a determination that [they do] not pose a threat to the United States."
The detainees claimed that their designation as "enemy combatants" means that their home countries imposed travel restrictions upon them, that they are prohibited from entering the U.S., that they are subject to the recapture and even killing under the laws of war, and that their reputations have been damaged.
The court said that these "collateral consequences" didn't satisfy justiciability requirements under Article III. It wrote that its ruling could not force a non-party, here a foreign government, to relax travel restrictions upon them. It ruled that the appellants didn't even say they'd like to visit the U.S., and that any court order forcing the government to allow them to visit would run up against the various federal statutes excluding them. It held that the appellants had no basis for believing they'd be targets for recapture or killing under the laws of war. And it wrote that stigma alone isn't enough to establish their petitions as not moot.
The ruling means that these detainees are stuck with the designation "enemy combatant," even after the U.S. government released them from Guantanamo. As they alleged, the designation is a significant burden and puts them at continued risk of recapture or even targeted killing. The ruling applies not just to the two appellants here, but also to the thirteen other former detainees with pending habeas petitions who appealed last year's district court ruling.
This isn't the first time that a court ruled that detention policies overlapped with the law in a way to leave detainees in limbo. Recall the case of the Uighur detainees--a group that everyone agreed was wrongly detained, but had no place to go other than Guantanamo.
And the appellants' worry about recapture or killing isn't so far-fetched. Recall the ordered targeted killing of Anwar al-Aulaqi.