Federal Judiciary

Victory for detainee in first case

By Akin Gump Supreme Court Practice Group

In the first civilian court ruling giving a Guantanamo Bay detainee a chance to win his release, the D.C. Circuit Court ruled on Friday that Huzaifa Parhat was wrongly designated an enemy combatant by a military panel.  Because the Court’s opinion contains classified material, the Circuit Court on Monday released only a one-page notice of its decision. It can be read here. The Court said it would release later a redacted version of its ruling, now being prepared.

Parhat, the Circuit Court said, must either be released, transferred out of Guantanamo, or given a speedy new Pentagon review of the question of whether he is an enemy. But, it added, relying on the Supreme Court’s ruling June 12 on detainees’ rights, Parhat’s counsel may pursue immediate release by filing a habeas challenge in District Court.  There is little doubt his lawyers would go for the habeas option, since the Pentagon would very likely prefer to try again with a review by one of its Combatant Status Review Tribunals.

The Court’s opinion, when released, might be a broad discussion of presidential power to order detention of war-on-terrorism captives, or it might be a narrow ruling solely on flaws it found in the evidence the Pentagon assembled for Parhat’s CSRT review.   The notice released Monday said only that the three-judge panel had “held invalid a decision of a Combatant Status Review Tribunal  that petitioner Huzaifa Parhat is an enemy combatant.”

Parhat was a member of a persecuted Chinese Muslim minority, the Uighurs. His lawyers have insisted that he is not a member of the terrorist groups Al Qaida or of the Taliban. He was captured by Pakistani bounty hunters, and turned over to the U.S. military, his lawyers have said. The Pentagon has contended that he was trained by an organization named the East Turkistan Islamic Movement, and argues that this group was linked with the Al Qaida terrorist network. His lawyers have disputed that claim, saying there is no evidence the ETIM is a terrorist group or that Parhat ever joined it.

A key issue in his case, explored closely by the Circuit Court at a hearing April 4, is whether Parhat was involved in any kind of activity that would justify designating him an “enemy combatant” — the only status that justifies holding him prisoner at Guantanamo Bay or elsewhere.

Parhat’s case was the first detainee case to go forward in the D.C. Circuit Court under laws passed by Congress in 2005 and 2006 in an attempt to bypass traditional habeas review of detainees’ challenges to their captivity.  It did so based solely on the evidence the Pentagon had chosen to submit to a CSRT.

Since that case, the Circuit Court has ordered the Pentagon to supply a good deal more evidence to the Circuit Court as it reviewed detainees’ claims that their CSRT enemy designations were flawed. That order came in the Circuit Court’s ruling last July 20 in a case that is now know by its lead appeal, Bismullah v. Gates (Circuit docket 06-1197).

The Bismullah ruling deeply upset the government, claiming that it would interfere with military functioning and potentially exposes secret information.  The Justice Department sought to appeal that decision to the Supreme Court.

On Monday, among a series of orders on pending Guantanamo cases, the Supreme Court ordered the D.C. Circuit to revisit its Bismullah ruling in the wake of the Justices’ detainee rights ruling earlier this month (Boumediene v. Bush, Supreme Court docket 06-1195).  The Court already has put its Boumediene decision into effect, so the Circuit Court is expected to react promptly, perhaps to sort out the relationship between scores of other pending detainee appeals there, and the new chances for detainees to pursue relief by habeas petition.

The Supreme Court, also on Monday, followed up its Boumediene decision with these other orders in detainee cases:

** It refused, in two cases, to order direct legal relief, under the Justices’ own habeas authority, for detainees Abdul Hamid Salam Al-Ghizzawi, an Afghani (docket 06-6827), and Anvar Hassan, a member of the Uighur minority (docket 06-1194). The order in the two cases said that the plea was being denied “without prejudice,” so the detainees’ counsel are free to pursue habeas in U.S. District Court in Washington. 

** It told the Circuit Court to reconsider, in light of Boumediene, the cases of Saifullah Paracha, a native of Pakistan who has had permanent U.S. resident status before being captured abroad (docket 07-153), and Abu Abdul Rauf Zalita, a native of Libya (docket 07-416).

Full post as published by SCOTUSBLOG on June 23, 2008 (boomark / email).