New review for Bismullah
on May 9, 2008 at 11:56 am
The Justice Department notified the Supreme Court on Thursday that the Pentagon plans to conduct a new review of the status of an Afghan national held at Guantanamo Bay, whose lawyers have insisted for months that he was detained by mistake. The individual, Haji Bismullah, is one of eight detainees whose challenges to their captivity led the D.C. Circuit Court to issue a major ruling that expands civilian court review of military detention decisions. The government has challenged that ruling in a case now awaiting action by the Justices — Gates v. Bismullah (07-1054).
The Court apparently is waiting to act on that appeal until it decides other cases, already heard, on the legal rights of detainees (Boumediene v. Bush, 06-1195, and Al Odah v. U.S., 06-1196) — cases likely to be decided in the next several weeks.
The new military review of Haji Bismullah’s status will not wipe out the government’s appeal in that case, since seven other detainees are still involved in it because their military status reviews are final, U.S. Solicitor General Paul D. Clement told the Court in a letter to the Clerk of Court. (The letter can be found here.)
Meanwhile, Justice Department lawyers notified the D.C. Circuit, also on Thursday, of the Pentagon’s plan to convene a new “Combatant Status Review Tribunal” for Bismullah, based on unspecified new evidence. (The government motion to send his Circuit Court case back to the Pentagon can be downloaded here.)
In the Circuit Court filing, federal lawyers said that Pentagon officials had decided on May 1 to put unspecified “new evidence” before a CSRT for a new review of whether to continue to designate him as an “enemy combatant” — the basis for his continued detention. Under Pentagon rules, a new CSRT cannot be summoned unless the new evidence would have changed the outcome of the combatant designation. The filing did not say when a new CSRT would review Bismullah’s case, but a statement included from a Pentagon official said the new proceeding would be done “expeditiously.”
Bismullah’s lawyers have said in various court filings that he was detained in February 2003 after he went to a U.S. military base in Afghanistan to vouch for a detained Afghan official who was released later. Bismullah was held, his attorneys have said, based on a false accusation made by members of a rival clan. His attorneys have said tht Afghan officials have told the U.S. military that he was mistakenly detained. Even so, he was sent to Guantanamo, and remains there.
The government filing did not say whether the “new evidence” was something submitted by Bismullah’s lawyers, or from some other source.
Separately, in another case awaiting action by the Supreme Court, involving a Syrian national, Abdul Rahim Abdul Razak Al Ginco, the Justice Department on Thursday notified the D.C. Circuit that a new CSRT review of his status has been completed and he has been newly designated as an “enemy combatant.” The “do-over” review was based upon new evidence submitted by Al Ginco’s counsel.
Al Ginco has pending before the Justices an original petition for an order to require the D.C. Circuit to act on a plea that he be released because there is no evidence supporting his “enemy combatant” designation. He has been seeking emergency relief since Oct. 31, after the Pentagon summoned a new CSRT review but did not move forward with the actual proceeding.
In December, the Circuit Court told the Justice Department to begin filing status reports every 14 days on the progress of the CSRT review. A series of such reports showed that the review had not yet begun. Then, the government told the Circuit Court on Feb. 14 that the CSRT hearing had been held that day. Later reports indicated that the CSRT decision had not yet been finalized.
So, on April 21, Al Ginco’s counsel asked for help from the Supreme Court. (The petition for writ of mandamus, In re Al Ginco, is pending as 07-10553. At the Justices’ private Conference on Thursday, a motion to expedite that petition was considered. An order may come as early as next Monday.)
In court papers, Al Ginco’s attorneys have contended that he was a political prisoner of the Taliban, and was tortured by that radical terrorist group for almost two years. The counsel asserted that, when American bombing liberated him from the Taliban, he offered to share information about human rights violations, but, instead, was taken captive, and has now spent more than six years at Guantanamo.
On Thursday, in the government’s latest status report to the Circuit Court, it related that “the final CSRT decision, which found petitioner to be an enemy combatant, was signed” on that day. (The status report can be found here.)
