Ex-detainees have no legal claim
on Jul 22, 2011 at 11:03 am
In a decision that affects the global legal status of more than 100 former detainees at Guantanamo Bay, Cuba, the D.C. Circuit Court ruled on Friday that they have no legal claim they can continue to pursue in U.S. courts to challenge the military’s designation of them as enemies of the U.S. — a label that may amount to identifying each of them as a terrorist. The three-judge panel rejected the ex-detainees’ argument that the finding that they are an “enemy combatant” limits their freedom to pursue their lives in foreign lands or in the world community. The injuries they claim, the court concluded, either cannot be remedied by a U.S. court, or are based too much on speculation.
The ruling was a narrow one: the Circuit Court did not rule on the Obama Administration’s more sweeping claim that the right to challenge the consequences that follow from a government’s former action toward an individual does not apply at all to those who are no longer in custody at Guantanamo — the military’s most visible site for holding individuals suspected of links to terrorism. Even assuming that the so-called “collateral consequences doctrine” applies to those who once were detainees, the panel found, the challengers before the court could not prove that they would suffer such consequences or, if they might, that a U.S. habeas court could provide a remedy.
Friday’s decision settled, at least if it is not overturned by the Supreme Court, a question that has hung over U.S. detention policy since the Bush Administration began releasing some of the more than 700 non-citizens who have been held at one time or another at Guantanamo Bay.  In more than 100 cases where releases were granted, either by the Bush Administration or the Obama Administration, the ex-detainees sought the right in federal habeas cases to try to get the “enemy combatant” designation removed from their records and their names.  Two federal District Court judges had turned aside the pleas, and 15 of the individuals then appealed to the Circuit Court. The ruling Friday came in specific appeals by two individuals, but presumably will apply in all such cases.
Under normal criminal law procedures, an individual who had previously been convicted of a crime and then is released after serving a sentence can sometimes pursue a new challenge to conviction on the theory that the guilty verdict results in adverse consequences, such as the inability to get a job or to enjoy civic rights such as voting. The former Guantanamo detainees sought to apply that doctrine to the continuing effects they claimed from being found to be “enemy combatants” — the legal basis that the government formerly relied upon to justify detention at the military prison in Cuba. (The government stopped using the label two years ago.)
The Circuit Court ruled in the specific cases of Nazul Gul, who spent more than four years at Guantanamo before being released and sent to Afghanistan in 2007, and Adel Hamad, at Guantanamo almost five years before being released and sent to Sudan in 2007.
Under U.S. law, any individual who has ever been held at Guantanamo has his name put on the government’s “No Fly List,” and thus cannot take a plane flight into the U.S. at any time.  In addition, when the U.S. sends a detainee to another country, it usually requires the other country to continue to monitor the individual’s activity. Gul and Hamad argued that, as part of this kind of restriction, their travel has been restricted by the foreign nations to which they were sent.  They also argued that their enemy designation may prevent them from seeking asylum in countries with similar entry barriers for those formerly held as suspected terrorists.
Gul and Hamad also contended that, as a result of their designation, they are subject under the laws of war to being arrested and detained again, and maybe even subject to being killed by the U.S. government. Finally, they asserted that their reputations have been harmed.
On the travel restrictions claims, the Circuit Court either concluded that a federal habeas court could not remedy the claimed difficulty, or that the ex-detainees had not supplied sufficient proof that they would suffer such consequences.  It ruled that, in general, when a detainee is sent out of Guantanamo, the individual no longer remains in U.S. custody, and such custody is the usual basis for a federal habeas court to have jurisdiction to hear a challenge.
And, the panel added, even if a federal court had the authority to lift the label from an ex-detainee, that would not mean that the individual had actually been exonerated of possible terrorism charges, but only that links to terrorism had not been proven.
On the claim that the designation may lead to a future arrest, detention or targeted killing by the U.S., the Circuit Court found that claim to be “the most speculative of all.” Moreover, the panel cited a government policy change in March 2009, saying that the government would no longer base its detention policy upon the designation of “enemy combatant,” so that label has lost legal significance.
Finally, the panel rejected the claim of a stigma, harmful to reputation, by concluding that “the label ‘enemy combatant’ brings with it neither a ‘concrete effect’ nor a ‘civil disability’ susceptible to judicial correction.”
In a second ruling on Friday, in another Guantanamo case, the Circuit Court continued its uninterrupted pattern of rejecting challenges to detention by individuals still being held as detainees. That new ruling came in the case of a Yemeni national, Moath Hamza Ahmed al Alwi.  The decision can be found here.
