Court asked to break detainee case logjam
on Feb 13, 2007 at 3:54 pm
UPDATE: 3:00 p.m. Counsel have now filed in the Supreme Court a motion to file the appeal papers under seal, pending declassfication of a redacted version. Because of the restrictions in preparing a classified document, the motion also asks permission to file the papers in a format that does not conform to the Court’s usual rule. The motion questions the need for classification of the document, and suggests relief will be sought if the government does not promptly clear a censored version. The papers indicate that the detainee’s name is Anwar Hassan, and that “Ali” is a pseudonym used to shield his identity from authorities in China. The motion can be found here. (UPDATE Wednesday p.m. That motion, titled In re Ali, has now been docketed as 06M73.)
Lawyers for a Chinese citizen being held at the U.S. military prison camp at Guantanamo Bay, Cuba, plan to file a new claim in the Supreme Court Tuesday in a maneuver to try to re-start the stalled process of federal court review of detainees’ challenge to their captivity. Because the D.C. Circuit Court has taken no action on important test cases pending there for nearly two years, virtually all detainee habeas cases pending in U.S. District Court in Washington have been postponed until the Circuit Court rules. Other detainee appeals in the Circuit Court also have been stayed. Once again, the Circuit Court released opinions on Tuesday, without deciding the pending cases.
Tuesday’s filing in the Supreme Court on behalf of an individual identified only as “Ali” is an effort to get around the Circuit Court’s inaction or, secondarily, to prod the Circuit Court to reach a decision. No matter how the Circuit Court rules, one or more appeals from that to the Supreme Court are expected. (Tuesday’s filing was the second this month to try to get the detainee cases moving; the Circuit Court was asked on Feb. 2 to expedite its rulings.)
The filing Tuesday is an original petition for habeas corpus, and will stress the history of habeas relief as a speedy remedy. It will ask three questions: whether the Supreme Court has jurisdiction to hear this case directly, whether it will order the District Court to rule on Ali’s pending habeas challenge in view of the inaction at the Circuit Court, and whether the Court will direct the District Court to decide whether Ali is properly classified by the military as an “enemy combatant.” Ali was cleared of that designation by one military tribunal, but a second tribunal reversed position.
Ali’s petition in the Supreme Court is not yet available, because it must first clear intelligence censors’ review. Thus, it is unkown at this stage what the docket number will be.
Ali, sometimes identified in military documents as Mohammad Ali and by a fictitious name, Hassan Avnar, is a Chinese citizen who is a member of the long-persecuted Uighur minority in China. Military officials have said they suspect he was a member of a terrorist group and took military training with that group in Afghanistan. His lawyers have said he took military training only to fight against Chinea, not against the U.S. Ali’s habeas petition in the District Court can be found here.
His case was put on hold last March 31, just as other detainees’ habeas cases have been. U.S. District Judge Ellen Segal Huvelle said the Ali case should await the outcome of the Circuit Court’s review of the two packets of pending detainee cases — Boumediene v. Bush (Circuit docket 05-5062 and others) and Al Odah v. U.S. (docket 05-5064 and others). Judge Huvelle refused in December to lift that stay.
One of the reasons for delay in getting public access to Ali’s petition is that his attorneys had to prepare the document in a secure government facility with no clerical aid, due to classification procedures. There are special procedures governing the preparation of such documents. His attorneys thus will be asking the Supreme Court’s permission to file the habeas writ in a form different than that required by Court rules, because of the difficulty in preparation.
The blog will post the new habeas petition as soon as it becomes available.
