Abdullah to DCCA: Make the District Court Decide My Motion, Please
Lawyers for Hani Saleh Rashid Abdullah, a Yemeni detained at Guantanamo, yesterday petitioned the D.C. Circuit for a writ of mandamus.
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Lawyers for Hani Saleh Rashid Abdullah, a Yemeni detained at Guantanamo, yesterday petitioned the D.C. Circuit for a writ of mandamus. The gist: Abdullah wants the circuit court to force the district court decide a long-pending motion of his.
While pursuing his habeas case, in 2010, Abdullah moved for a preliminary injunction. Among other things, this challenged his continued detention as contrary to a 1946 executive agreement between the United States and Yemen. The government naturally opposed the bid. But the district court did not resolve the matter. Exasperated, the detainee's lawyers this April filed a supplemental memorandum in support of preliminary relief. It also prompted no reaction from the district judge.
The protracted delay seemingly brought on Abdullah's mandamus petition, which begins as follows:
On April 5, 2013, the United Nations High Commissioner for Human Rights concluded in a public statement that the designation of prisoners at Guantanamo for indefinite detention puts the “United States … in clear breach not just of its own commitments but also of international laws and standards that it is obliged to uphold. When other countries breach these standards, the US – quite rightly – strongly criticizes them for it.”In his motion for a preliminary injunction filed October 10, 2010, Abdullah made exactly this point and requested an injunction declaring the illegality of indefinite detention and restraining respondents from so detaining him. The court has taken no action on this motion. The High Commissioner also observed that when the legality of detention is tested in court “Any ensuing judicial proceedings must scrupulously respect due process and fair trial standards.” Id.We suggest that this court’s failure to address Abdullah’s Motion for a Preliminary Injunction does not meet these requirements and this Court should promptly undertake to resolve the pending motion.
The Court is not alone in failing to live up to the requirements ofinternational law and the commitments the United States has made to Yemen: all three branches of government have failed. Recognizing the unfairness of indefinite detention – if not its illegal nature – both Congress and the President have adopted measures calling for periodic review of detention. (See Pub. L. 112-81 § 1023, Executive Order 13567, 76 Fed.Reg. 13277 (March 10, 2011); see also Department of Defense DTM 12-005 (Oct. 31, 2012).) While these measures would not be sufficient to eliminate the per se violation of international law, even were they applied as enacted,they might mitigate the harm, somewhat, especially in the case of Abdullah.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
