Al Kandari: Gov't Response to Petition for Rehearing En Banc
As we noted at the end of December, Fayiz Mohammed Ahmed Al Kandari filed a motion for rehearing en banc in the D.C. Circuit, asking the court to consider whether Federal Rule of Evidence 1101(e) applies to Guantanamo habeas corpus cases.
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As we noted at the end of December, Fayiz Mohammed Ahmed Al Kandari filed a motion for rehearing en banc in the D.C. Circuit, asking the court to consider whether Federal Rule of Evidence 1101(e) applies to Guantanamo habeas corpus cases. The 3-judge panel, composed of Judges Brett Kavanaugh, Laurence Silberman, and Douglas Ginsburg, issued a per curiam judgment after cancelling oral arguments.
Today, the government submitted its response to Al Kandari's petition. It argues that a plethora of cases before have relied on hearsay evidence, just as the Court did in the panel opinion in this case, and since every judge on the Circuit has taken part in each of those cases (they cite nine of them, including Al Kandari itself), there is no real reason to consider an en banc rehearing. They assert:
Every judge to consider the specific argument raised in the petition for rehearing en banc — that Federal Rule of Evidence 1101(e) prohibits a district court in a Guantanamo habeas proceeding from relying on hearsay evidence unless it falls within one of the hearsay exceptions — has rejected it. And the Supreme Court has denied a petition for certiorari asking it to consider that specific issue. The petition for rehearing en banc in this case should likewise be denied.Read Al Kandari's petition here and the Circuit court opinion here.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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