Appellant Brief Available for al Kandari v. Obama
The appellant's brief in the case of Fayiz Mohammed Ahmed al-Kandari v. United States is now public. Al Kandari is a Kuwaiti Guantanamo detainee who is seeking to reverse the Judge Colleen Kollar Kotelly's district court denial of his habeas corpus petition.
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The appellant's brief in the case of Fayiz Mohammed Ahmed al-Kandari v. United States is now public. Al Kandari is a Kuwaiti Guantanamo detainee who is seeking to reverse the Judge Colleen Kollar Kotelly's district court denial of his habeas corpus petition. The brief lists a single question for review:
[W]hether the district court's jurisdiction comes from 28 U.S.C. $ 2241, in which case the Federal Rules of Evidence determine the admissibility of hearsay.The summary of Al Kandari's argument reads as follows:
This Court and the court below have previously held that hearsay is admissible in habeas corpus cases brought by Guantanamo detainees, but neither this Court nor the court below has ever expressly addressed the conflict between those decisions and the plain language of Fed. R. Evid. 1101(e), which provides that the Federal Rules of Evidence apply in habeas corpus cases under 28 U.S.C. § 2241 to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court. The government's only textual defense against the application of Fed. R. Evid. 1101(e) is its contention that habeas cases brought by Guantanamo detainees are based solely on the Constitution, and not on 28 U.S.C. 5 2241, so statutory restrictions on admissibility of evidence do not apply. The government's contention is wrong. Because federal courts other than the Supreme Court have no jurisdiction other than by act of Congress, and the Supreme Court's invalidation of the provision in the Military Commissions Act stripping the district courts of statutory jurisdiction over habeas cases brought by Guantanamo detainees necessarily restored that statutory jurisdiction, the district court's jurisdiction could come only from 28 U.S.C. $ 2241. The district court overstepped its statutory authority by disregarding the express requirement of Fed. R. Evid. 1101(e) in cases under 28 U.S.C. 3 2241, effectively assuming a source of jurisdiction not granted to it by statute. Similarly, this Court overstepped its authority in the Al-Bihani line of cases, applying its own policy preferences rather than the statutory requirements imposed by Congress on the district court's exercise of its jurisdiction under 28 U.S.C. 3 2241. This Court should hold that the district court's jurisdiction is based on 28 U.S.C. 3 2241, reverse the district court's decision denying Mr. Al-Kandari's habeas corpus petition, and remand for hearing based on evidence admissible in accordance with Fed. R. Evid. 1101(e).The appellee brief is due on July 22. The reply brief is due on August 5. Oral argument has not yet been scheduled.
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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