D.C. Circuit Opinions in Al-Alwi and Gul

Today, the D.C. Circuit handed down opinions in two detainee cases, Al-Alwi v. Obama and Gul v. Obama. 

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The first affirms the decision of the district court, which found Al-Alwi lawfully detained by a preponderance of the evidence.  In reaching that outcome, Judges Tatel, Garland and Williams concluded that the district court's factual findings demonstrated that it was more likely than not that Al-Alwi was "part of" Al-Qaeda or the Taliban; and that the district court had not clearly erred or abused its discretion in finding petitioner's admissions, made during interrogation,  sufficiently reliable.  The Court of Appeals also noted that the admissions were supported by inferences from other evidence in the record. Perhaps more interestingly - and contrary to Ben's earlier prediction - Al-Alwi also rejected arguments based upon the trial court's procedural corner cutting.  Among other things, Al-Alwi claimed that he had been entitled to additional time necessary to present his habeas case, but that the district court improperly had refused to grant him a thirty-day continuance.  The Court of Appeals evidently sympathized, stating the denial of the continuance was "hard to understand."  It nevertheless rejected Al-Alwi's argument, reasoning that he had failed to demonstrate "actual prejudice" arising from the trial judge's ruling. The Court concluded by rejecting Al-Alwi's claim that the district court had mismanaged the discovery process, among other things by suggesting to the Government that - contrary to the Court's decision in Bensayah - other agencies besides the Department of Justice did not have to turn over potentially exculpatory material used in preparing the return.   The Court noted that, during the appeal's oral argument and in a subsequent letter, the Government had affirmed that its practices in this and other cases had complied with Bensayah. 

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Gul affirms the district court's consolidated order dismissing the petitioners' cases.  The D.C. Circuit (Judges Ginsburg, Tatel and Brown) concluded that, because the petitioners earlier had been transferred to the custody of foreign sovereigns, their habeas cases had become moot and were no longer justiciable. In this regard, the Court rejected the petitioners' main claim - that their cases were "not moot, because [petitioners] continue to be burdened by the prior detention and continuing designation [as enemy combatants]."  Among other things, the Court explained that it lacked the authority to address some of the alleged consequences of the petitioners' surviving "enemy combatant" designation, such as the travel restrictions imposed by the Sudanese and Afghan Governments; and that other alleged consequences, such as the likelihood of future targeting by the United States, were too speculative in nature.

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We are just now starting to digest the two decisions; look for commentary and analysis to be posted in the next few days.