Government Brief in Post-Transfer Relief Appeal

A few weeks ago we posted the petitioners' joint opening brief in a consolidated appeal before the D.C. Circuit that tests whether federal courts retain habeas jurisdiction even after a detainee leaves U.S. custody, and, accordingly, whether a court can grant relief to detainees who have been transferred from Guantanamo. Last week the government filed its response brief. In this appeal, detainees Nazar Gul and Adel Hassan Hamad have asked the D.C. Circuit to find that they are entitled to judicially ordered relief in the form of a habeas merits hearing; they argue that the “collateral consequences” of their transfer to Afghanistan and Sudan with the government’s “enemy combatant” designation intact entitle them to a hearing. They seek to remedy the "practical consequences to their lives and dignity" that stem from "uncorrected Executive declaration of their status as enemy combatants and conditions negotiated for the transfer to the home countries." The government’s brief responds to the petitioners' brief in two parts.  First, the government argues that the habeas claims are moot because “any possible remedy would depend entirely on the actions of third parties” and because “‘prudential concerns,’ such as comity and the orderly administration of criminal justice,” counsel against the courts’ exercise of habeas jurisdiction in these and similar cases.  The government writes that "[t]he only issue in the habeas case is the lawfulness of the United States’s current detention of a person. . . . Therefore, even if petitioners were actually subject to consequences of that prior designation, there would be no remedy available in habeas." The brief then turns to refute the petitioners’ “collateral consequences” argument.  That argument draws upon a Supreme Court case holding that, under certain circumstances, the “in custody” language of the federal habeas statutes requires only that the petitioners be “in custody” at the start of the habeas action.  The government contends that the circumstances contemplated by the doctrine are unmet in this case because the petitioners cannot identify, as they must, “some concrete and continuing injury” that is “susceptible to judicial correction.” The government concludes with the following:

Whether or not there was good cause at the time to conclude that petitioners were detainable, and whether or not their cases were delayed in the district court, petitioners are requesting vastly expanded judicial supervision of the operations of sovereign foreign governments and the classified national security matters of the Executive. They are also requesting the expenditure of enormous judicial and government resources in litigating the many potential claims of former detainees. These factors alone militate against maintenance of petitioners’ claims as an equitable and prudential matter, and show as a legal matter why the district court’s dismissal of these and the more than 100 other habeas cases as moot was correct.

As previously mentioned, the outcome here will guide a number of similar appeals from Judge Hogan’s April 2010 decision; those appeals are now being held in abeyance.