Letter from the Petitioner in Suleiman

On Tuesday, lawyers for Abdulrahman Abdou Abou Alghaith Suleiman filed this letter with the Clerk of the United States Court of Appeals for the District of Columbia Circuit.  The letter replies to an earlier letter, which was filed by the government after oral argument.  Lead counsel Thomas Sullivan opens with three comments on the government’s letter.  According to Sullivan, the government cited no support for its evident attempt to supplement the record by means of a letter to the Clerk.  He next challenges the government’s claim that the AUMF is not punitive – the government’s lawyers surely would think otherwise, Sullivan says, if they were detained for more than ten years at Guantanamo.  Sullivan’s third point is that there is not “substantial evidence” of his client’s affiliation with al-Qaeda, despite the government’s claim to the contrary.  Judge Reggie Walton had rejected Suleiman’s petition on the sole basis of his alleged Taliban membership – but the judge never assessed the government’s evidence of Suleiman’s alleged connection to Al-Qaeda.  Therefore, in order to avoid a remand for further proceedings before Walton, Suleiman’s appellate brief had included addenda that exhaustively refuted the government’s al-Qaeda based claims.  Yet, Sullivan says, the government’s response brief never challenged the addenda in any way. The letter’s final portion concerns corrections to the transcript of Suleiman’s Combatant Status Review Tribunal (“CSRT”) hearing.  Sullivan here recounts, in detail, his team’s efforts to secure the audio recording of the hearing – beginning with their suspicion, in April of 2010, that the original transcript was partially inaccurate.  Roughly a week before the case’s hearing, Sullivan contacted one of the government’s attorneys, Andrew Warden, and asked for the audio.  Warden explained that, among other things, the audio was “not [] responsive” under the terms of the Case Management Order, and that a request for the audio should have been presented earlier.  Warden therefore did not agree to search for the recording on the eve of trial.  But, remarks made by Sullivan to Judge Walton during the hearing, Warden eventually agreed to search for the audio.  After that, the letter continues, Warden told Sullivan that he had not obtained the CSRT recording.  That lead Sullivan to request it during appellate proceedings in the D.C. Circuit.  According to the letter, the government’s appellate lawyer, Robert Loeb, told Sullivan that he would have to seek the CSRT recording by way of a Freedom of Information Act (“FOIA”) request.  Sullivan filed such a request, but, the letter explains, the request’s slow processing, and the time needed for Suleiman’s Arabic expert to translate the original audio, together precluded Suleiman’s lawyers from relying upon the recording in their opening brief.  After the brief’s submission, Suleiman filed a supplemental appendix with the Court on April 4, 2011.  According to Sullivan’s letter, a comparison of the transcript to the original audio revealed “a series of mistaken attributions to Suleiman which work to his disadvantage, and the omission of statements that [sic] work to his advantage.”   (An attachment to the letter sets forth each of Suleiman's proposed corrections to the transcript.) In closing, Sullivan notes that he has sought the audio since before the hearing, and that the recording was at all times in the government’s hands.  His letter therefore asks the Court to grant Suleiman’s still-pending motion to add the corrected CSRT transcript to the record on appeal, and also to grant Suleiman’s petition for a writ of habeas corpus.