Oral Argument Held in Post-Transfer Relief Appeals

Today the D.C. Circuit heard oral argument in Gul v. Obama and Hamad v. Obama, the consolidated appeals that ask whether a federal district court has jurisdiction to consider the claims of habeas petitioners Nazar Gul and Adel Hassan Hamad--both of whom are no longer at Guantanamo Bay. As we have previously covered the petitioners’ main arguments and the government’s responses, and because the parties' arguments today tracked very close with their written submissions, I will keep this brief. No pun intended. Gul and Hamad are both seeking relief from what they claim are injuries that stem chiefly from their designations as enemy combatants, designations that remained intact after they were transferred from U.S. custody to their home countries. They also seek relief from restrictive conditions of transfer they argue continue to affect them. Because they left U.S. custody prior to the merits resolution of their habeas cases, the government claims the cases are moot. The petitioners argue, however, that a court should be able to order them specific relief from ongoing injuries, including

judicial exoneration from the enemy combatant designation and mitigation of the consequent stigmatization and restrictive conditions on their lives as citizens of the world, including travel, surveillance, potential reincarceration, and even extra-judicial killing.

In particular, Gul and Hamad have appealed an order that Judge Hogan issued in April 2010. That order held that the court lacked jurisdiction to even consider the merits of these petitioners' requests (and similar requests of many other petitioners) because their claims were, as the government contends, moot. There was no way, Judge Hogan wrote, that a district court order could provide the relief the petitioners sought: "The alleged injuries are either speculative or beyond the Court’s authority to redress, and therefore do not save the petitions from being moot." At today’s argument, the panel of Judges David Tatel, Douglas Ginsburg, and Janice Rogers Brown seemed interested in why the resolution of this case doesn't in fact flow from the D.C. Circuit's 2009 Kiyemba II decision. The petitioners' counsel, Stephen Sady, tried to steer the court's attention back to the relevance of the "collateral consequences" doctrine, which permits individuals who are no longer held in U.S. custody to sustain habeas actions as long as they were “in custody” at the start of the habeas action and continue to suffer harms. He argued that the consequences his clients continue to face are worse than those suffered by persons who succesfully invoked the doctrine to seek relief from the consequences of, for example, criminal convictions. Judge Tatel seemed concerned with the fact that, while that may be true in some sense, some of the consequences imposed in this case were imposed not directly by U.S. authorities but by the home countries to which the detainees were repatriated: Afghanistan and Sudan. Judge Tatel asked several questions examining this facet of the case. Judge Ginsburg chimed in to question whether the record reflects a link between the enemy combatant designation and the conditions of transfer. Sady replied that, while there was nothing on the record in these cases, it was a "logical inference" that such a link existed. Tony West, Assistant Attorney General for the Justice Department's Civil Division, argued for the government. Picking up some of the threads the panel had focused on during Sady's presentation, he emphasized the relevance of Munaf v. Geren and made sure to remind the court of the "prudential concerns" that counsel against issuance of the writ even if jurisdiction did lie. Presumably he was referring to concerns like "comity and the orderly administration of criminal justice," which the government mentioned in its brief in a quote from Munaf. Judge Brown interjected to refocus West's attention on the injury claims. She queried whether the government hadn't conceded the application of the collateral consequences doctrine in the district court. West replied that he did not believe the government had, but that, in any event, the doctrine would not aid these petitioners because the court had no ability to reach their alleged injuries. There was also a brief exchange about whether a court might presume a remediable harm in order to avoid unjustly depriving a claimant of relief. West said that, while that may be true in some contexts, it is not true here. The Supreme Court has declined to extend the presumption of a harm that exists in criminal cases to the parole-revocation context, he argued, and that the D.C. Circuit should not presume harm in this case. The burden to show sufficient harm is still with the petitioners, and these petitioners had not met their burden.