Petitioner's Further Briefing in GTMO Hunger Strike Dispute

Yesterday, pursuant to Judge Thomas Hogan's recent order, lawyers for habeas petitioner Musa'ab Omar al-Madhwani filed a brief addressing the district court's jurisdiction to hear al-Madhwani's emergency challenge to the conditions of his confinement at Guantanamo. The detainee---who is taking part in an ongoing GTMO hunger strike---claims that detention facility personnel denied him potable water, and likewise kept cell temperatures excessively low while failing to provide him with adequately warm clothing.  The district court set a hearing on al-Madhwani's motion---but recently shifted the session's planned focus, from establishing the facts on the ground to resolving the court's power to hear al-Madhwani's motion in the first place.   Thus the judge's order, which, among other things, instructed the petitioner to address the jurisdictional question in a filing due yesterday afternoon. The essence of the detainee's jurisdictional submission (which unsurprisingly also expands on some factual assertions regarding water and clothing) is that the emergency motion was filed within the the context of pending habeas action:

Relying on Section 7(a) of the Military Commissions Act of 2006 (“MCA”), the Government erroneously argues that this Court has no power to entertain the Emergency Motion because it is merely “a conditions-of-confinement complaint in this habeas case.” Govt’s Opposition (Dkt. 976) at 4. The Government’s argument mischaracterizes the Emergency Motion and misapprehends the structure of Section 7(a), which provided:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant.

. . .

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of  an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant . . . .

MCA § 7(a), codified at 28 U.S.C. § 2241(e).

The Supreme Court in Boumediene v. Bush, 553 U.S. 723 (2008), held that Section 7 of the MCA was an unconstitutional attempt to strip the Guantánamo prisoners of the writ of habeas corpus, in violation of the Suspension Clause. Id. at 792. As the Government notes, courts in this Circuit have held that Boumediene invalidated Section 7(a)(1), relating to habeas actions, but did not explicitly disturb Section 7(a)(2) pertaining to “other action[s] . . . relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement.”6 Because the purpose of the Emergency Motion is to ensure that Musa’ab remains alive and able to pursue habeas relief, the Motion falls squarely within Section 7(a)(1), which the Government concedes was invalidated in Boumediene.[]