Cert Petition in Gul

Last week, Nazul Gul and Adel Hassan Amad – both former Guantanamo detainees who were transferred by the United States to their home nations before their habeas petitions were resolved – sought a writ of certiorari from the Supreme Court.   Readers will recall that the United States, in transferring the two men, stated that the transfer did not amount to a determination that the pair were not enemy combatants, or that they no longer posed a threat.   The District Court and the Court of Appeals ruled that the petitioners’ transfer had mooted their cases, despite their claims of innocence, and the stigma and other consequences (inclusion on the no-fly list and so forth) that followed from their ongoing enemy combatant designation. Here are the two questions presented, as formulated by the petitioners:

Where the petitioners established initial habeas jurisdiction, whether the burden of proof should  be on the government, as the party asserting mootness, to establish the absence of direct or collateral consequences from the imprisonment and designation of Mr. Hamad and Mr. Gul as persons who are dangerous and detainable under the Authorization for the Use of Military Force.

Whether, if the petitioners must bear the burden of proving that their cases are not moot, they  demonstrated the existence of sufficient remediable consequences, including conditions of  transfer, statutory impairments, and non-civilian status, to allow their cases to go forward or, in the alternative, whether their cases should be remanded to the district court so that they may further develop facts specific to their cases.