Guantanamo update

Judicial decisions

Federal Court maintains stay on Khadr habeas petition
(JURIST) The US District Court for the District of Columbia on Tuesday allowed Canadian Guantanamo Bay detainee Omar Khadr to amend his 2004 habeas corpus petition, but refused to lift the stay on the petition pending the conclusion of his military commission.

The petition was stayed under a criteria set forth by the US Supreme Court’s 1975 decision in Schlesinger v. Councilman, staying action on the petition until the resolution of the military commission proceedings because the claims in Khadr’s habeas petition can be raised during the commission or in the appeals process.

Judge John Bates still allowed Khadr to amend his petition, finding that it was not “futile” as the government alleged, because the stay may be lifted after Khadr concludes his appeals from the commission. Khadr argued that the intent for district courts to hear his habeas petition despite the ongoing commission was demonstrated by the differences in the military commission acts of 2006 and 2009, in which § 950j(b) of the 2006 act, providing for district court review only after the conclusion of the military commission, was removed. Bates rejected this. Additionally, the court maintained the stay on the petition despite Khadr’s argument that the amended petition fell under one of the exceptions to Councilman, arguing that the military lacked personal jurisdiction over him because he was a juvenile at the time of his capture and that the military commission system established by Congress was unconstitutional. Bates rejected both arguments, finding that the jurisdictional argument did not fall with the Councilman exceptions, and cited the Supreme Court case of Hamdan v. Rumsfeld in upholding the constitutionality of the military commissions.

Federal Judge grants Yemeni Guantanamo detainee’s habeas petition
[JURIST] A judge for the US District Court for the District of Columbia on Wednesday granted the habeas corpus petition of Yemeni citizen Adnan Farhan Abdul Latif and ordered his immediate release from the Guantanamo Bay detention facility. Latif, who has been in custody for over eight years, contends that he was in Pakistan for medical treatment when he was arrested and turned over to US forces. According to a lawyer for Latif, he suffers from mental illness and depression, and he remains suicidal. The judge ordered the Obama administration to take all necessary steps to ensure that Latif is released. In a separate decision announced Wednesday, a federal judge denied the habeas petition of Guantanamo detainee Abdul-Rahman Sulayman, ruling that he can continue to be held in custody indefinitely. Sulayman has also been in custody for over eight years. The rulings in both cases remain under seal as they are examined for possible security issues. The US Department of Justice (DOJ) is considering whether to appeal the ruling in Latif’s case.


Spain and Latvia accept two Guantanamo detainees
“The United States coordinated with the governments of Spain and Latvia to ensure the transfers took place under appropriate security measures and will remain in close consultation with both governments regarding these individuals,” the Pentagon said in a statement. The identities of the two detainees were “withheld for privacy reasons at the request of the receiving governments,” the Pentagon said.

In announcing the transfer, the Spanish Interior Ministry  said that the man, an Afghan national, arrived in Spain on Wednesday and will be given residency and work permits. The ministry also noted that the former-detainee has no pending charges of terrorism against him in any jurisdiction. Spanish Foreign Minister Miguel Angel Moratinos indicated that Spain was willing to increase the number of detainees accepted in order to help remedy what it sees as an unacceptable situation at the detention facility.


Michael B. Mukaseki: “Guantanamo is no venue for a civilian jury trial”
The Washington Post has an opinion piece by former Attorney General and judge Michael Mukasey, arguing that there were fatal flaws in the recent suggestion that Congress should designate Guantanamo Bay part of an existing federal district court or as a separate federal district court so that those accused of the Sept. 11, 2001, attacks can be tried there.


A civilian trial would not “uphold the rule of law,” nor would avoiding a military commission deny the defendants their self-styled status as “warriors.” The civilized world has tried over several hundred years to establish rules of warfare so that those who wear uniforms, follow a recognized chain of command, carry their arms openly and do not target civilians are treated as prisoners of war when captured. Those who follow none of these rules are treated as war criminals, not as ordinary defendants accused of ordinary crimes and entitled to far more robust protection than war criminals. Congress recognized this when it passed the 2006 Military Commissions Act to deal with Islamist terrorism; disregarding that statute is lawless. Moreover, giving those who violate the laws of war more protection than is accorded those who follow such rules turns those rules and their underlying morality on their head.


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