A group of defense lawyers representing former Guantanamo detainees are arguing that their clients should still be able to challenge their designation as enemy combatants in U.S. court, even though they have already been released from American custody.
The lawyers, led by Shayana Kadidal of the Center for Constitutional Rights, contend that many former Gitmo inmates have continued to suffer severe personal hardship since their release because the United States has not cleared their legal status. They claim their clients have a right to contest the enemy combatant label through habeas hearings, just as American convicts are often entitled to try and clear their records after being released from prison.
Lawyers for both the detainees and the government filed their final briefs on the issue late Monday for Senior Judge Thomas Hogan of the U.S. District Court for the District of Columbia. The same legal issue is also before Judge Emmet Sullivan in a separate case.
Defense lawyers say that, of the detainees who have been released, many are being held in "proxy detention" by foreign countries with the encouragement of the U.S. Many others have to cope with severe limits on their personal freedom, such as travel restrictions that keep them from making religious pilgrimages. Still more have not been able to find work, and blame the stigma attached to having been held at Guantanamo.
"Some men may not care to dignify the 'enemy combatant' designation by continuing to fight it after they've been released. Other men, like my current client at Guantanamo, fear the repercussions of the designation and do want to fight to overturn it after they are released," said David Remes, a former Covington & Burling partner who currently represents 16 Yemeni prisoners. "It is a terribly important issue to some men."
In its briefs, the Justice Department argues that the Supreme Court has only extended the most basic habeas corpus rights to the detainees, which do not include access to the courts after they have been released or transferred. They also say that detainees in foreign custody are beyond the reach of U.S. courts.
The issue of foreign detention may pose the most delicate problem for the Court. Since June 2007, the U.S. has sent all of its Afghani transfers from Guantanamo to the Afghan National Detention Facility at Pulicharki prison, a $20 million, American-built facility where U.S. soldiers officially serve as "mentors" to the Afghani staff. Detainee lawyers claim the facility is actually run by an American defense contractor, and that the U.S. government is still in de facto control of the prisoners.
A district court judge has not ruled on the issue of foreign detention since Boumediene v. Bush. Before that ruling, Senior Judge Gladys Kessler found that a group of Saudi Arabian men transferred to a prison in their home country could not challenge their status in a U.S. Court, despite claims that they were being held at the urging of the American government.
In the case of Ahmed Omar Abu Ali, an American citizen who was held in a Saudi prison, Judge John D. Bates asked lawyers to do a partial discovery to find if the court had jurisdiction. The question became moot when Ali was moved to the U.S. and prosecuted in federal court.
This article first appeared on The BLT: The Blog of Legal Times.