Key DC Circuit Reversal Backs Rights of Alien Detainees

WASHINGTON (CN) — Shredding a decision that said Guantanamo detainees are not entitled to due process, the D.C. Circuit delivered a pivotal reversal Friday to a Yemeni man who has been held without charges for over 17 years.

In no uncertain words, the unanimous three-judge panel ruled that “alien detainees must be afforded a habeas process that ensures ‘meaningful review’ of their detention.”

While extremely promising, however, the decision does not spell immediate relief for the petitioner, 42-year-old Khalid Ahmed Qassim.

Noting that the parties and the District Court handled Qassim’s case “under a faulty understanding of circuit precedent,” the appeals court said it would be premature for it to resolve whether the government has improperly withheld the information that supposedly supports Qassim’s ongoing detention.

“We leave it for the district court to address on remand both Qassim’s claimed constitutional right to access the classified information in the government’s hands and the constitutional source (if any) of such a right,” U.S. Circuit Judge Patricia Millett wrote for the court (parentheses in original). “In so doing, the district court can also address the government’s belated concession, made for the first time on appeal, that some of the sought-after information may properly be disclosed in this case.”

In the two Supreme Court cases that established Guantanamo detainees’ right to habeas corpus – Rasul v. Bush and Boumediene v. Bush – Thomas Wilner represented the detainees.

An attorney with Shearman & Sterling, Wilner took up Qassim’s case three years ago and said Friday’s ruling wiped eight years of wrongful law off the books.

“[This decision] opens the door for the detainees again to get due process of law, be able to see the evidence against them and be able to win their cases and gain their freedom,” he said.

Though Qassim has reserved the right to contest these allegations later, the ruling says he stipulated for the purposes of this appeal to being a member of al-Qaida who was on the front lines with the Taliban when the United States began bombing Afghanistan in response to the attacks of Sept. 11, 2001.

Qassim fled to an al-Qaida guest house and then to the Tora Bora region when the front lines broke — a move that, according to the ruling, made him “present for a nighttime visit from Osama bin Laden.” 

A detainee profile on Qassim that the government published in 2008 describes his behavior at Guantanamo as hostile, with 113 disciplinary infractions including multiple incidents of assault such as kicking at guards while they tried to move him.

The report says Qassim prays for the death of President Bush and has repeatedly threatened to kill the guards when he gets out, including telling one U.S. service member he would “murder him and drink his blood for lunch.”

As for the evidence supporting Qassim’s detention, the government has claimed for years that its materials are classified.

Turning this refusal on its head Friday, however, Millet wrote that “Qassim’s counsel has the right to request that information be declassified,” even if the protective order otherwise prevents detainees from reviewing the classified information themselves.

Millet explained that the parties never tested the disclosure procedures because of the lower court’s faulty understanding of the 2009 decision Kiyemba v. Obama.

Kiyemba holds only that detainees already granted habeas relief are not also entitled to be released into the United States.

“That decision did not decide, or have any occasion to address, what constitutional procedural protections apply to the litigation of a detainee’s habeas corpus petition in the first instance,” Millet wrote. “Nor has any other decision of this circuit adopted a categorical prohibition on affording detainees seeking habeas relief any constitutional procedural protections.”

Millet concluded the opinion by noting that a recent disclosure from the government has complicated matters further: “The government has advised for the first time on appeal that, were Qassim to pursue the available procedures, he might ‘receive[] most or all of the information to which he * * * claims due process entitles him.’” (Redaction in original.)

Barely disguising her scorn, Millett added: “Of course, we would have expected the government to have told Qassim and the district court that before proposing that the parties set up an appeal to this court based on an incomplete record.”

Representatives for the government declined to comment. 

U.S. Circuit Judges Harry Edwards and Cornelia Pillard concurred in the ruling.

Wilner said he anticipates the lower courts will determine detainees are entitled to the right to review the evidence against them.

“He’s been there 17 years. He’s been there 17 years and he’s never been charged with any crime. The most that’s ever been alleged is that he was a member of the Taliban,” Wilner said.

According to Wilner, Qassim would be nearing the end of his sentence had he been convicted in 2002 when he was first interned at Guantanamo.

“It’s disgraceful,” Wilner said.

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