Judge dismisses scores of Guantánamo habeas cases

April 7, 2010

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By Carol Rosenberg
April 5, 2010
McClatchy Newspapers

WASHINGTON — A federal judge has dismissed more than 100 habeas corpus
lawsuits filed by former Guantánamo captives, ruling that because the Bush and
Obama administrations had transferred them elsewhere, the courts need not decide
whether the Pentagon imprisoned them illegally.

The ruling dismayed attorneys for some of the detainees who’d hoped any favorable
U.S. court findings would help clear their clients of the stigma, travel restrictions
and, in some instances, perhaps more jail time that resulted from their stay
at Guantánamo.

U.S. District Judge Thomas F. Hogan wrote that he was "not unsympathetic"
to the former detainees’ plight. "Detention for any length of time can
be injurious. And certainly associations with Guantánamo tend to be negative,"
he wrote.

But the detainees’ transfer from Guantánamo made their cases moot. "The
court finds that petitioners no longer present a live case or controversy since
a federal court cannot remedy the alleged collateral consequences of their prior
detention at Guantánamo," he wrote.

Hogan’s ruling, issued last Thursday, but not widely publicized, closed the
files on 105 habeas corpus petitions, many of which had been pending for years
as the Bush administration resisted the right of civilian judges to intervene
in military detentions. The U.S. Supreme Court resolved that issue in 2008,
ruling in Boumediene v. Bush that the detainees could challenge their captivity
in civilian court. Since then, judges have ordered the release of 34 detainees
while upholding the detention of 12.

Attorneys for the ex-detainees were deciding Monday whether to appeal the ruling
to the U.S. Court of Appeals for the District of Columbia, said Shayana Kadidal,
an attorney at New York’s Center for Constitutional Rights, which has taken
the lead in championing Guantánamo habeas petitions.

The former prisoners who’d filed the dismissed suits ranged from "people
who disappeared in Libyan prison to people who are home living with their family
and can’t get a job," Kadidal said.

The "vast, vast majority" of former Guantánamo prisoners are under
some form of travel restriction, he said, as a result of either transfer agreements
between the United States and where they now live or the stigma of having spent
time in U.S. military custody.

"If you want to do haj at some point in your life," he said, referring
to a Muslim’s duty to make a pilgrimage to Mecca, a freed detainee would need
to get those restrictions lifted.

Moreover, he added, CCR affiliated attorneys have tracked former captives to
prison at Pol-i-charki, Afghanistan, that was once run by the U.S. military.
He said "the U.S. may be pulling the puppet strings" of their continued
captivity.

In the case of two men sent home to Sudan, according to an affidavit filed
by an investigator with the Oregon Federal Public Defender’s office, which is
representing them, the United States required as a condition for their release
that Sudan seize their travel documents and prevent them from leaving the country.

Hogan said the attorneys for the former detainees hadn’t offered enough proof
that other countries were operating essentially as U.S. proxies. "Petitioners
are short on examples, except for the fact that former Guantánamo detainees
from Afghanistan transferred back to Afghanistan have been detained at a detention
facility built by the United States," he wrote.

Of the 183 men currently held at Guantánamo, 22 have had their habeas cases
resolved — 10 who were ordered released but are still being held and the
12 whose detentions were upheld.

It was unclear, however, how many of the other 161 might have cases pending.
Some detainees have refused American lawyers’ offers to sue on their behalf,
apparently rejecting the authority of any U.S. court to sit in judgment on them.
An Obama administration panel has determined that about 50 of those should be
held indefinitely without charges.

(Rosenberg reports for The Miami Herald.)