Court Cases

"State secrets" doctrine

• 28 Apr 2009: Mohamed v. Jeppesen Dataplan, Inc., No. 08-15693 (9th Cir. 28 Apr 2009).  The Ninth Circuit reversed and remanded this case to the district court, ruling that the state secrets doctrine could be used by the government to exclude evidence, but could not be used as a jurisdictional bar.  Here's the analysis from ScotusBlog. The ACLU's National Security Project represents the five plaintiffs, all former detainees who claim torture at the hands of those to whom Jeppeson Dataplan, the contractor, delivered them.  The ACLU's media release is an explanation for the lay person, and includes links to further information about the case.  
• The "state secrets" doctrine was developed mid-1900's for use in civil damages actions against a federal actor.  Originally used as a procedural evidentiary privilege, it has morphed into a jurisdictional bar to federal court review of a claim against the government.  "National Security Issues in Civil Litigation:  A Blueprint for Reform" by Justin Florence and Matthew Gerke (17 Nov 2008) a joint project of the Brookings Inst., Georgetown U. Law Center, and the Hoover Institution) provides background.  Another accessible and helpful report is from the Constitution Project, "Reforming the State Secrets Privilege," (31 May 2007).
• 10 Feb 2009:  Mohamed v. Jeppesen Dataplan, Inc., No. 08-15693 (9th Cir.). This lawsuit was brought by victims of U.S.extraordinary rendition flights organized by the Bush administration against a subsidiary of Boeing.  The case was dismissed by the district court on the basis of the state secrets doctrine. In oral arguments on appeal, the attorney for the new Obama administration stunned the court by adopting the Bush administration's position on state secrets. 
• 9 Feb 2009:  US Atty Gen. Eric Holder ordered a review of all government claims invoking the state secrets privilege.
• El-Masri v. Tenet. Khaled El-Masri is a German citizen of Lebanese descent, kidnapped in Macedonia by U.S. CIA agents, transported to a secret Afghan prison, held and interrogated for 6 months by the CIA, and then released on a roadside in Albania.  

The ACLU brought a lawsuit on El-Masri's behalf against then-CIA director George Tenet, but the suit was dismissed on the government's motion that to proceed would violate the "state secrets" doctrine  (El-Masri v. Tenet, 437 F.Supp 2d 530 (E.D. Va. 2006)).  This determination was upheld in the Fourth Circuit (El-Masri v. Tenet, 479 F.3d 296 (4th Cir. 2007)).  The U.S. Supreme Court denied certiorari, leaving the Fourth Circuit ruling in place.

Tort claims by former detainees (infliction of torture):

• 23 Apr 2009:  Note that the 9th Circuit case, Mohamed v. Jeppesen Dataplan, Inc. No. 08-15693 (9th Cir. 23 Apr 2009), see above under "State secrets" doctrine, is a claim for monetary damages against the contractor which flew detainees to foreign and U.S.-maintained facilities in the extraordinary rendition-to-torture program for the Bush administration.
•  24 Apr 2009:  Upon remand from the Supreme Court, the D.C. Circuit Court in Rasul v. Myers (06-5209) once again dismissed the RFRA lawsuit, bypassing the constitutional issue and ruling that the defendant officials had legal immunity at the time they engaged in the actions that were the subjects of the lawsuit.  See ScotusBlog's summary and explanation of the ruling.  
• 13 Mar 2009: In briefs to the D.C. Circuit Court in Rasul v. Myers (06-5209), the Obama administration urged the court to dismiss this lawsuit by four British former G'Bay detainees against Secty Rumsfeld and various military officers for torture, abuse, and violation of the detainees' religious rights.  ScotusBlog posted a summary and backgrounder, with links to the briefs of both the British and the government.  The D.C. Circuit Court had previously dismissed the suit in Rasul v. Rumsfeld  (D.C. Cir. 06-5209, Jan. 11, 2008).  On appeal, the Supreme Court remanded the case to the circuit court for reconsideration in light of its determination in Boumediene, acknowledging the G'Bay detainees' right to bring a writ of habeas corpus in U.S. federal courts (see below).

Bagram Airfield Detainees (Afghanistan): 

• 2 Apr 2009: In Maqaleh v. Gates, 06-1669, (D.D.C.) and two related cases, the federal district court denied the government's motion to dismiss petitioners' habeas corpus petitions.  The court applied Boumediene and held that Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held an unreasonable amount of time without process (here, greater than six years) may invoke the Constitution's Suspension Clause and thus the privilege of habeas corpus. (The court deferred ruling on the motion to dismiss as to a fourth Bagram habeas petitioner who is an Afghan citizen.)  Click here for ScotusBlog summary and analysis of the district court opinion.  The administration filed an appeal of this decision.
• 12 Mar 2009:  Amnesty International reports that the U.S. filed statistics of Bagram detainees as ordered by the court, but did so with only a redacted report made public.  "Administration opts for secrecy on Bagram detainee details." [See Ed. note below.]
• 20 Feb 2009:  In a 2-sentence filing with the appellate court, the Obama administration adopted the position of the Bush administration, that U.S. courts have no jurisdiction to hear Bagram detainees' habeas petitions.  ScotusBlog details the ramifications of this decision.
• 26 Jan 2009:  Maqalah v. Gates (D.C. District Court 06-1669).  President Obama's Executive Orders issued 22 Jan 2009 did not include review of the detention of over 600 individuals at Bagram Airfield outside Kabul, Afghanistan. However, the district court hearing habeas cases arising from detainees at Bagram ordered the government to refine its position about the Bagram detainees in order to facilitate court procedural actions in the cases.  The cases are currently before the court on the government's motion to dismiss for lack of jurisdiction.
• 7 Jan 2009:  Maqalah v. Gates.  The district court ordered the government to produce up-to-date statistics regarding the detainees at the Bagram Airfield: How many detainees are held there?  How many of the detainees were captured outside Afghanistan?  How many of the detainees are citizens of Afghanistan?

Al-Marri case (non-U.S. citizen arrested inside U.S., detained within U.S. in navy brig): 

• 23 Mar 2009:  Al-Marri appeared with counsel in the Illinois district court and pled not guilty to the criminal charges filed against him. 
• 6 Mar 2009:  The Supreme Court dismissed the Al-Marri case and vacated the Fourth Circuit's opinion.  Here's the ScotusBlog summary of this action, with a link to the Supreme Court's summary order of dismissal and vacateur.
• 26 Feb 2009: In a break from the Bush administration's handling of this case, following action directed by the Obama DoJ, a federal grand jury in Peoria, IL indicted Al-Marri in Peoria, IL on two criminal terrorism charges. Al-Marri will be transferred from the South Carolina brig where he has been detained to a civilian jail in Illinois for trial. 
• Simultaneously, the Obama administration moved the Supreme Court to act on Al-Marri's appeal of the Fourth Circuit's determination that the president has authority to detain "enemy combatants," either dismissing the case for lack of jurisdiction (because the legal issue involved in the case no longer exists), or to vacate the appellate case, removing it as precedent, either as moot or for "equitable considerations." ScotusBlog explored this latest turn of events.  
• 23 Feb 2009:  In "Hard Cases," a New Yorker article, Jane Mayer uses the Al-Marri case history as an illustration of the difficulties inherent in the "enemy combatant" designation and of the difficulties faced by the Obama administration in dealing with detainees who appear to be difficult to convict but who appear to pose a palpable threat if released.
• 23 Jan 2009:  Al-Marri v. Spagone (S.Ct. case no. 08-368).  The Supreme Court granted the government's request to delay filing its brief on the merits until 23 Mar 2009, a request submitted in response to Pres. Obama's memo ordering review of the Al-Marri detention.  Oral argument is still scheduled for April 27.  ScotusBlog links to a collection of the 18 amicus briefs that have been filed in the Court, reflecting a broad range of groups in support of Al-Marri's position.
• 22 Jan 2009:  The President ordered the Attorney General, Secretary of Defense, Secretary of Homeland Security, and Director of National Intelligence to undertake a review of the detention of Ali Saleh Kahlah al-Marri, the only detainee housed on U.S. soil.  The memo brings Al-Marri under the case review procedure provided for G'Bay detainees by Executive Orders issued on 22 Jan 2009 (links to these Executive Orders are posted on the Executive branch actions page).
• 15 July 2008: Al-Marri v. Pucciarelli (06-6427). In a split decision, the 4th Cir. ruled that the president has the authority to name U.S. persons captured on U.S. soil as "enemy combatants"  and hold them indefinitely, but that Al-Marri has the right to petition civilian courts for review of his detention.  There are seven separate opinions for a total of 216 pages, linked from ScotusBlog's summary of this complex ruling. (Cert. granted.  Supreme Court case no. 08-368.)
• Al-Marri v. Wright (487 F.3d 160 (4th Cir. 2007)).  The Fourth Circuit invalidated the detention of a non-U.S. citizen legally residing in the U.S. and detained as an "enemy combatant."  The court's holding was based on the grounds that the legal category of "enemy combatant" does not exist in non-international armed conflicts like the conflict announced by the U.S. administration against al Qaeda.  The court suggested that transfer for criminal charges might be appropriate under the circumstances of this case, limiting its holding to further detention as an "enemy combatant."  The court granted the government's motion for rehearing en banc, and oral argument for reconsideration was held 31 Oct 2007.

G'Bay habeas corpus cases: 

• 13 Mar 2009: Revised statement of authority for detention of "enemy combatants" at G'Bay.  The Obama administration filed a revision of its statement of authority for detention at G'Bay of suspected al-Qaida and Taliban supporters in In re: Guantanamo Bay Detainee Litigation, 08-442 (D.D.C.)., accompanied by a statement of Attny Gen Holder.  The new standard relies on the congressional Authorization for the Use of Military Force, enacted after the 9/11 attack.  The declaration is explicitly limited to the detainees held at the G'Bay facility and informs the court that the government is continuing to develop a comprehensive detention policy.  Here's a link to the ScotusBlog analysis, including the differences between the Bush and Obama statements.
• 6 Mar 2009:  Defense counsel access to info.  After considerable delay awaiting the outcome of the Bismullah case in the Supreme Court and subsequent supplementary briefing, the D.C. Circuit Court issued a per curium opinion in Al Odah v. U.S. (05-5117). Under the decision, the government must turn over to the court all information concerning a detainee, rather than redacting certain material (e.g., sources of information or information about other detainees) and sending the redacted file to detainee counsel.  The court would determine what information is relevant to a particular detainee's case and would forward that material to detainee's counsel. The court specified a procedure in which summarized information could be supplied to the court. The ScotusBlog summary of the decision and a link to the opinion is here.
• 10 Feb 2009:  Force-feeding decision.  Several dozen inmates at G'Bay are refusing food.  In response, they are strapped into restraining chairs for an hour or more while they are administered liquid nutrition through a nose-fed feeding tube.  Two of the detainees who have filed habeas petitions moved for injunctive relief from the force feeding procedure. In Al-Adahi v. Obama, No. 05-280 (D.D.C.), Judge Kessler denied the motion, holding that the MCA removed court jurisdiction of conditions of confinement claims.
• 21 Jan 2009:  The government filed motions in the federal district court in Washington, D.C. to stay all habeas corpus proceedings arising from detentions at the G'Bay prison facility, arguing that the delay is necessary for the new Obama administration to make an assessment of U.S. detention policy.  The request, which is expected to be granted, affects over 200 habeas corpus cases filed in the federal court in D.C.
• 14 Jan 2009.  Gharani v. Bush.  U.S. District Court Judge Richard J. Leon ordered that Mohamed el Gharani be released from G'Bay, ruling that the government failed to offer sufficient evidence that Gharani is an enemy combatant.  Gharani, a citizen of Chad, was captured in Pakistan and transferred to G'Bay in 2002, when he was 14 years old.  The court order was issued in response to proceedings in Gharani's habeas corpus petition, (No. 05-429, D.D.C.).
• 16 Dec 2008:  The government won major procedural relief in a revised case management order entered by the district court in the 113 coordinated G'Bay habeas cases involving almost 200 detainees.  The government will have to produce less evidence in government control, and defense counsel are limited in what evidence they discuss with their clients.
• 28 July 2008.  The federal district court for the District of Columbia has created a web page for the Guantanamo habeas cases.
• CRS report: for Congress:  "Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,"  updated July 29, 2008.

G'Bay Uighur detainees: 

• 6 Apr 2009: The 17 Uighurs in indefinite detention at G'Bay (who won their habeas case in the district court but lost on appeal when a D.C. Cir. panel ruled that the court was powerless to fashion a remedy) applied for cert. in the Kiyemba case.  Click here for ScotusBlog analysis of the import of the filing and for a link to the petition for cert.  
• 20 Mar 2009:  Defense counsel filed motions for conditional contempt against defendant Secty of Defense Gates in the Parhat and Abdusement cases, arguing that the court had ordered Gates to release or transfer the Uighur petitioners and that Gates has done nothing to follow through on the order of the court.  The motion argues that the subsequent decisions in Bismullah and Kiyemba do not excuse compliance with the court's earlier order.
• 18 Feb 2009:  The U.S. Court of Appeals for the D.C. Circuit entered a final determination reversing the district court's determination that the 17 Uighurs detained at G'Bay were to be released in the U.S. and remanding the case to the district court for further proceedings.  ScotusBlog provided a summary of and link to the opinion, pointing out that the appellate panel offered no guidance to the district court for what to do with the case on remand.
• 21 Oct 2008: The U.S. Court of Appeals for the D.C. Circuit entered a final order in Kiyemba v. Bush (08-5424), staying Judge Urbina's order pending consideration of administration arguments against immediate release of the Uighurs into the U.S.  ScotusBlog provided a summary explanation.
• 7 Oct 2008.  Kiyemba v. Bush, No. 08-5424 (D.C.Cir.).  The Uighur detainees at G'Bay were at the center of another groundbreaking decision (see notes on the Parhat case, below).  The U.S. District Court in D.C. granted the habeas petitions of the 17 Uighurs held at G'Bay, all of whom have been cleared for release by even the administration's processes.  The delay in their release was finding a country that would accept them, but the judge ordered them to be produced in person in the D.C. courtroom for release from detention, into the United States. Families in the U.S., including Uighur immigrants, were lined up in a complex plan for housing and oversight of the released detainees. Then the D.C. Court of Appeals entered an "administrative stay" to buy time for sorting out the appeal process. CCR's site has a set of document links to the case.
• 1 July 2008:  In a unanimous decision first announced on June 23, the U.S. Court of Appeals for the D.C. Circuit overturned Huzaifa Parhat's classification as an "enemy combatant." Parhat is a Chinese Uighur detainee at G'Bay,  one of a number of dissident Chinese Muslims captured in Pakistan, whom the Pentagon acknowledges are suitable for release but who are in mortal danger if returned to China. In Parhat v. Gates (No. 06-1397, D.C.Cir.), the court ruled that, under the Detainee Treatment Act, the Pentagon had to either release Parhat or hold a new tribunal to review his status.  This case was the first federal appellate review of "enemy combatant" status, under the CSRT procedure approved by Congress.  It was not a habeas appeal. The court released a redacted opinion (linked here) for publication on July 1.
• 4 April 2008: Excellent legal summary of oral argument in Parhat v. Gates  (D.C. Cir. 06-1397), the first civilian court review of the Pentagon's CSRT system of labeling a G'Bay detainee an "enemy combatant," leading to continued detention.  Huzaifa Parhat is a Chinese Uighur, a persecuted Muslim minority in southeastern China.  Includes link to transcript.

• May 2008: Are U.S. federal courts equipped to handle sensitive terrorism cases?  Over 120 terrorism cases handled by U.S. federal courts since 1993 are analyzed in Human Rights Firsts' new report:  "In Pursuit of Justice:  Prosecuting Terrorism Cases in the Federal Courts," by James Benjamin, Jr. and Richard Zabel (including database of cases).  Analysis and summary of the report, "Taking Stock of Federal Courts' Fitness to Prosecute Terrorism Cases," by Gabor Rona, International Legal Advisor for Human Rights First, posted on the American Constitution Society's website. 

"Building block" cases (post-9/11)

• "Enemy combatant" status determination (non-U.S. citizen captured outside U.S., detained at Guantánamo Bay).  Rasul v. Bush (542 U.S. 466 (2004)).  The U.S. Supreme Court ruled that federal courts have jurisdiction under the general habeas corpus statute, 28 U.S.C. sec. 2244, to entertain petitions from prisoners at the U.S. Guantánamo Bay prison facility.   In response to this case, the administration developed its Combat Status Review Tribunal (CSRT) procedure, in an attempt to provide an alternative procedure, substituting for habeas review in the federal courts, for review of a detainee's continued detention with due process protections.
• G'Bay habeas corpus actions:  12 June 2008:  In Boumediene v. Bush, No. 06-1195, the Supreme Court held that U.S. detainees at Guantanamo Bay retained the right to file a habeas corpus action in the U.S. District Courts.  Detainees may file a habeas action without exhausting the CSRT appeals process.  
• Military tribunals.  Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). The U.S. Supreme Court held that  military commissions set up by the Bush administration after 9/11 to try detainees at Guantanamo Bay lack the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions, specifically violating Common Article 3.  In response to Hamdan, Congress passed the Military Commissions Act of 2006 in support of the administration's position.  [N.B.  Hamdan was subsequently tried by military commission under the MCA, found guilty of material support for terrorism, and sentenced to 66 months with credit for time served.  27 Dec 2008:  Hamdan was transferred to a Yemeni detention facility to serve the remaining seven months of his sentence, after which he was released to his family.]
•  "Enemy combatant" status determination (U.S. citizen captured outside U.S., detained within U.S. in navy brig).  Hamdi v. Bush  (542 U.S. 507 (2004)).  The U.S. Supreme Court ruled that a combatant with dual Saudi-U.S. citizenship, captured in Afghanistan and detained in the United States, was entitled to constitutional due process in the determination of his classification as an "enemy combatant."  The Court remanded for development of an appropriate procedure and fact finding under that procedure.  Hamdi was released by the U.S. government to his family in Saudi Arabia prior to implementation of the Court's decision, under a stipulated agreement between Hamdi and the U.S. government.

• Gov't obligation to produce its evidence about detainees: 1 Feb. 2008.  In Bismullah v. Gates  (06-1197), the D.C. Circuit Court of Appeals en banc upheld a three-judge appeals panel determination about what evidence of enemy combatant status the government must turn over to the reviewing federal court (and thus to defense counsel), in an appeal from CSRT determination of "enemy combatant" status.  The government had resisted turning over to the court all information about the appealing detainee's case, instead proffering only the evidence that had been presented to the military panel making the initial determination.  The court ruled that the government must present all information in its possession about the detainee. [17 Jan 2009:  Prior to a new G'Bay hearing to determine whether Bismullah was properly classified as an "enemy combatant," utilizing the new standard for production of evidence,  the government returned Bismullah to Afghanistan, where he was released, closing his case.]