Former Guantanamo Detainees Seek Relief After Transfer

An interesting new issue has landed at the D.C. Circuit: Whether courts retain habeas jurisdiction even after a detainee leaves U.S. custody. Last week, two former Guantánamo detainees filed their merits brief in a consolidated case before the appeals court. The detainees, Nazar Gul and Adel Hamad, ask the D.C. Circuit to reverse a decision from April of this year by Judge Thomas Hogan. Judge Hogan ruled that Gul, Hamad, and 103 other former Guantánamo detainees were not entitled to judicially ordered relief because their claims were moot--the detainees, who had been transferred or released to foreign countries, suffered injuries "totally dependent upon the actions of a non-party sovereign authority beyond the control of [the] Court." In this appeal, the petitioners essentially argue that because the U.S. government transferred them to Afghanistan and Sudan with the government’s “enemy combatant” designation intact, they have been subject to particular collateral consequences.  They ask the D.C. Circuit to find that these consequences entitle them to a merits hearing to determine their designation as enemy combatants was error and to order equitable remedies that would include “judicial exoneration from the enemy combatant designation and mitigation of the consequent stigmatization and restrictive conditions on their lives as citizens of the world, including travel, surveillance, potential reincarceration, and even extra-judicial killing.” The briefing in this appeal won’t be complete until nearly 2011, but the outcomes here will guide a number of similar appeals from Judge Hogan's April decision. Those appeals are now being held in abeyance.