New Government Responses to GTMO Cert. Petitions

Over the last week, the Department of Justice has been busy filing responses to several of the Guantánamo detainees’ cert. petitions: It has submitted four briefs to the Supreme Court in the span of just a few business days. Last week, the government filed its oppositions in Al Bihani v. Obama (No. 10-7814) as well as in Awad v. Obama (10-736).  Yesterday, its filings were in Khadr v. Obama (10-751) and Mohammed v. Obama (10-746).  The Mohammed filing remains under seal. Below are links to the government briefs as well as a quick look at how the government frames the questions presented in the cases: 1) Al-Bihani v. Obama

1. Whether the courts below correctly rejected petitioner’s argument that he must be released from military custody because the conflict in Afghanistan in which he was captured has ended.

2. Whether the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, permits the military detention of an individual who served in a combat unit that fought alongside the Taliban while it was harboring al-Qaida and fighting against the United States.

2) Awad v. Obama

1. Whether intelligence reports and other “hearsay” evidence commonly used by the military to justify the detention of individuals captured abroad during armed conflict is admissible in habeas corpus proceedings challenging the detention of foreign nationals at Guantanamo Bay, Cuba, when a court determines that such evidence is reliable when considered in context.

2. Whether a burden of proof higher than a preponderance of the evidence is constitutionally compelled in these unique habeas proceedings.

 

3) Khadr v. Obama

Whether a district court considering a habeas corpus petition may require the Executive to provide advance notice before releasing a detainee from military detention and sending him to a foreign country, where the Executive has submitted sworn declarations establishing that a detainee will neither be sent to any country where he is more likely than not to be tortured nor be detained at the behest of the United States.

 

4) Mohammed v. Obama (Document under seal. Questions presented are from the petition. We will post the government's response when it becomes public.)

1. Whether, in a habeas corpus action brought by an individual held in United States territory, including Guantánamo, (a) Munaf v. Geren, 553 U.S. 674 (2008), requires, and (b) Boumediene v. Bush, 553 U.S. 723 (2008), the Suspension Clause, and the Due Process Clause permit, the district court to give conclusive effect to the government’s assertion that the individual is unlikely to be tortured if transferred to a particular country, disabling the individual from challenging his transfer on the ground that he will likely be tortured there, and the court from fashioning an equitable remedy.