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Oral Argument Recap: Abdullah v. Obama

Wells Bennett
Tuesday, January 21, 2014, 2:42 PM
The long-running habeas case of

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The long-running habeas case of Abdullah v. Obama should have seen a hearing on the merits a long time ago.  But it hasn’t, and that is really bad.  Nevertheless, the detainee’s attempt to eke out some sort of non-habeas relief in the meantime---a preliminary injunction which the district court rejected---apparently isn’t going anywhere on appeal.  Or at least it doesn’t seem to be, gauging by questions put to detainee and government counsel by a three-judge panel, during this morning’s largely uneventful, roughly twenty-minute argument before the D.C. Circuit.  (Oral argument audio can be found here.)


The detainee’s attorney is Stephen Truitt.  He rises and explains that his Yemeni client sought preliminary relief, in reliance on a 1946 executive agreement between Yemen and the United States.  (This said that each party would treat the other's nationals in accordance with international law; Truitt’s claim is that Abdullah’s detention by the United States is contrary to international law, including, among other things, the third Geneva Convention (“GCIII”).)   Senior Judge Stephen Williams squints.  He says he doesn’t see a means for affording relief here, in piecemeal fashion; why not simply await resolution by the habeas court?  The lawyer doesn't want to wait for a habeas-only remedy, for obvious reasons.  He rejoins that injunctive relief can be awarded under these circumstances, much as it was in Hamdan.  There, the habeas court fashioned an interim remedy, regarding the petitioner’s military trial, but pointedly without resolving his larger bid for release from law of war detention.  There’s a similar division of claims in this appeal, according to Truitt; his client desires not only to get out of Guantanamo, but also to be treated in accordance with various GCIII provisions---ones that Guantanamo officials have flouted. Now the separation of powers gets a nod.  The Yemen agreement conditioned the United States’ recognition of Yemen on mutual treatment according to international law.  And that presidential judgment cannot, under the Court of Appeals’ decision in Zivotovsky, be undone by congressional enactments like the Military Commissions Act of 2006 (“MCA”).  When asked by Senior Judge Raymond Randolph, Truitt explains that, contrary to the Yemen agreement, the MCA proclaims that GCIII cannot be a rule of decision in Guantanamo detention cases.  That’s important, given that several of the treaty’s provisions have been violated at Guanatanamo, vis a vis Truitt’s client: among other things, GCIII itself is not made available to Abdullah, as it must be according to the text; and his client also has not been given a prisoner representative, as he should have been.  Randolph puzzles over whether Truitt can even advance this argument to begin with.  After all, it goes to conditions of confinement---which are also off-limits after the MCA.  The pending force-feeding litigation, and the D.C. Circuit’s Wilson case, together suggest the contrary to Truitt, that the conditions issue is very much an open one.  In any event, Truitt goes on, Zivotovsky precludes Congress from tinkering with the President’s recognition power, as exercised with respect to Yemen and its nationals.  Williams interjects and returns to his earlier query: aren’t we just addressing a part of this case?  And if so, then isn’t all-resolving habeas your proper remedy?  This prompts Truitt to return to his own interlocutory-is-okay theme.  Then he sits and reserves whatever time remains. The government’s lawyer, Sharon Swingle, aims her opening straight at Williams.  Every issue here, she says, can and should be addressed with a habeas remedy, not by means of a preliminary injunction.  And putting even that to one side, Abdullah hasn’t made any showing of why he is entitled to preliminary relief---which is subject to a high legal standard.  For his part, Williams seems troubled about the current procedural posture; he asks why the habeas case hasn’t moved forward at all, despite its initiation years ago and the detainee’s motion for a hearing.  The lawyer has no answer, really; she cites various, now years-old filings by the government and the detainee, but eventually tells the judge that the status below is unclear.  That ambiguity makes room for Senior Judge Randolph to ask whether a detainee can ever seek a preliminary injunction like this one in the habeas context; Swingle insists that a detainee cannot.  Sure, Abdullah thinks Hamdan demonstrates otherwise; but in that case, the government had violated a pre-existing injunction, which the detainee afterwards sought to enforce in the context of his habeas petition.  Said differently, there was no gun-jumping preliminary relief in play, like that sought by Truitt.  While pre-adjudication release is theoretically available to habeas petitioners, argues Swingle, Abdullah hasn’t made any effort to demonstrate his entitlement to that. The United States’ presentation then shifts gears.  Randolph and Judge Karen Williams both ask what the end of hostilities might look like; Swingle tells both that this issue still lies a good ways down the road, and isn’t presented in Abdullah’s case at all.  Williams wants to know what Swingle would make of Abdullah’s argument, to the extent it challenges the conditions of confinement.  Well, such an argument wasn’t advanced below and has been forfeited, she responds, and all of the detainee’s other arguments don’t provide bases for relief, either---notwithstanding the fact that the habeas petition has “languished,” as Senior Judge Williams characterizes it. Randolph winds up the government lawyer’s questioning with some stray inquiries about D.C. Circuit detention law.  Was Abdullah wearing a uniform at the time of capture---a key issue for Geneva purposes?  (Swingle doesn’t recall, but Abdullah’s treaty arguments don’t warrant relief in any event, in Swingle’s view.) Do Army regulations cited by Abdullah apply to a Naval station, like that located at Guantanamo?  (Swingle has no position on this odd little question.  As an aside, she notes Al-Warafi, where the court referred to military regulations, in the course of denying relief to a detainee.) Truitt has one minute of time remaining. During it, he first says the delayed proceedings below are the court’s fault, not his client’s.  He cites a key district court docket item, #293; it reflects a minute entry, which essentially put the case on pause pending resolution of government filings that … still haven’t been resolved, despite the passage of years.  The district court, complains Truitt, “has a terminal case of doing nothing.”  The tale doesn’t interest Randolph, who presses further about Abdullah’s capture.  Wasn’t there a shootout then?  And Abdullah wasn’t wearing a uniform, right?  Truitt explains there was indeed a shootout---only one that took place near his client and did not involve him.  And no, Abdullah wasn’t wearing a uniform at the time; the descent of military personnel into his home, it turns out, roused him from a sound sleep.  Sensing a flaw in the detainee’s position, Randolph suggests that the D.C. Circuit’s Al-Odah opinion, which conditioned GCIII’s application on the wearing of a uniform, may foreclose Abdullah's case.  Truitt returns serve, noting that the Supreme Court’s ruling in Hamdan later made clear GCIII’s relevance for detainees, at least for the time being; and also underscored the availability of interlocutory relief in a detention case.  The lawyer lastly responds to a query from Williams, who wonders if Truitt indeed has failed to preserve, on appeal, what is essentially a conditions of confinement challenge.  The lawyer hotly disputes this, noting the litany of legal arguments he has set forth, both here and below, regarding his client’s unlawful treatment by the government.  How could that not protect against forfeiture?  Truitt concludes.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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