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The Salahi Saga Continues

Benjamin Wittes
Tuesday, December 22, 2015, 12:46 PM

You might remember Mohamedou Ould Salahi—Guantanamo detainee, author and memoirist, subject of a brutal interrogation, important source on Al Qaeda, and all around fascinating human puzzle.

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You might remember Mohamedou Ould Salahi—Guantanamo detainee, author and memoirist, subject of a brutal interrogation, important source on Al Qaeda, and all around fascinating human puzzle.

Salahi's case, however, is still kicking around the court system and on Friday actually produced an opinion, albeit not a merits opinion. Salahi had petitioned the district court back in June to force the government to give him a Periodic Review Board hearing:

Having unlawfully imprisoned Mr. Slahi for nearly thirteen years, the Department of Defense now compounds that illegality by violating its obligation to review whether his continuing detention at Guantánamo serves any purpose. More than four years ago, President Obama ordered the Secretary of Defense to implement a mandatory Periodic Review Board (“PRB”) process and hearing to determine whether detention pursuant to the 2001 Authorization for Use of Military Force (AUMF) continues to be justified for Mr. Slahi and prisoners like him. Even assuming the AUMF provided authorization for Mr. Slahi’s initial detention in 2002— which Mr. Slahi contests and which no court has held—the Defense Department has not afforded him a PRB process to determine whether his detention should continue. As Mr. Slahi and witnesses on his behalf will show once he receives a PRB hearing, Mr. Slahi presents no threat to the United States or any other country, and his continued detention is unjustified. Mr. Slahi has made clear in everything he has written, including his recently-published, best-selling book, Guantánamo Diary, that he harbors no animosity to anyone—including his interrogators and guards—as a result of his incarceration.

Mr. Slahi and his counsel have reason to believe that the Defense Department’s ongoing refusal to comply with the PRB requirements is aimed at prolonging Mr. Slahi’s detention for the purpose of interrogation—in violation of the AUMF, the Constitution, and international law. Even if that were not the motive, the Defense Department’s continuing failure to provide Mr. Slahi with a legally-required PRB hearing renders his detention independently unlawful.

Additionally, in recent months, the Defense Department impermissibly interfered with Mr. Slahi’s access to this Court by confiscating his legal papers for at least six months; counsel for Mr. Slahi have been unable to confirm with him that all legal papers have since been returned. Around the same time, it also arbitrarily deprived him of personal items that he had long been permitted to have in his cell and that are important to his mental and emotional well- being. These items include family photos, personalized gifts from former U.S. military prison guards who had become Mr. Slahi’s friends, and a computer given to Mr. Slahi by an interrogator. That computer did not have internet-connection capability; Mr. Slahi uses it to help keep his mind active and recover from the torture he suffered in U.S. custody. These actions are unjustified and violate Mr. Slahi’s rights to a meaningful habeas process and to freedom from unreasonable conditions of confinement.

As Mr. Slahi’s thirteenth year of detention without charge grinds on, the Defense Department’s failure to provide him with a PRB hearing and the new restrictions it has imposed on him have caused Mr. Slahi’s prolonged, indefinite, and unlawful detention to become even more unendurable.

The government responded the following month:

The Executive has already committed to provide Petitioner and other Guantanamo detainees with a PRB hearing. Petitioner, however, seeks a Court order requiring that his PRB hearing occur immediately because, he claims, the fact that he has not received a more prompt PRB hearing is a violation of the Executive Order establishing the PRB process, the Suspension and Due Process Clauses of the Constitution, the Authorization for Use of Military Force (AUMF), and international law. Among other things, he argues that the fact that he has not yet received a PRB hearing “bars [him] from receiving meaningful review of his continued detention.” Pet. Mot. at 11. But Petitioner confuses the meaningful review constitutionally available to him through habeas, as the Supreme Court held in Boumediene v. Bush, 553 U.S. 723 (2008), with the review for discretionary release based on threat-related considerations that the Executive is providing through PRBs. Notably, Respondents have sought to provide Petitioner with a prompt and meaningful review of his habeas case by seeking an expedited hearing on the merits of his case in October 2012, but Petitioner opposed such a hearing, and his habeas case has remained dormant, at his own choosing, for almost three years now.

Regardless, Petitioner’s claim of entitlement to a PRB hearing ahead of other detainees is baseless. As an initial matter, the Court does not have jurisdiction to issue such an order because the sequencing of an administrative review process that will not necessarily result in Petitioner’s release (it only may result in a more prompt determination of eligibility for transfer) does not sound in habeas, and this Court lacks jurisdiction over non-habeas claims. Even if this Court has jurisdiction, Petitioner’s claim is without legal merit: the Executive Order does not create any enforceable legal rights; it is binding precedent in this Circuit that the Due Process Clause does not apply to Guantanamo detainees; an alleged delay in receiving a PRB hearing is unrelated to his right to petition for habeas corpus, and therefore not a violation of the Suspension Clause; and neither the AUMF nor international law require a periodic review of individuals who, like Petitioner, are lawfully detained as part of enemy forces. At bottom, the relief Petitioner seeks— an order that the Executive provide him with a PRB hearing before other Guantanamo detainees—is also impractical. Petitioner’s argument for why he should receive an immediate PRB hearing is not unique to his circumstances, so every other Guantanamo detainee awaiting a PRB hearing could claim a similar right, and the Executive would still have to sequence hearings such that some detainees get them before others do.

With regard to Petitioner’s second claim, Respondents have not deprived Petitioner of any of his legal materials. In the fall of 2014, Respondents transferred Petitioner from one detention camp to another at Guantanamo. Like all detainees in his current place of detention, Petitioner is permitted to keep one bin of legal materials in his cell, while all other legal materials are kept in storage until Petitioner requests them. Thus, Petitioner (who is aware of this policy) continues to have access to all of his legal materials.

On Friday, Judge Royce Lamberth ruled in favor of the government that he had no jurisdiction to issue an order forcing the government hold a PRB hearing. He also ruled that he is largely satisfied that the government is not impeding Salahi's access to legal materials—though he did seek clarification on one point. And he ruled that he can't do anything about the deprivation of comfort items, because Salahi only alleged that this action deprived him of his Fifth Amendment due process rights, and the Fifth Amendment does not apply to detainees at Guantanamo.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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