As Ben Wittes notes over at Lawfare, last week Judge Royce Lamberth denied a motion by habeas petitioner Mohamedou Ould Slahi to require the Department of Defense to expedite his Periodic Review Board hearing.

I don’t think that ruling was much of a surprise. The President’s Executive Order 13567 requires PRB hearings for Guantánamo detainees not already cleared for release, to determine whether their continued detention is “warranted” — a determination that the President has decreed should turn on whether such detention is “necessary to protect against a significant threat to the security of the United States.” By its terms, however, the E.O. explains that the mandated PRB process “does not address the legality of any detainee’s law of war detention” — which depends on whether he was and remains a member of enemy forces, not on a showing of “significant threat”; and the E.O. expressly provides that it does not “create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”*

But just because Judge Lamberth cannot order DOD to expedite its PRB hearing of Slahi, that doesn’t mean he can’t address the merits of Slahi’s underlying habeas petition itself, in which the detainee challenges the legal basis for his detention on the ground that he was not part of al Qaeda forces when he was detained by Mauritanian authorities, and then the United States, in November 2001. As the President’s Executive Order explains: “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”

Yet Slahi’s habeas case has been lying dormant before Judge Lamberth for over three years. Why? And why, for that matter, have habeas adjudications come to a virtual halt among the judges in the District Court? There’s no way to know for certain. But in a recent hearing in the Slahi case, Judge Lamberth let slip a clue: It appears that the habeas judges might be under the impression that the GTMO detainees don’t want the courts to issue any rulings on their habeas petitions, one way or the other, because factual findings that courts might make in those rulings can have a detrimental impact on the willingness of other nations to accept them. If this is true, I think it’s an important and thus-far overlooked (and unfortunate) aspect of the dynamic between the habeas cases and the governments efforts to transfer detainees out of GTMO. More below the fold.

Some of you may recall that Judge James Robertson granted Slahi’s habeas petition back in 2010. The judge found that Slahi had been a part of al Qaeda back in 1991, and that he “was in touch with al-Qaida members” and provided them with “sporadic support” thereafter, but that the government had failed to prove that he remained part of al Qaeda forces as of November 2001, when he was detained. The government appealed, and the Court of Appeals for the D.C. Circuit vacated the judgment and remanded the case to the district court to determine, among other things, whether Slahi’s activities and associations “demonstrate[] that he remained a member of [al-Qaida], thus having no need to renew his oath [of loyalty to the organization] because he continued to abide by his original vow of allegiance,” and whether the Court can “infer from [Slahi’s] numerous ties to known al-Qaida operatives that he remained a trusted member” of al Qaeda.

At that point, the defendants provided more evidence to Slahi’s lawyers in discovery, and the case was reassigned to Judge Lamberth. Slahi moved for additional discovery. On Halloween, 2012, the government opposed Slahi’s discovery motion, and simultaneously moved for an “expedited” hearing on the merits of Slahi’s habeas case. That filing was not made public, however, and what happened next is murky. The docket shows that on November 14, 2012, Slahi filed a brief — also not on the public record — denominated an “Opposition” to the government’s merits motion and a “Reply” in support of his own motion for further discovery. On December 7, 2012, the government filed a reply brief — also under seal. The parties each filed certain documents “ex parte” — and each objected to the other’s ex parte filings.

And so, from the looks of things on the public docket, as of December 2012 Judge Lamberth could have either granted Slahi’s motion for further discovery, or denied that motion and ordered full briefing on the government’s motion on the merits of the habeas petition. But he didn’t rule one way or the other. And what followed has been three years of radio silence.

The parties’ recent briefs on the PRB motion offer some modest insight into what has happened to the habeas petition . . . but not much. According to the government, its motion for expedited judgment on the merits in late 2012 reportedly “set forth the factual basis for Petitioner’s detention as part of al-Qaida based on a relatively small number of exhibits in the record” — and specified that the government is not relying upon “any statements made by [Slahi] while in detention except for those provided under the advice of his counsel (e.g., his declarations and testimony).” In the initial habeas proceedings, the government did not introduce any statements Salahi made during the period from mid-June 2003 to September 2003, when he was subjected to what Judge Robertson called “extensive and severe mistreatment at Guantánamo,” but it did introduce statements that it claimed Slahi made “after the passage of enough time to attenuate any taint” and that were “corroborated by documentary evidence and the statements of other persons.” Judge Robertson considered these statements but did not accord them much weight. The government apparently is no longer relying upon those statements at all.

The government also requested that Judge Lamberth address Slahi’s request for additional discovery only with respect to materials “that pertained to the evidence underlying the [government’s] expedited judgment motion.”

For his part, Slahi apparently argued that the judge should not reach the merits of the habeas petition until after further discovery. It’s not clear whether Slahi also argued, in the alternative, that the government’s proffered evidence was insufficient to prove he was part of al Qaeda as of November 2001; his recent brief states that he “argued he could not meaningfully respond to Respondents’ evidence without the discovery he sought.” Slahi apparently also argued that the government should not be entitled to more than one hearing on the merits of the petition — that if and when Judge Lamberth determined that the government’s proffered evidence was insufficient to demonstrate Slahi was part of al Qaeda, that judgment ought to resolve the case and compel issuance of the writ.

The government’s recent brief concludes from all of this that “[f]or nearly three years, Petitioner has made no further effort to prosecute his habeas case,” and that Slahi’s “habeas case has remained dormant, at his own choosing, for almost three years now.” Slahi responds that this is not true — that “[b]oth parties’ briefing on these issues was complete on December 20, 2012,” and that “Mr. Slahi could do nothing else to ‘pursue’ his habeas case until the Court ruled on the pending motions.”

In other words, the government’s view appears to be that the ball is in Slahi’s court — and has been for over three years — whereas Slahi’s view is that the parties must await Judge Lamberth’s resolution of the 2012 motions. From all one can tell, Slahi appears to be right: The government offers no support for its position that Slahi is responsible for the delay — not, in any event, in its public filings.

For his part, Judge Lamberth offers no insight in his new opinion about what’s going on with the merits or discovery of the habeas petition: The opinion states that the D.C. Circuit remanded the case for further consideration in 2010, but says nothing about what’s happened since then.

This doesn’t make a whole lot of sense to any of us who aren’t privy to the sealed filings (some of which were filed ex parte). Why hasn’t Judge Lamberth resolved the 2012 motions? Why did Slahi ask the judge to order expedited consideration of his PRB hearing, but not file a motion asking the judge to expedite his own consideration of the motions pending before him, and to rule that Slahi is not a part of al Qaeda and therefore cannot be detained?**

The transcript of the hearing on the recent PRB-related motion, from November 24, offers a tantalizing clue about what might be happening. In that hearing, Slahi’s counsel, ACLU lawyer Hina Shamsi, reminded Judge Lamberth that the motions have been “pending before this Court” for several years. Judge Lamberth surprisingly then said that “I did not go back and read either the Court of Appeals opinion or see what happened after the remand [?!], but I take it that I could, on remand, address the merits of the question and then all of this wouldn’t matter.” “It’s true, you could,” replied Shamsi. Then Judge Lamberth offered some indication about why he hasn’t done anything with the three-year-old motions:

[I]t may be to the petitioner’s advantage, as I’ve seen in other cases, to not have the Court do that because that’s a final way that may be harmful to the petitioner’s interest in trying to get a transfer to another country if the Court makes certain findings.

In other words — or as I read his comment, anyway — Judge Lamberth might have been under the impression that habeas petitioners, including Slahi, no longer want judges to opine on the merits of their habeas petitions, because certain “findings” in the courts’ opinions, whether or not they rule for the petitioners, might prejudice the prospect of the detainees’ transfer to other nations.

Whether or not it’s true that other detainees are reluctant to have habeas courts issue rulings, however, Judge Lamberth appears to have misunderstood what Slahi wants. “Your Honor,” responded Shamsi, “those motions have been pending for three years now, so if and when we get a ruling on those motions — and we hope, obviously, that you’ll rule against the Government and allow for a full merits proceeding to go forward — then we think both the merits proceeding could go forward, [and] so could this Executive Branch [PRB] process. . . . We think [that,] for the same reasons that Judge Robertson ruled for us in 20[10], even under the Circuit Court’s new standard, we think and hope we will prevail. And we’re ready for that case to go forward.”

This exchange suggests that Slahi is eager for Judge Lamberth to reach the merits of his habeas petition — even if only after receiving further discovery that it has asked the court to order. Therefore — unless I’m missing something — Judge Lamberth ought to now consider and decide the motions that have been pending before him since December 2012.


* Slahi also argued that the 2001 AUMF requires timely, periodic threat assessments because, as the government concedes, “[p]rinciples derived from law-of-war rules governing international armed conflicts . . . must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.” According to Slahi, his detention “is closely analogous to security internment under the Fourth Geneva Convention,” and therefore “its review procedures inform the procedures he must receive under the AUMF.” Article 43 of the Fourth Convention provides that civilians subjected to security internment “shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board,” and if internment is maintained, “the court or administrative board shall periodically, and at least twice yearly,” reconsider it.

Judge Lamberth ruled that he did not have jurisdiction to reach this argument. For what it’s worth, however, I don’t think the Fourth Geneva Convention is an appropriate analogy in a case such as Slahi’s. GCIV would be relevant if the government were detaining Slahi in a civilian capacity — for example, for having provided substantial support to al Qaeda. But the government argues, instead, that Slahi is detainable because he is a part of al Qaeda forces. Traditionally, such enemy forces could be, and have been, held for the duration of hostilities because of their role as a part of enemy forces, who can be directed at any time to engage in hostilities. Detention of such forces because they are assets of the enemy is such a “fundamental and accepted . . . incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use” (Hamdi). Of course, as I explain in the rest of this post, there remains a question whether Slahi is, in fact, a part of AQ forces — the question that for some reason Judge Lamberth has not yet addressed in the context of Slahi’s underlying habeas petition. But if the court determines that Slahi is part of al Qaeda forces, then the periodic review for “substantial threat” assessment would be required only by the Executive Order, not by the AUMF.

** At a minimum, is it possible that more of the 2012 filings can now be made public, so that we can get a better sense of what is going on? After all, the government permitted Slahi himself to publish his diary, which extensively describes his treatment at GTMO and at other locations under U.S. custody, and it appears that the GTMO detainees are now (or ought to be) generally free to describe their treatment under U.S. custody.