Two Guantanamo detainees, Fahmi Al-Assani and Suleiman Al-Nahdi, have moved the D.C. Circuit to dismiss their habeas appeals (Al-Assani’s motion is here, Al-Nahdi’s is here). Both men lost their district court habeas cases in decisions by Judge Gladys Kessler; the Al Assani decision is here, the Al-Nahdi decision is here. Both men appealed, and today, both men have given up their appeals as lost causes.
Their lawyer, Richard Murphy, explained in an email,
Judge Kessler denied our clients’ habeas petitions and we appealed to the D.C. Circuit, but then stayed the appeals pending the outcome of several cases in which cert petitions had been filed. Once cert was denied in all of the relevant cases coming out of the D.C. Circuit it became clear that the appeals were futile. Under the detention standard that has been developed by the D.C. Circuit (which the Supreme Court has refused to review), it is clear that the courts provide no hope for the men remaining at Guantanamo.
This development strikes me as a big deal–albeit a quiet one that won’t get a lot of press attention. These two detainees did not, as did Toffiq al Bihani, seek summary affirmance at the D.C. Circuit because they acknowledged appeal at that stage to be futile and thus wanted to facilitate a cert petition. They gave up their appeals entirely–thus acknowledging not merely that the law as developed by the D.C. Circuit makes their cases “hopeless” but that there is insufficient prospect of getting that law altered from on high to even ask the Supreme Court to consider the matter. I think that reflects an altogether rational assessment of where things stand. While the press has focused on the habeas “scorecard” and reported that the government is losing lots of cases, the D.C. Circuit has quietly reoriented the law so fundamentally that detainees are not even pursuing their appeals to the end. It’s quite a change.