Civil Liberties and Constitutional Rights

Abdullah Files His Reply-Brief Before the D.C. Circuit

By Sean Mirski
Monday, December 30, 2013, 12:17 PM

As Raffaela previously noted, the case of Abdullah v. Obama is an exercise in "heel dragging and losing arguments." A brief refresher on the case: the legal saga started when Guantanamo detainee Hani Saleh Rashid Abdullah filed a habeas petition. The petition went unanswered. Accordingly, Abdullah switched tactics and instead moved for a preliminary injunction against his indefinite detention. This request also went unanswered. Abdullah eventually tired of waiting and petitioned the D.C. Circuit for a writ of mandamus; the District Court finally responded to Abdullah's second request--for the preliminary injunction--by rejecting it. In response, Abdullah appealed the decision to the D.C. Circuit, and earlier this year, we examined the appellant and appellee briefs in his case. Now we turn our attention to his Nov. 21 reply brief, which---much like his original appellant brief---seems long on rhetoric but short on winning arguments.

In his reply-brief, Abdullah doubles down on the central argument of his original brief:

In Zivotofsky, this court applied a long line of Supreme Court authority and executive practice to strike down a Congressional provision intruding on the President's exclusive power to recognize foreign sovereigns and, incident thereto, to make agreements nullifying inconsistent later legislation. Application of that ruling here requires, in relation to citizens of Yemen, invalidating those provisions of the Military Commissions Act of 2006 ("MCA") which would limit or cut back on the provisions of both the law of war (including the Geneva Conventions) and international humanitarian law to Yemenis imprisoned at Guantanamo.

Abdullah does not explain how IHL apparently differs from the laws of war.

The petitioner then dispenses with the government's objection that Zivotofsky did not involve a "jurisdictional" provision. In the first instance, Abdullah claims, Zivotofsky did not specifically mention such a distinction, so the government's "belief is refuted by the plain words of Zivotofsky." In any case, the petitioner points to the case of United States v. Klein (1871), a case involving President Lincoln's pardon power and a congressional deprivation of jurisdiction. Klein purportedly establishes that "[w]here Congress intrudes on an exclusive Presidential power, its action fails, regardless of the power under which it acts."

Abdullah then moves on to clarify that he does not challenge the government's power to detain under the law of war, but rather, "the power asserted under the [AUMF] to hold Abdullah forever, notwithstanding the state of 'hostilities' and at the pleasure of his captors." [Parenthetically, Abdullah cites Professor Harold Koh's post over at Just Security in support of this argument.] Although it is not exactly clear from the brief how the U.S. government has asserted the authority to detain him beyond the cessation of hostilities, Abdullah nevertheless marches ahead to additionally clarify that his "hypothesized 'return to the fight' is no more a basis for detention than the likely recidivism of a federal prisoner who has served his term."

In doing so, Abdullah seems to mistakenly conflate two different powers: the authority to detain and the authority to prosecute. While these authorities are closely linked in domestic law (the authority to detain is generally considered ancillary to a conviction), the two authorities are independent of each other under the laws of war, which permit the detention of combatants solely on the basis of their status.

Next, the petitioner dispenses in rapid-fire with a number of governmental objections by relying on HamdanBoumedienne, and the text of the Yemen Agreement. Throughout this portion of the reply-brief, Abdullah primarily takes aim at the idea that Guantanamo is "a law-free zone," including through a historical examination of attempts to "outrun the writ"--including a brief recount of the Earl of Clarendon's imprisonment of prisoners in the Channel Islands in the mid-17th century.

Perhaps in response to the government's brief, petitioner finally turns his attention to the factors that decide whether he is entitled to an interlocutory injunction. Although he first notes that "the usual interlocutory injunction test does not apply where the Agreement itself has effectively specified that the balance of harm, public interest and convenience is itself embodied in the prescription of international law," Abdullah nevertheless points out that he satisfies the four factors. First, as demonstrated by the majority of his brief, Abdullah has a high probability of success on the merits. Second, Abdullah claims an irreparable injury: "he is being held 'without end'" under unlawful conditions. Third, the petitioner also establishes that the balance of hardships favors him because if the injunction is granted, "Abdullah will remain at Guantanamo" and "the situation 'on the ground' will remain the same. What will be prohibited is Respondents' continuing to hold him, as they claim the right to do, after the 'forever war' is over." Finally, Abdullah concludes that the public interest in ending illegal behavior and upholding the laws is sufficient to meet the last factor.

Oral argument in the case is set for January 21 before Circuit Judge Karen LeCraft Henderson and Senior Circuit Judges Stephen F. Williams and A. Raymond Randolph.