Detention: Law of: Supreme Court Development

Al Alwi: Cert Petition and Government Response Brief

By Raffaela Wakeman
Thursday, March 22, 2012, 2:55 PM

The government filed its opposition to cert in the case of Moath Hamza Ahmed Al Alwi--a Guantanamo habeas petitioner. Al Alwi filed a petition for a writ of certiorari back in December, though we missed it at the time. He sought to appeal the Circuit Court's affirmance of the D.C. District Court's denial of habeas corpus, and urged the Supreme Court to consider two questions:

  1. Whether a person held at the U.S. Naval Station at Guantánamo Bay, Cuba for nearly ten years had a “meaningful opportunity” to challenge his imprisonment within the meaning of Boumediene v. Bush when the lower courts gave his counsel only a few weeks to prepare for a habeas corpus hearing after the government presented its factual return, arbitrarily rejected his unopposed request for adequate time to prepare for the hearing, refused virtually all requests for discovery, applied an improper standard for detention, and relied solely on uncorroborated hearsay intelligence reports.
  2. Whether authority to imprison members of a force “associated with” the Taliban terminates when that associated force ceases hostilities.

Al Alwi argued that the lower courts did not provide him with a "meaningful opportunity" to challenge his detention and that the Court should determine how long the government is permitted to detain those it considers a member of an "associated force."

While arguing that he was not given a "meaningful opportunity" to challenge his detention, Al Alwi describes the response to one particular motion that was ultimately denied by U.S. District Court Judge Richard Leon:

The government did not oppose Mr. al-Alwi’s motion to extend the existing deadlines. Nevertheless, Judge Leon denied the motion in a minute order entered four days later. App. 51. During a subsequent hearing on discovery issues conducted on December 1, 2008, he explained that: “Mr. al-Alwi is the author of his own delay in this case. He is the one who chose to go on a hunger strike. No one else. No one else. He is the one who chose to engage in a protest action in Guantanamo. No one else.” App. 134. The court further explained that if counsel “weren’t able to meet with him because he chose to put himself in a position where he couldn’t effectively meet with you, that was his choice; and the Court is not going to prejudice the schedule that affects, reverberates on other detainees to delaying this case.”

The government unsurprisingly frames the relevant questions very differently:

    1. Whether the court of appeals correctly held that petitioner is detainable under the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, as “part of” the Taliban or al-Qaida, where petitioner’s own statements, which the district court found to be reliable, established that (1) petitioner traveled to Afghanistan for the purpose of joining the Taliban’s fight against the Northern Alliance; (2) he stayed in guesthouses closely associated with the Taliban or al-Qaida; (3) he attended a Taliban-related training camp, where he was issued a rifle, ammunition, and grenades; (4) he joined a combat unit in which he served under the leadership of a high-level al-Qaida member; (5) he participated in combat against the Northern Alliance on two fronts; and (6) he remained with his combat unit after the September 11, 2001 attacks and the start of Operation Enduring Freedom.
    2. Whether the district court abused its discretion in ruling on petitioner’s procedural motions.

It argues that the lower courts have "properly performed the task" given to them in Boumediene and that Al Alwi's arguments regarding the district court's factual findings and the Circuit Court's legal inferences based on those findings are lacking in merit.

We covered this case in depth when it was being heard by the Circuit Court (Ben wrongly predicted that Al Alwi would prevail, covered the oral arguments in depth,  and then was shocked when his crystal ball turned out to have a factory defect). Read the Circuit Court's opinion here, Judge Leon's district court opinion here, and an exchange between Thomas Joscelyn and Ramzi Kassem on the evidence in the case here, here, and here