Detention: Law of: D.C. Circuit Development

Al-Madhwani Cert Petition

By Ritika Singh
Thursday, October 27, 2011, 9:24 PM

Musa'ab Omar Al-Madhwani, a Guantanamo habeas petitioner, has filed a cert petition seeking review of the DC Circuit opinion affirming his detention. That opinion, in turn, affirmed District Judge Thomas Hogan’s earlier opinion.

The petition presents the following questions:

  1. Whether the Court of Appeals' expansive detention standard, approving detention based on peripheral association with others now suspected of being associated with al Qaeda or on mere presence at a guesthouse or training camp, is inconsistent with this Court's rulings on the permissible scope of executive detention under the Authorization for the Use of Military Force.
  2. Whether the Court of Appeals' denial of due process protections to Guantánamo Bay detainees is inconsistent with the law and this Court's decision in Boumediene v. Bush.

The Statement of the Case reads as follows:

Musa'ab Al-Madhwani is a Yemeni national who has been imprisoned at the U.S. Naval Station in Guantánamo Bay, Cuba for virtually his entire adult life. An easy-going teenager, unable to find work, Al-Madhwani was lured to Afghanistan by strangers in a coffee shop with the promise of a month-long adventure. Al-Madhwani is a peaceful man who had secured a waiver to avoid mandatory military service in the Yemeni army, but who, upon his arrival in Afghanistan, was forced to attend a military training camp for approximately three weeks after his passport and travel documents were confiscated. Al-Madhwani was finally allowed to leave when the camp was closed after the events of September 11, 2001. Al-Madhwani travelled for the next year as a refugee, leaving Mghanistan, trying to return home to Yemen. In September 2002, he was captured by Pakistani police, who tortured him into making false confessions. Al-Madhwani was transferred to the custody of the United States, which sent him to the Dark Prison, where he was brutally tortured by or under the command of American forces. He was then shipped to the Bagram prison, where he was further tortured at the hands of American agents. Ultimately, he was taken to Guantánamo Bay, Cuba, where he continued to be subjected to harsh and coercive treatment, all according to the findings of the district court, which findings remained undisturbed on appeal. Although the district court found that he was not dangerous or a threat to the United States, it nevertheless decried that its "hands (were) tied," App. 106, and held that Al-Madhwani may be imprisoned indefinitely, possibly for the rest of his life. Two more years have now passed.

1. District Court Proceedings

A. The District Court Determined That Al-Madhwani Is Not A Threat To The United States, And Questioned Whether There Is Any Basis For His Continued Detention

The district court found that Al-Madhwani is not a threat to the United States and suggested the government release him. App. 25-27, 68-69, 92, 115. Repeatedly questioning whether there is any real basis for his continued detention, the court found that Al-Madhwani's record, including the government's own documents, "do(es) not give any basis for his continued detention" but instead shows he is "a lot less threatening" than scores of detainees the government had recently released. App. 27, 69, 115.

The court noted the lack of any evidence that Al-Madhwani completed any weapons training, "fired a gun in battle or was on the front lines, or participated, planned, or knew of terrorist plots," or fought, undertook, or planned any attack or operation on behalf of al Qaeda or the Taliban. App. 27, 68-69, 115. The court agreed with an official government agent's own assessment of Al-Madhwani (reflected in documents presented to the district court) as a young, naive, unemployed Yemeni, "at best ... the lowest level Al Qaeda member," who should be returned home. App. 68-69, 90-92, 115. For all of these reasons, the district court "suggested that their basis for continuing to hold him is questionable." App. 92.

Despite these explicit findings, the district court believed its "hands (were) tied" by the "law as written," which it interpreted as requiring it to approve Al-Madhwani's continued detention. App. 29, 106. Calling it a "very close case," the district court emphasized that its ruling on the legality of AI-Madhwani's detention did not mean that the government should continue to detain Al-Madhwani. App. 26- 27. But the court's admonition fell on deaf ears, and AI-Madhwani is now in his tenth year of imprisonment.

B. The District Court Concluded that Al-Madhwani Was Tortured Into Making Many False Confessions

Upon being captured and imprisoned in the Karachi jail, at the Dark Prison, at the Bagram prison, and ultimately at Guantánamo Bay, Al-Madhwani was brutally tortured by American agents. The trial court credited all of AI-Madhwani's testimony in this regard: "I found his testimony with respect to the condition(s) of confinement to be credible, and it was not contradicted by any (evidence) in the record." App.77.

The court concluded that the U.S. orchestrated torture inflicted upon Al-Madhwani in Mghanistan and in Pakistan. App. 37. Guantánamo interrogators had access to and relied upon the false confessions wrung from AI-Madhwani in Afghanistan to cause him to continue to make identical and similar confessions at Guantánamo, and Al-Madhwani was gripped by the same fear and terror during the Guantánamo interrogations that he experienced in Mghanistan. App. 38, 45. The court determined that, from Al-Madhwani's perspective, the interrogators and the custodians did not change in any material way from Mghanistan to Guantánamo, and specifically found that the government contradicted none of AI-Madhwani's testimony regarding tortured confessions. App. 38-39, 77-78.

C. The District Court Denied the Petition for Writ of Habeas Corpus

Notwithstanding the fact that the district court threw out the vast majority of the evidence offered by the government, and despite the fact that the court complained that it was therefore presented with only a "severely truncated body of evidence" upon which to base its determination, App. 51, the court denied the writ.

2. Court of Appeals Proceedings

The Court of Appeals affirmed the district court's denial of the writ, concluding that AI-Madhwani was "part of" al Qaeda when he was captured, and rejecting Al-Madhwani's legal arguments.