Court of Appeals Dismisses Basardh

By Larkin Reynolds
Tuesday, December 14, 2010, 4:28 PM

Today the D.C. Circuit released, in redacted form, its November order dismissing the government's appeal in Basardh v. Gates.  The brief order contains no reasoning.  Basardh was a government appeal from Judge Ellen Huvelle's March 2009 final judgment and April 2009 opinion granting Basardh's habeas petition.

Judge Huvelle's decision was based in part on her finding that Basardh no longer posed a threat to the United States and was, therefore, entitled to the writ.  In the concluding pages she wrote:

[T]he Court must also consider the most current evidence relating to whether a detainee is no longer a threat. And, when this evidence is factored into the assessment of the legality of Basardh's detention, it inexorably follows that the requested relief is warranted, for Basardh  can no longer constitute a threat to the United States. . . . Given the widespread public disclosure [TEXT REDACTED IN ORIGINAL] any prospect of his rejoining those entities defined in the AUMF is, at best, a remote possibility. The government does not--and cannot--contest this.

The "public disclosure" she speaks of includes a Washington Post story that publicly revealed Basardh's cooperation with the U.S. government, identified him by name, and was published in his home country of Yemen.  The D.C. Circuit later rejected the rationale Judge Huvelle used in her opinion in a different appeal, Awad, where it ruled that "the United States's authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities."  But Judge Huvelle's judgment, it seems, will stand.

Taking this disposition into account, the numbers look like this:

  • Uighur cases in which detention was deemed or conceded unlawful: 17
  • Petitioners’ district-court wins pending at D.C. Circuit: 6
  • Petitioners’ district-court wins not appealed by the government: 12
  • Petitioners’ appellate-court wins resulting in a remand to district court, with remand still pending: 1
  • Petitioners’ merits wins at D.C. Circuit: 0
  • Petitioner’s district-court wins in which the D.C. Circuit dismissed the appeal: 1
  • Government’s district-court wins pending at D.C. Circuit: 12
  • Government’s district-court wins that will likely be appealed: 1
  • Government’s appellate-court wins resulting in a remand to district court, with remand still pending: 1
  • Government’s merits wins at D.C. Circuit: 5
  • Government’s district-court wins in which the D.C. Circuit dismissed the appeal as moot: 1
  • Post-Boumediene merits decisions in which cert. has been granted or denied: 0