We noted Sunday that the Justice Department filed a letter in the force-feeding case Aamer v. Obama last week informing the D.C. Circuit that the four detainees are no longer designated hunger-strikers. On Monday petitioners filed a response rejecting the government's suggestion that the case is moot:
Respondents have a long history of seeking under the pressure of litigation to evade judicial review in Guantánamo detainee cases . . . . It is well settled, however, that the voluntary cessation of unlawful conduct does not moot a case in which the legality of the conduct is challenged, unless (1) there is no reasonable expectation that the conduct will recur, and (2) interim relief or events have eradicated the effects of the conduct.
The detainees point out that the removal of their designation as hunger-strikers is a development entirely of the government's own making---and timing. And there is more afoot with respect to the detainee whose designation was removed on Oct. 18, the day of oral argument:
The undersigned counsel have not succeeded in communicating with [Jihad] Dhiab since July 30, 2013, at which time he was still being force-fed. Thus, we have no knowledge of the “recent factual development” asserted in the Government’s letter. If this litigation were to be dismissed as moot, it should happen only after an evidentiary determination of the factual issues raised by the Government’s suggestion of mootness.
Petitioners note that in case the court should be inclined to declare the case moot, they will also be filing a motion by a currently hunger-striking Guantánamo detainee, Imad Abdullah Hassan, to intervene in the appeal no later than Nov. 4, 2013.