Detention & Guantanamo

Post-Argument Letter from the Government in Suleiman v. Obama

By Wells Bennett
Sunday, September 25, 2011, 2:14 PM

An update on the Suleiman case: on Friday, the government filed this letter, which sought to clarify the government's views of three issues that were raised at oral argument on September 16.

First and most significant, attorneys Robert Loeb and John Drennan discuss the legal effect of a hypothetical peace deal with the Taliban. They explain that, under the laws of war, detention must end within a reasonable time after the cessation of hostilities. Conclusion of a peace accord thus "would be highly relevant" to the question of whether the government may continue to hold a person, whose detention was founded initially upon Taliban affiliation alone.  The lawyers nevertheless point out that in Suleiman's case, there was evidence of the petitioner's Taliban membership, and evidence of his membership in Al-Qaeda - but that the District Court did not consider the latter in denying his petition for a writ of habeas corpus.  "Thus," the letter says, "in the case of a final cessation of all hostilities with Taliban forces, there would be additional factual issues remaining that would be relevant to petitioner’s detention."

Next the letter responds to an inquiry regarding a hypothetical, one-hour stay at a terrorist-affiliated guesthouse.  Drennan and Loeb say that this "fact would be relevant, but certainly not determinative [with respect to whether a person may be detained] and that all the evidence in a case is to be considered in its totality."

The letter's final part concerns the audio of Suleiman's CSRT testimony.  Here the government acknowledges its duty to turn over "any material of which counsel is aware that may tend materially to undermine any information presented to support the government’s justification for detaining petitioner."  However, Drennan and Loeb also go on to explain that, because the government did not plan to use the audio in its case-in-chief, and because Suleiman's counsel did not request the recording until after the close of discovery, "government trial counsel never reviewed the recording during the course of trial preparations."  In conclusion, the lawyers once more assert that Suleiman was not prejudiced by any non-disclosure, as Suleiman ultimately was able to obtain the audio by means of a Freedom of Information Act ("FOIA") request.