Thursday morning, Judge Rosemary Collyer of the D.C. federal district court will hear argument on whether the government may be compelled to examine Guantanamo Bay detainee and alleged 9/11 conspirator Mohammed al-Qahtani to determine whether he is “eligible for direct repatriation.” Al-Qahtani, whom U.S. officials have acknowledged was tortured and who, according to his medical expert, suffers various psychological and physical ailments that cannot be treated while still held in custody in Guantanamo, requested in April that the government either repatriate him to Saudi Arabia to receive treatment or else set up a “Mixed Medical Commission” pursuant to the procedures outlined in Section 3-12 of the Army detention regulation. This regulation provides for medical examinations by three-person medical panels consisting of two members from a “neutral country” and one U.S. army medical officer, and implements various provisions of the Third Geneva Convention dealing with “enemy prisoner[s] of war.”
The government declined al-Qahtani’s request for either repatriation or examination by a medical commission in June, pointing to findings that continued detention was necessary to national security, disagreeing that al-Qahtani “cannot receive effective treatment for his current mental health conditions while he remains in [U.S.] custody,” and arguing, in any event, that al-Qahtani does not qualify as an “enemy prisoner of war” under the army regulation or the provisions of the Third Geneva Convention that it implements.
Al-Qahtani subsequently filed a motion to compel a medical commission examination. The case raises complicated issues regarding the scope of courts’ habeas jurisdiction and the rights of so-called “enemy combatants” who are not affiliated with a traditional state entity. The major points in both sides’ briefs are explained below.
Because 28 U.S.C. § 2241(e)(2) denies any court “jurisdiction to hear or consider any [non-habeas] action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien” held as an enemy combatant, the court may only exercise jurisdiction over al-Qahtani’s claim to the extent it sounds in habeas. (While Congress purported to also strip habeas jurisdiction through 28 U.S.C. § 2241(e)(1), the Supreme Court held that provision to be an unconstitutional violation of the suspension clause in Boumediene v. Bush).
Though medical examinations are not themselves traditional habeas relief, al-Qahtani argues that the power to compel them must come part-and-parcel with the court’s habeas jurisdiction. Because the legality of al-Qahtani’s detention and availability of habeas relief might turn on the results of a medical commission’s determination, the court must, al-Qahtani argues, have power to order such a determination in order to give meaning to its habeas jurisdiction. In support, al-Qahtani cites the All Writs Act , which empowers courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Al-Qahtani also argues that the court should issue a preliminary injunction compelling access to a medical commission pursuant to Federal Rule of Civil Procedure 65(a), claiming that the following equities weigh in its favor:—his high risk of irreparable harm, high likelihood of success on the merits, the slight injury the government would face as a result of forming the medical commission, and the “the public interest in justice and the rule of law.”
By contrast, the government argues that the court should deny al-Qahtani’s request for “extraordinary relief too far removed from habeas’ traditional remedy of release.” Al-Qahtani, according to the government, does not “seek an order of release or challenge his conditions of confinement”; rather, he “seeks an order compelling the United States to take a series of actions that only, in the end, may possibly result in his release.” Further, “such an order would also require the United States to, among other things, develop standards for determining the disabilities and sicknesses that would warrant repatriation in this noninternational armed conflict against al-Qaida, Taliban, and associated forces, which stretches habeas far beyond its traditional remedy of release.” Because the All Writs Act “does not enlarge the Court’s habeas jurisdiction or provide it with an independent basis for jurisdiction in the first instance,” it could not, according to the government, serve as the basis for sweeping such extraordinary remedies under habeas’ umbrella.
To support its narrower conception of habeas jurisdiction, the government cites language in the Supreme Court’s decision in Skinner v. United States suggesting that “when a prisoner’s claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’” as well as the D.C. Circuit’s interpretation of Skinner in Davis v. United States Sentencing Commission as “suggest[ing] that habeas might not even be available for ‘probabilistic’ claims.” The government further cites Nettles v. Grounds, a recent en banc Ninth Circuit decision, which held that “[b]ecause success on [the plaintiff's] claims would not necessarily lead to his immediate or earlier release from confinement, [his] claim does not fall within ‘the core of habeas corpus.’”
Finally, the government argues that even if al-Qahtani’s claim does sound in habeas, the court should still “refrain from exercising its habeas jurisdiction” because, as the Supreme Court noted in Munaf v. Geren, “habeas corpus is governed by equitable principles” and “prudential concerns.” Those concerns weigh against exercising jurisdiction because
an order requiring the Executive to take certain actions in conformance with asserted treaty obligations, as implemented through military regulation, and contrary to the Executive’s interpretation of how those obligations apply to Petitioner … would be inconsistent with the Executive’s interpretation of the relevant treaty and regulation provisions, and would place an extraordinary burden on the Executive.
The government also claims that because the relief al-Qahtani seeks would change the status quo by creating a new medical body, it “would go well beyond the scope of a preliminary injunction,” requiring the court to evaluate the request as one for a permanent injunction. And it argues that al-Qahtani cannot make the required showing of an irreparable injury, the inadequacy of other remedies, a favorable balance of hardships, and a lack of harm to the public interest.
Al-Qahtani criticized the government’s logic in his reply brief as leading to “an inelegant Catch-22,” that would, by analogy, “prevent this Court from ruling on a motion to compel access to a prisoner at Guantánamo filed by his lawyers” because a counsel’s access to his client, though “a predicate to seeking release in habeas,” does “not directly implicate release from custody or a change in conditions of confinement.” Al-Qahtani further urges that the government placed too much weight on one-off lines from Skinner and related cases, while not putting enough emphasis on more recent decisions from within the D.C. Circuit.
Specifically, al-Qahtani pointed to the D.C. Circuit’s decisions in Al Warafi v. Obama, where the court’s decision on habeas relief turned on an arguably similar question, namely whether the detainee qualified “as ‘medical personnel’ within the meaning of Article 24 of the First Geneva Convention and Section 3-15(b)(1)-(2) of the Army detention regulation.” He also cited the D.C. District Court’s decision in Aamer v. Obama, where the court denied a detainee’s request for repatriation. There the detainee had raised a similar medical claim under Section 3-12 of the Army regulation, and the court claimed that there was “no dispute that [it had] subject matter jurisdiction over” the action. However, Aamer had “not established his explicit entitlement to release under the Regulation,” because he had “neither [applied] for repatriation… nor requested an examination by a Mixed Medical Commission.” By contrast, al-Qahtani had.
Merits: Scope of the Conflict and Enemy Combatants vs. “Other Detainees”
If the court does exercise jurisdiction over al-Qahtani’s claim, it must then determine whether Section 3-12 actually entitles him to a medical commission examination. Tracking the petitioner’s earlier argument in Aamer, al-Qahtani argues that the regulation requires such commissions for enemy prisoners of war and, because he does not fall into any of the regulation’s explicit categories of prisoners, he should, according to a provision in the regulation’s glossary, be considered as an “other detainee” and “be treated as an enemy prisoner of war until a legal status is ascertained by a competent authority.” The fact that a 2004 Combatant Status Review Tribunal had designated al-Qahtani as an “enemy combatant,” like recent decisions of the Periodic Review Board, simply have “no relevance under AR 190-8.”
The government responds that the Army regulation cannot be interpreted in a vacuum but must rather be understood with respect to the provisions of the Third Geneva Convention it aims to implement. Indeed, the regulation embraces that principle in Section 1-1 where it stipulates that “the provisions of the Geneva Conventions take precedence” over any contrary regulations. The convention, in turn, offers “prisoner of war” protections to soldiers in a state army or certain other uniformed combatants. Al-Qahtani, by contrast, can only claim the lesser protections under Common Article 3 of the Geneva Conventions that, in “armed conflicts not of an international character,” detained persons “shall in all circumstances be treated humanely.”
Here, the government argues, the court should defer to President Bush’s 2002 determination that al-Qaeda fighters “do not qualify for prisoner of war status.” Al-Qahtani is therefore not entitled to the protections of many Geneva Convention provisions—or the army regulations implementing them. And because the Army regulation’s specifications regarding “other detainees” are made “[i]n accordance with Article 5 [of the Third Geneva Convention]” they should not apply to al-Qahtani. The D.C. Circuit’s arguably contrary approach in Al Warafi, where it applied certain provisions in the Army detention regulation dealing with medical personnel, should not govern this case as the “provisions at issue [there] concerned a fundamentally distinct category of persons” for whom release may have been a matter of entitlement, rather than a class of individuals whom the regulationmerely makes “eligible” for repatriation.
Further, the complexities of “establish[ing] procedures governing the operation of” any commissions established pursuant not just to the Army regulation but also the Geneva Convention’s requirements would raise “novel, complex, and difficult issues … likely to be the subject of additional litigation that [would] further entangle the Court.” Such entanglement might affect the “United States’ interests with regard to the Geneva Conventions and related laws and customs of armed conflict.”
Al-Qahtani argues, by contrast, that the Army regulation is binding domestic law that the court must apply independent of the Geneva Conventions. Section 1-1’s provision for the conventions’ primacy over contrary regulations should be understood to “enshrine a baseline” which the “United States remains at liberty to expand.” This principle is reflected in various provisions of the Defense Department’s “Law of War Manual” and in the Army regulation’s application to “persons held during military operations other than war.”
Al-Qahtani further argues that, even if certain of the regulation’s protections are limited to “international” conflicts, “there is no controlling authority finding that the conflict [in Afghanistan] was noninternational in nature.” Indeed, the D.C. Circuit’s willingness to apply the regulation in Al Warafi might suggest protections attaching to international conflicts applied.
Further, al-Qahtani argues, whatever the conflict in Afghanistan became over time, al-Qahtani “was allegedly taken into U.S. custody in December of 2001” when “the United States still characterized the conflict … as an international armed conflict.” Moreover, “irrespective of whether or how the conflict out of which Mr. al-Qahtani’s imprisonment arose is characterized,” at least Common Article 3 should apply—and that alone might “encompass the obligation to repatriate ill prisoners like Mr. al-Qahtani.”
Finally, al-Qahtani argues that, notwithstanding President Bush’s determination that al-Qaeda fighters should not receive prisoner-of-war protections, “it is not the
Executive’s province to say what the law is here.” Citing the Supreme Court’s independent determination of what the laws of war require in Hamdan v. Rumsfeld, as well as the court’s reservation regarding Hamdan’s “potential status as a prisoner of war” and Justice David Souter’s reference to the Army regulation’s requirements in his concurrence in Hamdi v. Rumfeld, al-Qahtani urges the court to make an independent determination of his status.
Al-Qahtani’s motion to compel implicates a complex set of issues regarding the scope of federal courts’ habeas jurisdiction and the application and incorporation of various international law protections to so-called enemy combatants. Judge Collyer has her work cut out for her.