Detention & Guantanamo

Summary: Qassim Filings on Habeas Claim

By Russell Spivak
Tuesday, March 20, 2018, 11:00 AM

Khalid Ahmed Qassim, a Guantanamo Bay detainee from Yemen who made international headlines by writing in the Guardian about his hunger strike protesting his treatment, submitted multiple filings to the U.S. District Court for the District of Columbia on Feb. 22: a Joint Status Report (alongside the Department of Justice), a motion in limine, and a prehearing brief. This post will summarize each of these three filings.

Background

Per his brief, Khalid Qassim “is in his 16th year of detention at the Guantánamo Bay prison camp. He has never been charged with any crime and is being detained without legal or factual justification. Moreover, Qassim has been denied any adequate means to contest his detention in our courts.” Qassim filed a habeas petition in the D.C. district court over a decade ago; the government filed a factual return in 2004, thereafter amended in 2008. Qassim agreed to stay the action in December 2008.

On Nov. 15, 2017, the D.C. district court held a hearing in which it granted Qassim’s oral motion to lift the stay. Qassim and the government agreed to a preliminary trial schedule; both parties then filed a document entitled “Joint Factual Stipulations Governing Adjudication of Petition for Writ of Habeas Corpus” with the court on Feb. 21. This brings us to Qassim’s three filings.

Joint Status Report

In the first of the three filings, the Department of Justice and Qassim filed a joint status report (JSR) on Feb. 13 “to update the Court on recent developments in this case since the Court held a status conference on December 20, 2017.”

The JSR notes that the parties “reached an agreement on the terms of a joint stipulation that will enable the Court to adjudicate the petition for writ of habeas corpus on the basis of the parties’ agreed-upon factual stipulations without the need for a contested merits hearing.” Thus, the parties felt that the Feb. 28 hearing should be conducted orally and without the presentation of witnesses, including Qassim, who would not be present by video teleconference. That hearing has since been rescheduled for April 10.

Lastly, the parties agreed to deadlines for: Qassim’s motion in limine; the government’s opposition thereto; Qassim’s pre-hearing brief; the government’s pre-hearing brief; and any joint stipulation.

Qassim’s Motion in Limine

Qassim argues in his motion in limine that the court’s opinion should not rely on:

  • The proposition “that ‘the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States’”;
  • “[A]ny evidence obtained through coercion, and without denying Qassim access to information necessary to assess whether evidence was obtained through coercion and present an argument for its exclusion”;
  • “[A]ny evidence (i) that was not provided in advance and in writing to Qassim, (ii) that was not accompanied by the full disclosure of all information ... or (iii) as to which Qassim had no opportunity to confront and to rebut by testifying and by presenting witnesses and documentary evidence”;
  • “[H]earsay evidence absent a threshold showing that it is the most reliable evidence available”;
  • [C]iting the D.C. Circuit’s opinion in Latif v. Obama, “any presumption that the terms or contents of a document upon which the government relies are accurate”; or
  • “[A]ny presumption that a document upon which the government relies accurately reflects the information received by military or government authorities from their non-governmental sources.”

Having articulated these premises, the motion then argues its legal grounds, namely that the motion does not endeavor to “resolve factual disputes or [to be used as] as a vehicle for a party to ask the court to weigh the sufficiency of the evidence.” Rather, relying on the D.C. district court’s Graves v. District of Columbia opinion, Qassim’s motion in limine properly “submits that the government should be precluded from relying on [certain] premises and categories of evidence” that he feels are inapposite, incorrect, or illegal.

Thereafter, Qassim argues that “[e]ach of the rulings that Qassim requests in this motion rests on the Due Process Clause,” and should thus be granted. Qassim asserts that the D.C. Circuit’s holding in Kiyemba v. Obama (Kiyemba I) that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States” does not apply to him because he was brought to Guantanamo Bay involuntarily. Rather, Qassim argues he is entitled to due process protections under Boumediene v. Bush, in which the Supreme Court ruled that “detainees who were brought [to Guantanamo Bay] involuntarily were entitled under the Constitution to seek habeas corpus relief because ‘[i]n every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.’” Moreover, Qassim asserts that the “Court also made clear in Boumediene that the habeas relief to which the Guantánamo detainees are entitled must be ‘constitutionally adequate.’”

Without articulating every protection that due process ought to provide to detainees, Qassim argues that “[a]t the very least, Guantanamo detainees such as Qassim should be granted the roster of procedural protections which Morris[s]ey v. Brewer and Gagnon v. Scarpelli, give[] to persons charged with probation or parole violations.”

Quoting Morrissey, Qassim claims he is therefore “entitled to ‘(a) written notice of the claimed [allegations]; (b) disclosure ... of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’” And citing Chavez v. Martinez, Qassim claims that “the Due Process Clause prohibits the

government from using evidence obtained from Qassim by coercive measures to support his detention.” So, too, does he argue that it “prohibits the government from denying Qassim the informational tools necessary to determine if coercive measures were used.” Lastly, Qassim concedes that the Supreme Court did not hold in Hamdi v. Rumsfeld that “the Due Process Clause would ... be offended by allowing the government to use hearsay evidence given the exigencies of an ongoing military conflict[.]” On the other hand, Qassim asserts, nor did Hamdi grant the government “carte blanche to rely on hearsay as a matter of course.” As such, “[t]he government should be required to make a good faith showing, by declaration or otherwise, that hearsay is the most reliable evidence available.”

Qassim’s Prehearing Brief

Qassim’s prehearing brief argues that “[a]lthough the Guantánamo detainees may have a procedural right to a habeas corpus hearing, [D.C. Circuit] panel decisions held that, they have no substantive right to Due Process of Law, and that presumptions may be established against them in favor of the government’s evidence.” As such, Qassim believes that the “Court should disregard those decisions and grant petitioner the right to Due Process of Law and to a meaningful opportunity to contest his detention and obtain release, which is his only effective remedy.”

The brief then dives into Qassim’s procedural history, described above, and “four major decisions that each, and together as a whole, eviscerate any such ‘meaningful opportunity’” for Guantanamo Bay detainees to challenge their detention, as required under Boumediene:

  • Kiyemba I, which “held that although the Guantánamo detainees may have the constitutional right to habeas corpus, because they are aliens ‘without property or presence in the sovereign territory of the United States,’ they have no constitutionally protected right to due process of law.”
  • Al-Bihani v. Obama, which “ruled that the detainees are entitled to even less process in their habeas proceedings than convicted felons seeking to attack their prior convictions after trial in civilian courts.”
  • Al-Adahi v. Obama, which “adopted a ‘conditional probability analysis’ and held that items of evidence presented by the government, even if unreliable when viewed individually, must be viewed cumulatively and considered probative as a whole.”
  • And Latif v. Obama, which held “that government intelligence reports on the detainees, even if prepared in the fog of war, pursuant to a secret process, filtered through interpreters of unknown abilities, and/or subject to transcription errors are entitled to a ‘presumption of regularity,’ wherein it is presumed that the report ‘accurately identified the source and accurately summarized [the] statement[.]’”

“Taken together,” Qassim claims, “these decisions have established a legal regime that precludes [him], and all similarly situated Guantánamo detainees from obtaining habeas relief.”

Thereafter, Qassim begins his argument. First, he reprises his argument from his motion in limine to assert that “Guantánamo [d]etainees [a]re [e]ntitled to Due Process.” Relying heavily on Justice Sandra Day O’Connor’s plurality opinion in Hamdi v. Rumsfeld, Qassim states that, regardless of nationality “[h]abeas proceedings in federal court must be conducted in accordance with due process of law.”

Qassim furthers his point by arguing, “without due process, [he]—and others like him—is stripped of the evidentiary and procedural protections that are necessary to the functioning of the writ.” In light of the aforementioned D.C. Circuit decisions, the detainee asserts that he:

who has never had [a]n opportunity to challenge the factual basis for his detention before a judicial tribunal, is given even less process than that routinely granted to even those who have already had an opportunity to contest the allegations against them at a full and open trial and are subsequently adjudged guilty by a neutral magistrate or a jury of their peers ... Instead, Qassim must rely on the discretion of the Executive Branch to access information and must make his case under the weight of a presumption that the government documents setting forth the evidence against him have done so accurately all the while being denied access to information necessary to challenge and overcome this presumption.

Qassim then marshals statistics to buttress his point:

After Boumediene, but before entry of those panel decisions, the D.C. district courts heard and decided 53 habeas petitions by detainees. They granted the writ in 38 of those cases – more than 70 percent of the time. By contrast, since those decisions were entered, not a single habeas petition contested by the government has been granted; and every previous district court grant of habeas appealed by the government has been reversed by this Court.

In sum, Qassim argues, these oppressive precedents should not apply, “for they are directly contrary to the Supreme Court’s decision in Boumediene and they eviscerate Qassim’s opportunity to challenge his detention in any meaningful way.”