Detention: Law of

Whither Hamidullah? Briefs on Bagram Habeas Petition Status Post-Repatriation

By Raffaela Wakeman
Friday, November 29, 2013, 8:04 AM

The briefing regarding the mootness of the habeas appeal of the now-former Bagram detainee, Hamidullah, is before the D.C. Circuit. Last week the U.S. government informed Hamidullah's attorneys that he had been transferred, along with five other non-Afghans who had been detained by the U.S. at Bagram Air Force Base, to the custody of the Pakistani government. So the D.C. Circuit ordered the parties to submit materials as to whether the court should dismiss Hamidullah's habeas case on mootness grounds.

Not much has been reported about these six repatriated detainees. All six, including Hamidullah, are Pakistani nationals, and the declaration of Paul Lewis, the DoD Special Envoy for Detainee Transfers, appended to the government's brief, affirms that the United States has relinquished "all legal and physical custody and control over Hamidullah and the other transferred detainees." The declaration also explains generally the terms of the United States' agreement with Pakistan on detainee transfer policies: Pakistan has "provided assurances" that those detainees transferred to its custody  will be treated "humanely and in accordance with its laws and international obligations." Pakistan has also:

agreed to take responsibility for ensuring, consistent with Pakistan law, that the transferred detainees will not pose a continuing threat to the United States and its allies. The implementation and enforcement of any security measures, however, are within the sole discretion and control of the government of Pakistan and are not the result of any specific terms or conditions required by the United States. In other words, within the government of Pakistan's sole discretion, a transferred detainee may be released or subject to continued detention, investigation, and/or prosecution by Pakistan under its laws.

Hamidullah's counsel contends that the only information the U.S. government conveyed was that his client had been transferred to Pakistan. He describes the steps that he and his colleagues in Pakistan have taken since learning of the transfer 11 days ago. Hamidullah's counsel filed with a Pakistani court a request for access to Hamidullah and to be provided with details of the circumstances of his detention. In response, the Pakistan Ministry of Foreign Affairs confirmed only than that he had been repatriated (bureaucratic policies dictated that Hamidullah's location was under the purview of the Ministry of the Interior). After a bit of back-and-forth, and court admonishing, the Ministry of the Interior disclosed Hamidullah's location: he is in Peshawar, detained for interrogation. And now, counsel is waiting for the Pakistani government to comply with the Lahore High Court's subsequent order that Hamidullah have access to his attorney on December 2.

Hamidullah's counsel ask the D.C. Circuit for two orders: first, a limited remand to find the facts as to Hamidullah's status; second, that the U.S. government provide the information necessary for the D.C. Circuit to make an "informed decision."

As to the question of mootness, Hamidullah's counsel explain the doctrine enunciated by the D.C. Circuit in Gul v. Obama: habeas cases are moot when the petitioners are released from military custody at Guantanamo, and the petitioner is responsible for demonstrating concrete injury as a result of detention or continued designation. And they must be afforded the opportunity to pull together the necessary facts to demonstrate that concrete injury, Hamidullah's team says.

Despite his information-less-ness, Hamidullah's counsel suggests the information he does have makes a continuing injury at least plausible. What would hypothetical limited discovery look like in this case? The attorney has some ideas: the terms and conditions of Hamidullah’s transfer and any evidence, reports, or communications the United States provided to Pakistan in connection with Hamidullah’s transfer. Petitioner's counsel concludes that there just isn't enough information to decide whether the case is in fact mooted by Hamidullah's repatriation.

The government believes Hamidullah's habeas appeal to be moot, and finds parallels between Hamidullah and the petitioners in Gul: detainees in both cases were relinquished by the U.S. government following diplomatic negotiations between the U.S. and the foreign country; the U.S. relinquished all legal custody and control of the detainee; and the receiving country was responsible for delineating security restrictions.

Should that argument fail, the U.S. urges that principles of comity counsel that the court should nonetheless rule along the lines of the reasoning in Munaf and Kiyemba, which "bars a court from issuing a writ of habeas corpus to shield a detainee from prosecution and detention by another sovereign according to its laws."