Breaking: Court Rules for Gitmo Detainee, Against Pentagon

A federal judge in Washington, D.C. Gladys Kessler, has granted a preliminary injunction to a Guantanamo detainee. It is believed to be the first time a federal court has said "no" to the Pentagon. The case is RAFIQ BIN BASHIR BIN JALLUL ALHAMI et al., vs. GEORGE W. BUSH, et al.

The opinion, unsealed today, is here.

In a nutshell, the Pentagon wanted to send Gitmo detainee Mohammed Rahman, a Tunisian, back to Tunisia to serve a 20 year sentence for a crime for which he was charged and tried in absentia since his arrival at Guantanamo. He objected, arguing among other grounds, he would be tortured in a Tunesian prison. He filed a habeas action seeking an order preventing his transfer.

From the opinion:

Petitioner Rahman (“Rahman”) is a Tunisian citizen allegedly captured by Pakistani bounty hunters and transferred to the custody of the United States on an undisclosed date. He has been detained in Guantanamo Bay since shortly after his capture. Rahman maintains that Combatant Status Review Tribunal (“CSRT”) proceedings have never resulted in any finding that he is an “unlawful” enemy combatant. On May 15, 2007, the Government provided notice to Petitioners and the Court of its intention to transfer Rahman out of Guantanamo Bay and release him to the Government of Tunisia. A 20-year prison sentence awaits Rahman in Tunisia.


Rahman was tried in absentia under the Tunisian Patriot Act in 2003, convicted and sentenced to 20 years. He has severe health problems.

Rahman has presented evidence that he would face a serious threat of torture if rendered to a Tunisian prison. He cites to reports of international organizations that document torture of prisoners and police brutality in Tunisia. Rahman’s serious health problems, his Tunisian ex poste facto conviction in absentia, and his allegations of the indiscriminate use of torture in Tunisian prisons demonstrate the devastating and irreparable harm he is likely to face if transferred.

The Court noted it has the right to determine its own habeas jurisdiction. In deciding to grant the relief sought in the habeas filing seeking the injunction, Judge Kessler ruled:

In view of the grave harm Rahman has alleged he will face if transferred, it would be a profound miscarriage of justice if this Court denied the Motion based on the Court of Appeals’ decision in Boumediene and the Supreme Court later reversed or modified that decision. At that point, the damage would have been done.

....Finally, the Government suffers absolutely no harm from entry of the Preliminary Injunction, whereas the failure to grant Rahman the interim relief he seeks–-relief necessary to ensure his survival until the Supreme Court rules–-would be irremediable if Boumediene is reversed.

Great work by Rahman's defense lawyers, one of whom is Seton Hall Law Professor Mark Denbeaux.

Update: News coverage of the decision is now available here and here.

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    Kudos to the defenders here - (5.00 / 2) (#1)
    by scribe on Tue Oct 09, 2007 at 05:48:54 PM EST
    Reading the opinion, a couple things jump out:  the so-called Tunisian Patriot Act, under which the petitioner was convicted in absentia and sentenced to 20 years, (a) was passed after the events for which he was accused (the classic definition of an ex post facto statute) and (b) was passed at the behest of the United States.

    And, it would appear also that (c) the United States both knew about the proceeding in Tunisia against him and (d) didn't inform him of the case pending in Tunisia, resulting in (e) his having no opportunity to defend himself.

    Finally, (f) the case against him in Tunisia was brought based upon evidence which was not sufficient to find him an unlawful enemy combatant in the kangaroo courts at Gitmo.

    You mean (1.00 / 2) (#2)
    by Patrick on Tue Oct 09, 2007 at 05:49:23 PM EST
    This guy would rather face the horros of Gitmo than go back to his Tunisia?  

    Does seem strange. (1.00 / 2) (#3)
    by jimakaPPJ on Tue Oct 09, 2007 at 07:08:04 PM EST
    Not Something To Get Worked Up About (none / 0) (#4)
    by Gabriel Malor on Tue Oct 09, 2007 at 07:27:16 PM EST
    This type of injunction is not a surprise once it gets past the unusual jurisdictional questions in this case.

    The fact that it comes from a Guantanamo detainee is the only point of interest, and the court largely sidesteps that point in favor of waiting on the resolution of the Boumediene case. That's fine, but not a stunning victory or anything; it is, after all, only a preliminary injunction.

    It should also be noted that the CSRTs were not in the business of declaring detainees "unlawful enemy combatants." That the court seems to take notice of the lack seems odd, especially since it appears from the footnote that the court was aware that determinations of the lawfulness of  combatancy were not required.

    good point gabriel. (none / 0) (#5)
    by cpinva on Tue Oct 09, 2007 at 11:49:58 PM EST
    of course, since the bush administration has abrogated any responisibility the US has to follow the geneva conventions we are a signatory too, the whole "unlawful enemy combatant" issue becomes moot.

    in effect, mr. bush has taken it upon himself, with his wise counsel, to determine who is and isn't an "unlawful enemy combatant".

    this will be overturned on appeal, based on the govt claiming "state secrets". the great thing about that claim is that they never actually seem to have to prove it. certainly cuts down on billable hours.

    Indeed and State Secrets. (none / 0) (#6)
    by Gabriel Malor on Wed Oct 10, 2007 at 02:07:37 AM EST
    The odd part about the court's reference to the lawfulness of combatancy is that it's irrelevant to the question of whether Rahman can be released to Tunisia.

    His lawyers certainly can't make the case that as a mere "enemy combatant" his release from U.S. custody is prohibited by law. And being classified as an "unlawful enemy combatant" doesn't change that fact and actually makes his situation worse, since that is the predicate for prosecution by military commission.

    As far as state secrets goes, the Supreme Court rejected the opportunity to clarify that doctrine when it rejected the Masri case. Fortunately (?), the Court will have plenty of cases to choose from, should it change its mind.