Filed Date: July 2, 2008
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After the U.S. opened a military prison at Guantanamo Bay in January 2002, hundreds of the 780 men detained as enemy combatants filed petitions for writs of habeas corpus in the U.S. District Court for the District of Columbia. The detainees alleged that the President of the United States, the Secretary of the Department of Defense, and high-ranking army officials failed to provide evidence that the detainees were enemy combatants, and also failed to advance any justification for the arrest, incarceration, and indefinite detention of the detainees. In addition to claims of violations of the Fifth Amendment’s Due Process Clause, many detainees alleged violations of international law, such as Articles 4 and 5 of the Geneva Convention, and challenged their conditions of confinement. The Center for Constitutional Rights represented many of these petitioners and organized a network of hundreds of lawyers (the “GITMO Bar”) to represent the detainees. The GITMO Bar included public interest organizations, private firms, and public defenders.
Immediately after the filing of each petition, the government filed motions to dismiss for lack of jurisdiction. The government argued that acts of Congress stripped federal courts of jurisdiction. Additionally, they argued that the Constitution's Suspension Clause, which guarantees access to the writ of habeas corpus, did not apply to the detainees because the United States did not claim sovereignty over Guantanamo. The detainees in turn argued that the Department of Defense’s Combatant Status Review Tribunals (CSRTs) did not provide a meaningful opportunity for them to challenge their detention and their classification as combatants. Hundreds of petitions were put on hold while awaiting the outcome of appeals for the earliest cases. Ultimately, the question of whether the federal district court had jurisdiction over these habeas petitions reached the Supreme Court of the United States in Boumediene v. Bush in 2008. The Supreme Court ruled that the detainees had a right to the writ of habeas corpus and that the district court had jurisdiction to hear their claims, stressing: “[T]he cost of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.” Boumediene, 553 U.S. 723 (2008).
Initial Protective Orders
As the jurisdictional dispute proceeded, the government sought protective orders to prevent the unauthorized disclosure of classified information to the detainees and their counsel. Numerous cases adopted a ruling issued by Judge Joyce Hens Green on November 8, 2004 in In re Guantanamo Bay Detainee Cases (“Guantanamo I”), and held that:
Additionally, detainees and their counsel were required to sign a Memorandum of Understanding and Acknowledgement before gaining access to any classified or protected information. Guantanamo I, 344 F. Supp. 2d 174 (2004).
Consolidation for Coordination and Management
Following the Supreme Court’s decision in Boumediene, the D.C. District Court consolidated almost all Guantanamo habeas cases (more than 100) into In Re: Guantanamo Bay Detainee Litigation (“Guantanamo II”), Case No. 08-mc-00442. This July 2, 2008 consolidation was for purposes of coordination and case management. Judge Thomas F. Hogan was assigned to oversee coordination and management of the cases, but each detainee's case proceeded individually under their original judge ("Merits Judge"). However, the consolidation excluded Judge James Robertson's Hamdan v. Bush (Case No. 04-cv-1519) and all cases assigned to Judge Richard J. Leon.
Procedures Governing the Coordinated Proceedings
Judge Hogan issued a scheduling order on July 11, 2008 to govern the coordinated proceeding. He ordered the parties to submit reports that identified duplicate petitions; petitioners cleared for release; whether the government filed factual returns or Combatant Status Review Tribunal records for the petitioner; whether a protective order was entered in the case; any pending motions or stays in the case; and any cases dismissed on jurisdictional grounds whose dismissals should be vacated in light of Boumediene. The government was required to submit factual returns reporting the reason the government detained the petitioner, information from the detainee’s Combatant Status Review Tribunal, and the justification for the petitioner’s alleged classification as an enemy combatant. The government was ordered to file such factual returns and motions to amend factual returns at a rate of at least 50 per month beginning with the earliest filed petitions. Despite petitioners’ opposition, the court later granted the government relief from the factual return order by extending the deadline and ordering that the government did not need to file factual returns for petitioners approved for transfer or release.
After reviewing the parties’ reports, Judge Hogan entered three orders on July 29, 2008. The orders lifted all stays, vacated dismissals in 11 cases, and dismissed the cases of duplicate and released petitioners. In addition, Judge Hogan entered a protective order and procedures for protected information. Initially, he adopted Judge Green’s above described orders from Guantanamo I. On September 11, 2008, Judge Hogan entered a new protective order similar in content to the prior order.
On November 6, 2008, Judge Hogan entered an order establishing the procedural framework. It set the burden of proof on the government, set the standard of proof as preponderance of the evidence, provided discovery rights for detainees (including a right to exculpatory materials), and provided procedural processes for hearings. It also required the petitioner to file a “traverse” containing the relevant facts and evidence supporting their petition in response to the government’s factual return. Many petitioners later requested to stay the traverse provision of the order. These procedures applied to all consolidated cases, but the Merits Judges were permitted to alter the framework based on their individual cases. The government filed a motion for reconsideration or alternatively motion for certification of appeal asking for relief from the timelines and amendments to the procedures. The court granted the motion in part, amending the timelines and clarifying some of the procedures. 2008 WL 5245890.
30 Days’ Advance Notice of Transfer
At the time of consolidation for coordination and management, Judge Hogan issued an order requiring that the government provide petitioners and the Court with 30 days’ advance notice of any transfer of a petitioner from Guantanamo in cases where the petitioner requests it. The government appealed the notice requirement on July 25, 2008. On March 15, 2011 the D.C. Circuit vacated Judge Hogan’s order requiring advance notice of transfer.
Consolidation of Uighur Petitions
Merits Case Dockets #s: 05-cv-1509, 05-cv-1602, 05-cv-1704,05-cv-2370, 05-cv-2386, 05-cv-2398
Shortly after the consolidation of cases for coordination, 17 Uighurs (a Turkic Muslim minority group) petitioners filed a motion for consolidation of their petitions in front of Judge Ricardo M. Urbina. Their cases all centered on whether their alleged affiliation with the Uighur organization supported classification as enemy combatants and continued detention. Judge Hogan granted the motion and the Uighur cases were consolidated before Judge Urbina on July 10, 2008. 2008 WL 2872179.
On July 31, 2008, 6 of the 17 Uighurs filed a motion for a temporary restraining order or preliminary injunction requiring the government to transfer them to less restrictive locations within Guantanamo. They were detained at Camp 6 in solitary cells and only allowed out of their cells for four hours a day. Camp 4, where they sought transfer to, allowed detainees to live and eat communally and had 24 hour access to a small outdoor recreation area. Judge Urbina denied their motion on August 7, 2008 because 1) it was unlikely that the detainees had a “right to challenge the conditions of their confinement pursuant to the constitutional writ of habeas corpus” and 2) the judiciary was reluctant to second guess the daily operations of prison facilities. 570 F.Supp.2d 13.
In its August 2008 status report, the government said it would cease treating Uighur petitioners as "enemy combatants" and would provide “special housing” “while efforts continue[d] to resettle them in a foreign country.” Following their classification as “no longer enemy combatants,” the Uighur petitioners filed motions for judgment ordering their release into the United States. For the first time in the nearly seven years of legal disputes, Judge Urbina ordered the petitioners be released into the United States on October 7, 2008, reasoning that the Uighurs’ continued detention exceeded the government’s authority to “wind up” their wartime detentions. Immediately, the government appealed the Uighurs’ release order and the order was stayed pending resolution of the appeal. The D.C. Circuit reversed, holding that the judiciary could not order the executive branch to admit a foreigner into the country. 555 F.3d 1022 (Senior Circuit Judge A. Raymond Randolph, J.). The Supreme Court granted certiorari in October 2009, but before arguments occurred, each petitioner received an offer of resettlement in another country. Five rejected their offers and remained at Guantanamo. Due to the resettlement offers, in March 2010, the Supreme Court vacated the judgment and rather than hearing the case, remanded the case to the D.C. Circuit for further proceedings. 130 S.Ct. 1235. The D.C. Circuit reinstated their original judgment and opinion on May 28, 2010, again finding the Uighur petitioners did not have the right to be released into the United States. 605 F.3d 1046, cert. denied, 131 S.Ct. 1631 (April 18, 2011).
Sealed Orders: Preliminary Injunctions to Prevent Petitioners’ Transfers
In September and October 2008, Judge Hogan filed 9 orders under seal and the government appealed the decisions. The Clearinghouse does not have access to the sealed orders or orders issued by the appeals courts. Presumably, the sealed orders addressed similar issues to Kiyemba v. Bush, No. 05-5487 (D.C. Cir.), since the D.C. Circuit held these appeals in abeyance pending Kiyemba’s outcome. In Kiyemba in April 2009, the petitioners were denied preliminary relief to prevent their transfer to any country where they were likely to be subjected to torture. 561 F.3d 509, cert. denied. In Kiyemba, the D.C. Circuit held that the government had declared its policy not to transfer a detainee to a country that will likely torture him, and the district court could not second-guess the government’s determination of that likelihood. In March 22, 2010, the Supreme Court declined to hear an appeal of Kiyemba. 559 U.S. 1005.
Consolidation for Merits Proceedings
In December 2008, Judge Hogan requested that the parties submit a filing identifying petitions with similar factual issues that may be addressed more efficiently if consolidated for merits proceedings. 2008 WL 5275914. The Court received five filings identifying 52 petitions for consolidation into five distinct groups. Judge Hogan declined to consolidate the petitions because it would not improve the efficiency of the habeas proceedings. 2009 WL 8626850. However, he recommended reassigning fifteen of the petitions into three groups, with each group having a single Merits Judge.
Factual Return Issues
As the government began producing factual returns, they frequently requested extensions of time to produce them. Once the returns were produced, the government and petitioners disagreed on whether the protective order permitted counsel to review with the petitioner classified statements made by that petitioner. In January 2009, Judge Hogan clarified that the protective order permitted counsel to review such statements with the petitioner provided that the court’s Privilege Review Team determined the statements were made by that petitioner to the government. 2009 WL 234965. The government then filed another motion in March 2009 to try and limit petitioners’ access to classified and protected statements. They sought amendments to the protective order that permitted counsel to share with a detainee only classified information that they had learned from the detainee. Judge Hogan denied the motion in part, declining to limit the petitioners’ access to their own statements made to the government. He granted the motion in part, insofar as the motions sought small modifications to the procedures to provide petitioners access to their respective classified statements. 634 F.Supp.2d 17.
In addition, the government sought to protect all the unclassified returns and withhold them from the public. On April 2, 2009, the Associated Press, the New York Times, and USA Today (the “Press”) were permitted to intervene for the limited purpose of opposing the government’s motion to withhold the unclassified returns from the public. Judge Hogan denied the government’s motion on June 1, 2009 because the government failed to provide a sufficient basis for withholding the unclassified information. Furthermore, Judge Hogan directed the government to either 1) publicly file an unclassified factual return or 2) file under seal the unclassified factual return, highlighting the exact words the government sought to protect and explaining in a memorandum why each word or line should be protected. The government failed to comply, instead filing factual returns that withheld unclassified information despite their lack of permission to do so. In response, in October 2009, the Press requested the Court hold the government in contempt. On January 14, 2010, the Court declined to hold the government in contempt and gave the government three months to comply with the order. The Court subsequently extended this deadline and clarified what information may be designated as protected. 787 F.Supp.2d 5.
On December 31, 2013, the Pentagon announced that all of the remaining Uighur detainees had been transferred to Slovakia. Previously, release of Uighur detainees had been delayed by difficulty in finding countries for voluntary resettlement, and concern that the detainees would be persecuted if repatriated to China.
Resolution of Habeas Petitions
Initially, following the jurisdictional dispute and the decision in Boumediene, some detainees won their habeas petitions. However, as the litigation proceeded, detainees’ successes became more limited. Similar to the Uighur cases, granted petitions were typically reversed or vacated by the D.C. Circuit. When petitioners also alleged violations of international law and challenged their conditions of confinement, courts usually dismissed their additional claims for lack of jurisdiction. The petitioners’ right to judicial review was limited to their habeas action.
Many petitions were dismissed as moot, without prejudice, after the government transferred or released the detainees and thus were not decided. President Bush released 532 of the 780 individuals sent to Guantanamo. President Obama transferred 197 individuals from Guantanamo. As of January 2018, 41 men remained in detention at Guantanamo.
Renewed Guantanamo Litigation under President Trump
Merits Case Docket #s: 04-cv-1194, 05-cv-23, 05-cv-764, 05-cv-1607, 05-cv-2386, 08-cv-1360, 08-cv-1440, 09-cv-745,10-cv-1020
At the end of President Obama’s term, his administration approved five detainees for release. However, unexplained problems arose that the Obama administration conceded had nothing to do with any detainees’ wrongdoing. Courts declined to demand that the government show cause, and the subsequent Trump administration did not release these detainees. They were not released until after the end of the Trump administration.
The Trump administration’s lack of action is at least partially attributable to President Trump’s pre-election vows to keep Guantanamo open. Under Trump, eleven Muslim petitioners each filed identical motions for an order granting their existing petitions for habeas relief on January 11, 2018. In their motions, the petitioners focused on how they had been detained between ten and sixteen years without charge. They argued that any authorization for detention for law-of-war purposes no longer supported their detention.
Petitioner Adbul Raza Ali’s motion proceeded in front of Judge Richard J. Leon. Judge Leon denied Ali’s motion on August 10, 2018. Ali v. Trump, 317 F. Supp. 3d 480, hearing en banc denied. Judge Leon found that Ali’s detention remained lawful because Ali was “part of Al Qaeda, the Taliban, or associated forces,” and the “hostilities [we]re ongoing.” His detention was not indefinite, but tied to the conflict against al Qaeda, the Taliban, and associated forces. Petitioner Ali appealed. On May 15, 2020, the Court of Appeals for the D.C. Circuit denied Petitioner Ali’s appeal, affirming Judge Leon’s holding that Petitioner Ali’s continued detention for more than seventeen years did not violate substantive or procedural due process. On December 28, 2020, Petitioner Ali filed a petition for a writ of certiorari on the issue of whether the Due Process Clause applied to the detention of foreign nationals at Guantánamo. The Supreme Court denied the petition for a writ of certiorari on May 17, 2021.
Of the remaining ten motions, eight were referred to Judge Hogan for resolution (Petitioners: Suhail Sharabi; Abdul Latif Nasser; Abdul Rabbani; Ahmed Rabbani; Tofiq Nasser Awad Al-Bihani; Sanad Al Kazimi; Abdul Malik; and Sharqawi Al Hajj). Several of the petitioners had already been cleared for transfer. Oral arguments were held on July 11, 2018, and during the argument, the presiding judge said he felt bound by precedent. As of May 2, 2023, three of these petitioners were transferred to their home countries under the Biden administration; the remaining five were being held in law-of-war detention, but were recommended for transfer if security conditions were met
Petitioners Said Nashir’s and Abu Zubaydah’s (also referred to as Zayn al-Abidin Muhammad Husayn) motions were assigned to Judge Emmet G. Sullivan. As of May 2, 2023, Nashir was being held in law-of-war detention, but recommended for transfer if security conditions were met whereas Zubaydah was being held in indefinite law-of-war detention and not recommended for transfer.
Petitioner Zayn Al-Abidin Muhammad Husayn/Abu Zubaydah
Mr. Husayn filed a case in the European Court of Human Rights alleging mistreatment in a "black site" in Poland, seeking to hold Polish officials accountable for their complicity in his unlawful detention and torture in Poland. He then sought discovery against CIA contractors in the U.S. District Court for the Eastern District of Washington on May 5, 2017. For more on Mr. Husayn's application to subpoena former CIA contractors, which was eventually heard by the Supreme Court, please see In Re Application of Zayn Al-Abidin Muhammad Husayn (Abu Zubaydah).
Guantanamo Under Biden
President Biden renewed the Obama administration’s effort to work towards closure of the Guantanamo Bay prison. On July 19, 2021 the Biden administration repatriated its first detainee from Guantánamo, releasing Abdul Latif Nasser into Moroccan custody. Nasser, who had been captured in and held since 2001, was never charged with a crime. Nasser was also one of the eight petitioners who filed unresolved motions in 2018. Additionally, on August 31, 2021, President Biden declared that the war in Afghanistan was over. Based on this remark, petitioner Abidin Muhhamed Husayn challenged the U.S.’s authority to continue to detain him and petitioned for repatriation. The court denied his petition on June 10, 2022, agreeing with the government that the U.S. still had detention authority under the 2001 Authorization of Military Force because active hostilities beyond those in Afghanistan were ongoing. 2022 WL 2093067.
As of May 2, 2023, thirty detainees remained in Guantanamo. Eleven have been charged (ten of the eleven are awaiting trial and one has been convicted), but the torture, other maltreatment, and clandestine government eavesdropping they experienced in prison may prevent their conviction under U.S. criminal law norms. The Biden administration has made some efforts towards plea bargains, but the September 11 detainee bargains have proven more difficult: the administration’s deliberation over policy principles governing those bargains has led all plea sessions to be canceled. Congress banned Guantanamo detainees from ever entering U.S. territory, including for trial, detention or medical treatment; the Biden administration wants the detainees to agree to a plea bargain that would have them continue at Guantanamo. The next three of the thirty detainees are held in indefinite law-of-war detention without charges or a recommended release, and the remaining sixteen are held in law-of-war detention but have been recommended for release pending transfer agreements with other countries. International law-of-war doctrine makes it permissible to hold detainees without charging them when related to a war.
Current litigation continues to focus on the scope of the government’s detention authority, the evidence courts can consider against detainees, and whether the government must accelerate transfer of cleared detainees.
Published Related Opinions
Alexander Walling (8/17/2018)
Emily Kempa (7/14/2019)
Hannah Juge (4/3/2022)
Sophia Bucci (5/5/2023)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4210064/parties/in-re-guantanamo-bay-detainee-litigation/
Adinaro, Catherine Jean (Ohio)
Anderson, John P. (District of Columbia)
Abel, Charlotte A. (District of Columbia)
Ahern, Paul Edward (District of Columbia)
Azmi, Nimra H. (District of Columbia)
Last updated July 2, 2023, 3 a.m.
State / Territory: District of Columbia
Filing Date: July 2, 2008
Case Ongoing: Yes
Numerous men detained at Guantanamo, without charge or trial, for many years
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Special Case Type(s):
Prevailing Party: Mixed
Nature of Relief:
Source of Relief:
Type of Facility: