Salih v. Obama; Hatim v. Obama

January 5, 2010

1. Salih v. Obama (D.D.C. Dec. 30, 2009) (dismissing habeas petition)

Just before the new year, Judge Urbina issued an order dismissing (without prejudice) a GTMO habeas petition filed in the name of Abdul Salih, apparently on the ground that Salih has refused to authorize the attorneys involved to pursue such relief.  This is one of an increasing number of GTMO habeas cases that have quietly gone away because the detainee is unwilling, for whatever reason, to pursue it.  The brief order is posted here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1234-33

2. Hatim v. Obama (D.D.C. Dec. 16, 2009) (granting habeas petition)

Back on December 16th, I noted that Judge Urbina had placed a notice on the docket memorializing the grant of a habeas petition on behalf of Saeed Hatim, and promised to follow up with the redacted opinion whenever it became available.  It is now available here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1429-337

In brief, Judge Urbina holds that (i) the government’s substantive detention authority extends to those who are part of AQ, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners, but not also to persons who merely provide material or direct support without being part of the group (yes, this appears to conflict with today’s Circuit ruling in Al Bihany), and (ii) the government evidence was not sufficiently credible to support the allegations meant to establish such membership (in large part because of lingering taint from prior abusive interrogations of the detainee).  Note that the latter part of the ruling would require dismissal even if Judge Urbina had adopted the broader, Al Bihany standard for substantive scope of detention power.


DC Circuit Affirms Denial of Habeas to GTMO Detainee – Al Bihani v. Obama

January 5, 2010

Al Bihani v. Obama (D.C. Cir. Jan. 5, 2010)

Big news out of the DC Circuit just now – a D.C. Circuit panel has just issued its first opinion reviewing a post-Boumediene GTMO habeas decision on the merits (the earlier Kiyemba decision concerned not the merits but rather the question of relief for petitioners as to whom the government no longer asserted detention authority yet had not released).  The panel affirms a decision denying relief to a citizen of Yemen named Ghaleb Nassar Al Bihani.  The opinion is posted here:

http://pacer.cadc.uscourts.gov/common/opinions/201001/09-5051-1223587.pdf

There are many important holdings imbedded in the majority opinion by Judge Brown (joined by Judge Kavanaugh), which opens by explaining that the panel “aims to narrow the legal uncertainty that clouds detention” by addressing both the substantive scope of detention authority and the constitutional baselines for habeas procedure in this setting. Read the rest of this entry »


United States v. Moussaoui (4th Cir. Jan. 4, 2009) (affirming conviction and sentence)

January 5, 2010

In a panel opinion by Judge Traxler, the Fourth Circuit affirms the Moussaoui conviction and sentence.  The opinion is here:

http://pacer.ca4.uscourts.gov/opinion.pdf/064494.P.pdf

Key aspects of the holding:

First, the court refuses to consider a host of allegedly incorrect pretrial procedure rulings, reasoning that the guilty plea wiped them away so long as they did not concern jurisdiction or the adequacy of the plea itself.

Second, the court rejects Moussaoui’s Brady-based challenge to the adequacy of the plea, concluding that Moussauoi’s waiver of such claims pre-plea was knowing.

Third, the court rejects Moussaoui’s ineffective assistance claim relating to his counsel’ inability to discuss certain classified information with him:

“First, the restrictions on counsel’s ability to communicate with Moussaoui regarding pretrial discovery matters were not so onerous as to render counsel effectively absent during the guilty plea proceeding. The right to communicate with counsel at any point in the proceedings is not absolute. “[I]n certain contexts there can be an important need to protect a countervailing interest, which may justify a restriction on defendant’s ability to consult with his attorney if the restriction is carefully tailored and limited.” In re Terrorist Bombings, 552 F.3d at 127 (internal quotation marks omitted); see United States v. Hung, 667 F.2d 1105, 1107-08 (4th Cir. 1981) (per curiam) (holding that protective order prohibiting defense counsel from disclosing contents of certain documents did not violate defendant’s Fifth or Sixth Amendment rights where trial court allowed defense counsel to review Jencks Act material to assist in determining whether material should be disclosed, but precluded counsel from consulting with defendant about the material); United States v. Bell, 464 F.2d 667, 671-72 (2d Cir. 1972) (counsel barred from disclosing sensitive airport hijacker profiling system); cf. Morgan v. Bennett, 204 F.3d 360, 368 (2d Cir. 2000) (barring counsel from disclosing identity of a cooperating witness to the defendant); United States v. Herrero, 893 F.2d 1512, 1526-27 (7th Cir. 1990) (barring counsel from revealing name of a confidential informant to the defendant).

That principle applies in this case. The Government’s interest in protecting the classified information during the discovery and appeal process justified the limited restrictions upon Moussaoui’s right to communicate with counsel pending completion of the CIPA process and preparation of unclassified substitutions. Cf. Abu Ali, 528 F.3d at 254 (“A defendant and his counsel, if lacking in the requisite security clearance, must be excluded from hearings that determine what classified information is material and whether substitutions crafted by the government suffice to provide the defendant adequate means of presenting a defense and obtaining a fair trial.”)”

Fourth, the court denies Moussaoui’s lack-of-competence challenge, citing ample evidence to support the district court’s competence determination (esp. in view of the abuse-of-discretion standard).

Fifth, the court finds no plain error in the district judge’s Rule 11 procedures.

Sixth, the court finds a sufficient factual foundation for the conspiracy conviction:

“There was no requirement that Moussaoui personally admit to participating in the 9/11 attacks, or that he was intended to be a part of those attacks. And, as noted above, the fact that he was kept separate from the other hijackers and did not know the specifics of the planes operation was, in the circumstances of this case, fully consistent with the operational trade craft of al Qaeda and Moussaoui’s training.”

There are also some additional holdings relating to sentencing and other matters.


Wilner v. NSA; United States v. Slough

January 5, 2010

1. Wilner v. NSA (2d Cir. Dec. 30, 2009) (affirming judgment dismissing FOIA request re TSP surveillance)

A Second Circuit panel has affirmed summary judgment against a group of GTMO habeas attorneys who had sought to acquire information from NSA and DOJ, pursuant to FOIA, as to whether the government had intercepted their communications with their clients.  The government filed a Glomar response, and the panel in this opinion upholds the legitimacy and sufficiency of their doing so.  Posted here:

http://www.ca2.uscourts.gov/decisions/isysquery/acf855f6-1d7b-443f-953c-6727fd659a3c/1/doc/08-4726-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/acf855f6-1d7b-443f-953c-6727fd659a3c/1/hilite/ Read the rest of this entry »