Case: Document: Filed: 12/22/2010 Page: 1. [NOT YET SCHEDULED FOR ORAL ARGUMENT] No , No (consolidated)

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1 Case: Document: Filed: 12/22/2010 Page: 1 [NOT YET SCHEDULED FOR ORAL ARGUMENT] No , No (consolidated) IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NAZUL GUL, v. Petitioner-Appellant, BARACK OBAMA, et al., Respondents-Appellees. ADEL HAMAD, v. Petitioner-Appellant, BARACK OBAMA, et al., Respondents-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR RESPONDENTS-APPELLEES TONY WEST Assistant Attorney General ROBERT M. LOEB (202) BENJAMIN S. KINGSLEY (202) Attorneys, Appellate Staff Civil Division, Room 7261 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, DC

2 Case: Document: Filed: 12/22/2010 Page: 2 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici Gul v. Obama, et al. (No ): Petitioner-appellant: Nazul Gul Respondents-appellees: Barack Obama, President of the United States Robert M. Gates, Secretary of Defense Tom Copeman, Navy Rear Admiral Donnie Thomas, Army Colonel Adel Hamad v. Obama, et al. (No ): Petitioners-appellants: Adel Hamad Respondents-appellees: Barack Obama, President of the United States Robert M. Gates, Secretary of Defense Tom Copeman, Navy Rear Admiral Donnie Thomas, Army Colonel C-1 of 2

3 Case: Document: Filed: 12/22/2010 Page: 3 B. Rulings Under Review Orders of the district court: No (D.D.C.), docket #100 (Gul); No (D.D.C.), docket #122 (Hamad). C. Related Cases These cases have not previously been before this Court or any other court. There are eleven public appeals that are pending before this Court and that present the same legal issues as these cases: Khan v. Obama, et al., No (D.C. Cir.); Rimi v. Obama, et al., No (D.C. Cir.); Hamoodah, et al. v. Obama, et al., No (D.C. Cir.); Al Hajji, et al. v. Obama, et al., No (D.C. Cir.); Chaman v. Obama, et al., No (D.C. Cir.); Aminullah v. Obama, et al., No (D.C. Cir.); Hamlily v. Obama, et al., No (D.C. Cir.); Habashi v. Obama, et al., No (D.C. Cir.); Zuhair v. Obama, et al., No (D.C. Cir.); Barre v. Obama, et al., No (D.C. Cir.); C-2 of 2

4 Case: Document: Filed: 12/22/2010 Page: 4 Al-Mashad, et al. v. Obama, et al., No (D.C. Cir.). All of these appeals have been held in abeyance pending the determination of this appeal. There may be other sealed cases that present the same issues as well. /s/ Benjamin S. Kingsley Benjamin S. Kingsley Benjamin.S.Kingsley@usdoj.gov Attorney, Appellate Staff Civil Division, Room 7261 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, DC C-2 of 2

5 Case: Document: Filed: 12/22/2010 Page: 5 TABLE OF CONTENTS Page STATEMENT OF JURISDICTION STATEMENT OF THE ISSUE... 2 STATUTES AND REGULATIONS... 2 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS I. Factual Background... 3 II. District Court Proceedings SUMMARY OF ARGUMENT STANDARD OF REVIEW ARGUMENT I. THE DISTRICT COURT PROPERLY HELD THAT THE HABEAS CLAIMS OF THE RELEASED GUANTANAMO DETAINEES ARE MOOT A. The Constitution Does Not Require a Habeas Remedy For Former Guantanamo Detainees Who Are No Longer Under the Custody or Control of the United States B. Equitable Principles Weigh Heavily Against Extending Habeas to Former Detainees II. PETITIONERS COLLATERAL CONSEQUENCES AND EQUITABLE ARGUMENTS LACK MERIT ii -

6 Case: Document: Filed: 12/22/2010 Page: 6 A. Reference to Alleged Collateral Consequences of Detention Does Not Save Petitioners Claims from Mootness The Collateral Consequences Doctrine Does Not Apply to Habeas Claims of Former Guantanamo Detainees Former Guantanamo Detainees Are Not Subject To Any Redressable Collateral Consequences of Detention B. Alleged Delay and Actual Innocence Are Not Relevant To Whether Petitioners' Claims Are Moot CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE STATUTORY ADDENDUM EXHIBIT A - iii -

7 Case: Document: Filed: 12/22/2010 Page: 7 TABLE OF AUTHORITIES Cases: Page Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) Al Ginco v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009) Al Harbi v. Obama, 2010 WL (D.D.C. 2010), appeal pending, No (D.C. Cir.) Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103 (D.D.C. 2010) Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) Basardh v. Obama, 612 F. Supp. 2d 30 (D.D.C. 2009) Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) Bjerkan v. United States, 529 F.2d 125 (7th Cir. 1975) , 31 Ex parte Bollman, 8 U.S. 75, 4 Cranch 75 (1807) *Boumediene v. Bush, 553 U.S. 723 (2008)... 1, 2, 13, 23, 24, 32 - iv -

8 Case: Document: Filed: 12/22/2010 Page: 8 Brown v. Allen, 344 U.S. 443 (1953) Bucheit v. PLO, 388 F.3d 346 (D.C. Cir. 2004) Campbell v. PMI Food Equip. Group, Inc., 509 F.3d 776 (6th Cir. 2007) Carafas v. LaVallee, 391 U.S. 234 (1968)... 22, 27, 28 Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009) Coalition of Airline Pilots Ass ns v. FAA, 370 F.3d 1184 (D.C. Cir. 2004) Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993) Fay v. Noia, 372 U.S. 391 (1963) Fiswick v. United States, 329 U.S. 211 (1946) Francis v. Henderson, 425 U.S. 536 (1976) Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980) Hamdi v. Rumsfeld, 542 U.S. 507 (2004)... 9, 22 - v -

9 Case: Document: Filed: 12/22/2010 Page: 9 Hensley v. Municipal Court, 411 U.S. 345 (1973) INS v. St. Cyr, 533 U.S. 289 (2001)... 13, 14 Justin v. Jacobs, 449 F.2d 1017 (D.C. Cir. 1971) , 31 *Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009).... 1, 14, 15, 18, 23, 34 Lane v. Williams, 455 U.S. 624 (1982) Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) *Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)... 16, 33, 36 McBryde v. Comm. to Review Cir. Council Conduct & Disability Orders of the Judicial Conf. of the U.S., 264 F.3d 52 (D.C. Cir. 2001) *Munaf v. Geren, 553 U.S. 674 (2008)... 7, 9, 16, 17, 25 Nat'l Wrestling Coaches Ass'n v. Dept. of Educ., 366 F.3d 930 (D.C. Cir. 2004) Naylor v. Superior Court of Arizona, 558 F.2d 1363 (9th Cir. 1977) , 31 *Pharmachemie B.V. v. Barr Labs., Inc.,, 276 F.3d 627 (D.C. Cir. 2002) , 13, 41 - vi -

10 Case: Document: Filed: 12/22/2010 Page: 10 Preiser v. Newkirk, 422 U.S. 395 (1975) Preiser v. Rodriguez, 411 U.S. 475 (1973)... 9, 24 *Qassim v. Bush, 466 F.3d 1073 (D.C. Cir. 2006) , 21, 22, 37 Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116 (812) Sibron v. State of New York, 392 U.S. 40 (1968)... 27, 28, 29 Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976) *Spencer v. Kemna, 523 U.S. 1 (1998)... 8, 13, 21, 26, 27, 29, 30, 40, 41, 42 Swain v. Pressley, 430 U.S. 372 (Burger, C. J., concurring) United States ex rel. Weismiller v. Lane, 815 F.2d 1106 (7th Cir. 1987) Wade v. Carsley, 433 F.2d 68 (5th Cir. 1970) White v. White, 925 F.2d 287 (9th Cir. 1991) Withrow v. Williams, 507 U.S. 680 (1993) vii -

11 Case: Document: Filed: 12/22/2010 Page: 11 Statutes: 8 U.S.C. 1182(a)(3)(B) , U.S.C U.S.C , U.S.C. 2241(c) U.S.C. 2241(e)(1) U.S.C U.S.C , U.S.C (j)(2)(C)(v) , Pub. L. No. 148, 119 Stat (2005) Pub. L , 115 Stat. 224 (2001) viii -

12 Case: Document: Filed: 12/22/2010 Page: 12 GLOSSARY Term JA CR Definition Joint Appendix Clerk s Record Pet. Br Petitioners Brief DTA Detainee Treatment Act MCA Military Commissions Act AUMF Authorization for the Use of Military Force CSRT Combatant Status Review Tribunal - ix -

13 Case: Document: Filed: 12/22/2010 Page: 13 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No , No (consolidated) NAZUL GUL, Petitioner-appellant, v. BARACK OBAMA, et al., Respondents-appellees. ADEL HAMAD, Petitioner-appellant v. BARACK OBAMA, et al., Respondents-appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR RESPONDENTS-APPELLEES STATEMENT OF JURISDICTION Petitioners invoked the district court s jurisdiction over petitioners initial habeas corpus petitions under 28 U.S.C. 2241, Kiyemba v. Obama, 561 F.3d 509, 512 (D.C. Cir. 2009) (Kiyemba II), and directly under the Constitution, Boumediene

14 Case: Document: Filed: 12/22/2010 Page: 14 v. Bush, 553 U.S. 723, 799 (2008) (Souter, J., concurring) ( Subsequent legislation eliminated the statutory habeas jurisdiction over these claims, so that now there must be constitutionally based jurisdiction or none at all. ). The district court held, after petitioners release, that their claims were moot, JA , and accordingly dismissed their habeas petitions, JA This Court reviews the district court s final order dismissing the petitions as moot under 28 U.S.C and STATEMENT OF THE ISSUE Whether the district court correctly dismissed as moot the habeas petitions of former Guantanamo detainees who obtained full relief when they were released from the custody and control of the United States. STATUTES AND REGULATIONS The relevant statutory and regulatory provisions are reproduced in the addendum to this brief. STATEMENT OF THE CASE These cases present the claims of two former Guantanamo detainees who have been released from custody at Guantanamo yet continue to request judicial review of their former detention. These cases are representative of the claims of approximately 110 detainees who the government released voluntarily from detention at Guantanamo yet who continued to pursue their habeas claims. These claims were - 2 -

15 Case: Document: Filed: 12/22/2010 Page: 15 heard mainly by two separate district courts, both of which dismissed all of these claims, holding that, because these petitioners have been released from United States detention at Guantanamo and are no longer subject to the custody and control of the United States, their habeas claims are moot. Approximately 13 petitioners appealed these dismissals to this Court, which has scheduled these two cases for briefing and argument while holding the remainder of the cases in abeyance pending disposition of these appeals. STATEMENT OF THE FACTS I. Factual Background Petitioners in these consolidated cases are Nazul Gul and Adel Hamad, both of whom were previously detained by the United States at the military base at Guantanamo Bay, Cuba, and were thereafter released from United States custody and control. Gul was taken into custody by United States forces in Gardez, Afghanistan, in May JA He was eventually transferred to and detained at Guantanamo. JA In March 2007, Gul was released from United States custody and control, and transferred to his home country of Afghanistan. JA 847. Hamad was taken into custody by Pakistani forces in Peshawar, Pakistan, in July JA 109. He was eventually transferred to the custody of the United States - 3 -

16 Case: Document: Filed: 12/22/2010 Page: 16 and detained at Guantanamo. JA 109. In December 2007, Hamad was released from United States custody and control, and transferred to his home country of Sudan, where he was reunited with his family. JA 947, 950. Both petitioners now live in their home countries. In this and other habeas cases involving current or former Guantanamo detainees, the government has submitted declarations from various officials, including Ambassador Clint Williamson and former Deputy Assistant Secretary of Defense for Detainee Affairs 1 Sandra Hodgkinson, explaining the status of former detainees. See JA (Hodgkinson Declaration); JA (Williamson Declaration). These declarations attest that, when a detainee is transferred, he is transferred after a dialogue with the receiving government, the purpose of which is to ascertain or establish what measures the receiving government intends to take, pursuant to its own domestic laws and independent determinations, that will ensure that the detainee will not pose a continuing threat to the United States and its allies. JA However, once transferred, whatever security restrictions the receiving country may apply to a former detainee are at the discretion of the receiving country, and in all 1 The Government also has recently filed a November 2009 declaration in several other cases to reaffirm these transfer policies. See Fried Decl. 3 4, 6 12 (filed in D.D.C. No. 05-cv-2386, Doc. 1682, Ex. 3). That declaration is attached to the brief for this Court s convenience as Exhibit A

17 Case: Document: Filed: 12/22/2010 Page: 17 cases where a detainee has been released from Guantanamo, the United States relinquishes all legal and physical custody of the detainee and he is transferred entirely to the custody and control of the other government. JA Accordingly, both petitioners are now beyond the legal and physical custody of the United States. II. District Court Proceedings Gul and Hamad both filed habeas petitions, seeking release from custody, in their respective district courts in May 2005 and filed amended petitions in December JA 1 3, 25 (Gul), 4 6, 47 (Hamad). Both cases were stayed by the district courts pending the resolution in this Court of various appeals presenting issues directly relevant to petitioners cases, including whether the district courts had jurisdiction over petitioners habeas petitions under the Detainee Treatment Act ( DTA ), 109 Pub. L. No. 148, 119 Stat (2005). JA Petitioners filed motions to lift these stays and to proceed with discovery or with the merits of their cases. See JA (Gul), (Hamad); see also Gul ( ) CR 17, 20, 27, 28, 44 46, 49, 51; Hamad ( ) CR 31, 45, 55 63, 77. The district courts held some of these motions in abeyance, denied some of them pending resolution of the various jurisdictional issues relating to detainee habeas petitions, see Gul CR 23, 26; Hamad CR 25, and never resolved some of them because the cases were mooted before they were considered. Following Gul s transfer to Afghanistan and release - 5 -

18 Case: Document: Filed: 12/22/2010 Page: 18 from United States custody in 2007, Gul CR 65, the district court dismissed his habeas petition as moot, JA 849. Gul filed a motion to reconsider, which was not immediately resolved. Gul CR 69. Following the Supreme Court s decision in Boumediene clarifying the district courts jurisdiction over petitioners habeas petitions, both cases, including Gul s motion for reconsideration, were transferred to Judge Hogan, along with the cases of all but four other former detainees who had been released from custody, for coordination and management. See 08-mc-0444 (D.D.C.), docket # 80; Gul CR 83. After consolidation, Judge Hogan ordered status reports on all of the cases and consolidated briefing on mootness. Gul CR 76, 79, 89 91; Hamad CR 96, 105, On April 1, 2010, Judge Hogan dismissed as moot the habeas petitions of approximately 105 former detainees, including Gul and Hamad, who had been 2 transferred from United States custody. JA Judge Hogan dismissed these petitions on identical grounds, holding that once a detainee has been released from 2 Judge Hogan s dismissal followed an earlier dismissal, in November 2009, by Judge Leon of the petitions of four other detainees who had been released from United States custody and whose petitions had not been transferred to Judge Hogan. JA This order rested on identical grounds as Judge Hogan s order which is currently before this Court. Those four petitioners appealed Judge Leon s order, and this Court has consolidated their appeals and held them in abeyance pending disposition of this case

19 Case: Document: Filed: 12/22/2010 Page: 19 the custody of the United States and transferred to a foreign country, the habeas petition challenging the lawfulness of the detention by the United States is moot. JA Relying on Munaf v. Geren, 553 U.S. 674, 702 (2008), Judge Hogan credited the government s sworn declarations, applicable to all of the petitioners, that, [i]n all cases of transfer, the detainee is transferred entirely to the custody and control of the other government, and once transferred, is no longer in the custody and control of the United States, JA , and that any further restraints on petitioners are imposed pursuant to [the foreign government s] own domestic law and independent determinations, id. at Given that the government demonstrated through sworn declarations that it maintains no continuing control over any former detainees that have been released from Guantanamo and transferred to the custody of foreign governments, and further given that United States courts cannot control the actions of foreign governments, Judge Hogan held that any such alleged restrictions did not constitute redressable collateral consequences of detention in any of these cases. JA Judge Hogan also rejected petitioners other arguments relating to alleged collateral consequences of their prior detention. With respect to petitioners claims that they were subject to stigma as a result of their prior detention, JA , or - 7 -

20 Case: Document: Filed: 12/22/2010 Page: 20 subject to statutory disabilities on travel or admissibility to the United States, JA , Judge Hogan held that such effects were not remediable in these habeas actions. With respect to petitioners claims that they may be subject to bars on damages suits against the United States or its officials by virtue of having been detained, Judge Hogan held that, under Spencer v. Kemna, 523 U.S. 1 (1998), the absence of an available damages remedy does not prevent mootness of a habeas claim. JA Given that petitioners had been released from custody and presented no redressable collateral consequences of detention, JA 1202, Judge Hogan dismissed all of the approximately 105 habeas petitions as moot. JA Petitioners timely appealed this order. JA SUMMARY OF ARGUMENT Petitioners here are former Guantanamo detainees who have been transferred from Guantanamo Bay to other countries Gul to Afghanistan and Hamad to Sudan. Sworn government declarations, credited by the district court, explained that, upon release from Guantanamo, the United States government exerts no continuing custody or control over any former detainees, including petitioners here. Both petitioners have therefore already obtained the only remedy that is available to them in a habeas action release. Because of their release from United States custody, and given that - 8 -

21 Case: Document: Filed: 12/22/2010 Page: 21 the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), these petitioners habeas petitions no longer present a case or controversy under Article III, 2 of the Constitution and should therefore be dismissed as moot. Moreover, compelling prudential reasons strongly counsel against providing a habeas remedy to these released former military detainees. As recognized in Munaf v. Geren, 553 U.S. 674 (2008), habeas relief is, at bottom, an equitable remedy with equitable limits. Just as a habeas remedy was not appropriate in Munaf when petitioners were requesting more than just their release, a habeas remedy cannot properly be afforded once a Guantanamo detainee has been released from United States custody. Petitioners raise various alleged collateral consequences of detention that they contend prevent the mootness of their cases. But the collateral consequences doctrine, derived from an understanding of the statutory habeas statutes in the context of criminal convictions in state and federal courts, is inappropriate for application to the context of wartime detentions. Petitioners were not criminally convicted, and instead were detained under the laws of war. Unlike criminal convictions, detention under the laws of war is not penal in nature. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion). Thus, reliance on a doctrine developed in an entirely different context is inappropriate. Additionally, petitioners habeas rights rest in - 9 -

22 Case: Document: Filed: 12/22/2010 Page: 22 constitutional habeas, not statutory habeas, and such a habeas right does not extend beyond release from detention. And the same equitable principles expressed in Munaf strongly counsel against applying a doctrine, initially developed to permit released prisoners to challenge the continuing legal disabilities of their convictions, to the context of released wartime detainees. In any event, petitioners present no cognizable collateral consequences traceable to defendants or remediable by a court. Their core complaints that they are stigmatized by their former detention or by their prior CSRT enemy combatant status designation and subject to conditions imposed by the governments of Afghanistan or Sudan are not redressable in a habeas action. Any conditions or stigma to which they are currently subject are within the discretion of the Sudanese or Afghan governments or other third parties, and are plainly beyond the control of our courts. Similarly, their complaint about inclusion on the no fly list is not redressable in habeas because the relevant statutory provision mandates their inclusion by virtue of having been detained, whether exonerated by a court or not. And their vague assertions about being inadmissible to the United States by virtue of the terrorism bars in the federal immigration statutes or subjected to targeted force by the United States are completely speculative

23 Case: Document: Filed: 12/22/2010 Page: 23 Finally, petitioners invoke equitable principles to contend that the meritorious nature of their claims and the delays to which their claims were subject favor review even if their claims are entirely moot. Their arguments fail, as the nature of a jurisdictional determination such as mootness prevents a court from looking to the merits if it has no jurisdiction. Regardless, petitioners cannot establish any delay, and even if they could, there is no exception to the mootness doctrine based on delay. Additionally, even if petitioners could point to any relevant equitable factors, there are even stronger equitable reasons counseling against further review. These reasons include the importance of avoiding further judicial involvement and supervision of the operations of sovereign foreign governments, and the sensitive and classified national security matters of the Executive, as well as the expenditure of enormous judicial and government resources in litigating the many potential claims of former detainees. STANDARD OF REVIEW The district court s dismissal of a petition for a writ of habeas corpus for 3 mootness is reviewed de novo. Bensayah v. Obama, 610 F.3d 718, 722 (D.C. Cir. 3 In his notice of appeal in this case, Gul did not designate the original dismissal of his case as moot before his case was transferred to Judge Hogan, which appears at JA 849. JA When his case was transferred to Judge Hogan, his motion to reconsider was pending. Gul CR 69, 83. Gul s appeal is therefore from Judge Hogan s denial of Gul s motion to reconsider, and is not an appeal from the initial

24 Case: Document: Filed: 12/22/2010 Page: ); Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C. Cir. 2009). ARGUMENT I. THE DISTRICT COURT PROPERLY HELD THAT THE HABEAS CLAIMS OF THE RELEASED GUANTANAMO DETAINEES ARE MOOT. A. The Constitution Does Not Require a Habeas Remedy For Former Guantanamo Detainees Who Are No Longer Under the Custody or Control of the United States. It is well-established that Article III of the Constitution limits the subjectmatter jurisdiction of the federal courts to adjudication of actual ongoing controversies between litigants. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975). This requirement applies at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks omitted). The rule against deciding moot cases forbids federal courts from rendering advisory opinions or decid[ing] questions that cannot affect the rights of litigants in the case before them. Pharmachemie B.V. v. Barr Labs., Inc., order dismissing his habeas case. It therefore is technically subject to review for abuse of discretion. Bucheit v. PLO, 388 F.3d 346, 353 n.4 (D.C. Cir. 2004). However, Judge Hogan treated all of the cases he dismissed as though they were in an identical procedural posture, and regardless, the government does not believe the standard of review has any effect on Gul s appeal

25 Case: Document: Filed: 12/22/2010 Page: F.3d 627, 631 (D.C. Cir. 2002) (internal quotation marks omitted). Accordingly, mootness is a threshold jurisdictional issue. Coalition of Airline Pilots Ass'ns v. FAA, 370 F.3d 1184, 1189 (D.C. Cir. 2004). In these cases, petitioners have already received the relief sought through their habeas petitions their release from United States custody. The district court, thus, correctly held that their habeas cases are moot. In holding that Guantanamo detainees were entitled to a constitutionally adequate habeas proceeding, see Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court explained the basic historical contours of the habeas right. The Court noted that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law, id. at 779 (quoting INS v. St. Cyr, 533 U.S. 289 (2001)), and that the habeas court must have the power to order the conditional release of an individual unlawfully detained. Id. Statutory habeas review, particularly of criminal convictions, has been expanded to include review of collateral consequences, see Spencer v. Kemna, 523 U.S. 1, 7 8 (1998); Qassim v. Bush, 466 F.3d 1073, (D.C. Cir. 2006). But [a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest. St. Cyr,

26 Case: Document: Filed: 12/22/2010 Page: U.S. at 301; Swain v. Pressley, 430 U.S. 372, (Burger, C. J., concurring) (noting that the traditional Great Writ was largely a remedy against executive detention ); Brown v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring in result) ( The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial. ); Ex parte Bollman, 8 U.S. 75, 4 Cranch 75, 136 (1807) (holding that, where imprisonment is unlawful, the court can only direct [the prisoner] to be discharged ). In these cases, petitioners have been released from the executive detention that served as the basis for their habeas claims. As explained in a declaration of then- Deputy Assistant Secretary of Defense Hodgkinson, [i]n all cases of transfer, the detainee is transferred entirely to the custody and control of the other government, and once transferred, is no longer in the custody and control of the United States; the individual is detained, if at all, by the foreign government pursuant to its own laws and not on behalf of the United States. JA In Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009), cert. denied, 130 S. Ct (2010) (Kiyemba II), this Court 4 credited a prior version of this Government declaration. The Court rejected the 4 The Hodgkinson declaration was prepared for use in the Guantanamo habeas litigation and is an updated version of the Waxman declaration credited by this Court in Kiyemba II. While Ms. Hodgkinson no longer serves in the same position at the Department of Defense in which she served at the time she executed the declaration, the transfer policies and practices set forth in her declaration remain in effect. The

27 Case: Document: Filed: 12/22/2010 Page: 27 attempts of certain Guantanamo detainees to obtain advance notice of transfer, which they sought in order to have the opportunity to seek injunction of their transfers based on their expectation that recipient countries would detain or prosecute them. In rejecting their arguments, this Court observed that, [a]fter their release from the custody of the United States, any prosecution or detention the petitioners might face would be effected by the foreign government pursuant to its own laws and not on behalf of the United States. Kiyemba II, 561 F.3d at 515 (quoting government declaration). This Court further noted that, [i]n view of the Government s sworn declarations, and of the detainees failure to present anything that contradicts them, we have no reason to think the transfer process may be a ruse and a fraud on the court designed to maintain control over the detainees beyond the reach of the writ. Id. at 515 n. 7. The district court credited these declarations, as this Court did in Kiyemba II, and found that petitioners had been released from United States custody. JA Here, consistent with the government s sworn declarations, neither petitioner is subject to the custody and control of the United States. Both have been transferred to foreign countries. Hamad now lives with his family in Sudan, and Gul government also has recently filed a November 2009 declaration in several other cases to reaffirm these transfer policies. See Fried Decl. 3 4, 6 12 (Exhibit A)

28 Case: Document: Filed: 12/22/2010 Page: 28 lives in Afghanistan. Their legal status, and any issue the may have in regard to their treatment by their respective home countries, are matters controlled by their home countries and not the United States. As the district court held, JA , such injuries are therefore not redressable in a habeas proceeding against the United States, as any possible remedy would depend entirely on the actions of third parties, Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992). Thus, petitioners cases were properly dismissed as moot and the district court s ruling should be affirmed. B. Equitable Principles Weigh Heavily Against Extending Habeas to Former Detainees. Continued jurisdiction post-release would be an improper use of habeas authority in this context. As the Supreme Court explained in Munaf v. Geren, [h]abeas corpus is governed by equitable principles. 553 U.S. 674, 693 (2008) (quoting Fay v. Noia, 372 U.S. 391, 438 (1963)). The Court held that even where a United States citizen has constitutional and statutory habeas rights, as was the case there, prudential concerns, such as comity and the orderly administration of criminal justice, may require a federal court to forgo the exercise of its habeas corpus power. Id. (internal citation omitted) (quoting Withrow v. Williams, 507 U.S. 680, 686 (1993), and Francis v. Henderson, 425 U.S. 536, 539 (1976)). A court

29 Case: Document: Filed: 12/22/2010 Page: 29 possessing jurisdiction is not bound in every case to issue the writ when equitable principles counsel against doing so. Id. The Court in Munaf found that substantial equitable principles barred the district court from issuing the writ in that case. Id. at 693. First, the Court noted that the petitioners were not seeking the core equitable remedy of habeas corpus release from custody. Id. at Instead, they were seeking a court order requiring the United States to shelter them from the sovereign government seeking to have them answer for alleged crimes committed within that sovereign s borders, which was a form of relief both significantly more intrusive on the Executive and also unprecedented in the nature of habeas relief. Id. at Second, the Court found that important equitable concerns, including concerns about the judiciary interfering with a [foreign] sovereign s recognized prerogative to apply its criminal law and concerns about unwarranted judicial intrusion into the Executive s ability to conduct military operations abroad, counseled against the continuation of the petitioners habeas claim. Id. at 700. Given the existence of these equitable factors and the fact that the petitioners were not seeking core habeas relief, the Court affirmed the dismissal of the habeas claims in Munaf. Id. at 705. As this Court has explained, in applying Munaf, [i]t is a longstanding principle of our jurisprudence that [t]he jurisdiction of [a] nation, within its own

30 Case: Document: Filed: 12/22/2010 Page: 30 territory, is necessarily exclusive and absolute. Kiyemba II, 561 F.3d at 515 (quoting Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812)). Munaf therefore 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. Id. Judicial inquiry into a recipient country s basis or procedures for prosecuting or detaining a transferee from Guantanamo would implicate not only norms of international comity but also... separation of powers principles. Id. Similar reasoning applies here. As was the case in Munaf, petitioners here are not requesting the core remedy of habeas release from custody. They have already received that remedy. As was the case in Munaf, substantial equitable principles counsel against the judiciary interfering with the actions of sovereign states and the Executive here. Petitioners are in the territory of foreign sovereigns, subject to the exclusive and absolute jurisdiction of the governments of Sudan and Afghanistan. Any alleged restraints or complaints about their status in their respective home countries are the sovereign matters of those nations. Accordingly, their requests for continued adjudication of their cases, and the remedies that they seek here, are no more than requests for this Court to attempt to influence the behavior of those foreign sovereigns

31 Case: Document: Filed: 12/22/2010 Page: 31 Moreover, since 2002, more than 600 individuals have been detained at Guantanamo and later released. Dep t of Defense, Detainee Transfer Announced (September 16, 2010), available at release.aspx?releaseid= Under petitioners view of their habeas rights, each of these more than 600 former detainees could potentially have a right to seek postrelease relief to litigate the lawfulness of their prior detention. To continue to litigate petitioners claims here, as well as the claims of hundreds of others who have been released, would improperly require the Executive and the courts to devote enormous resources to litigate the lawfulness of the prior detention. Such litigation involves large quantities of classified material, and some of the most sensitive issues of law and national security. Although there is a constitutional necessity of adjudicating the habeas claims of those who remain in United States custody at Guantanamo, we respectfully submit that it would be improper to continue to proceed with those cases once the relief of release from United States custody has, through legitimate and carefully developed procedures, been afforded to the detainee. This Court should make clear here that, under the analysis set forth in Munaf, continued habeas litigation in this context is barred by fundamental equitable principles

32 Case: Document: Filed: 12/22/2010 Page: 32 II. PETITIONERS COLLATERAL CONSEQUENCES AND EQUITABLE ARGUMENTS LACK MERIT. Petitioners make various general arguments for why their cases, and the cases 5 of all of the other former Guantanamo detainees, are not moot. As the district court properly held, none of these arguments prevents the mootness of these cases, because as the government s declarations demonstrate, once a detainee has been released from United States custody, the United States exerts no continuing control over him and any restrictions he suffers are solely the result of actions by third parties. Moreover, the equitable nature of habeas, as discussed in Munaf, strongly suggests that courts should refrain from extending the writ to individuals no longer in United States custody. A. Reference to Alleged Collateral Consequences of Detention Does Not Save Petitioners Claims from Mootness. Petitioners have argued that, despite already receiving the core remedy available to a habeas petitioner their release from the custody and control of the 5 All of petitioners arguments -and the reasons these arguments fail to prevent mootness apply generally to all habeas petitioners who have been released from Guantanamo, and petitioners have identified no facts that distinguish their cases with respect to mootness from those of any other former detainee. Indeed, the district court considered each of petitioners precise arguments about collateral consequences explicitly in its opinion, and properly found them unavailing. JA

33 Case: Document: Filed: 12/22/2010 Page: 33 United States they now suffer collateral consequences of detention that present a continuing case or controversy under Article III. The collateral consequences doctrine, to the extent applicable here at all, recognizes that release from custody generally moots a habeas petition, but not if the petitioner suffers some concrete and continuing injury other than the now-ended incarceration. Qassim v. Bush, 466 F.3d 1073, 1076 (D.C. Cir. 2006). This doctrine does not save petitioners habeas claims from being moot. It does not apply to former detainees of Guantanamo, and even if it could apply, petitioners present no redressable collateral consequences that would prevent mootness. 1. The Collateral Consequences Doctrine Does Not Apply to Habeas Claims of Former Guantanamo Detainees. The federal habeas statutes confer jurisdiction on the federal courts to grant writs of habeas corpus to petitioners who are in custody pursuant to the judgment of a state court, 28 U.S.C. 2254, or under or by color of the authority of the United States, 28 U.S.C. 2241(c). The collateral consequences doctrine developed out of these specific statutory provisions, as the Supreme Court interpreted the in custody provisions, based on the specific text and legislative history of those statutes, to only require that petitioners be in custody at the commencement of their habeas action. Spencer v. Kemna, 523 U.S. 1, 7 (1998) ( Spencer was incarcerated

34 Case: Document: Filed: 12/22/2010 Page: 34 by reason of the parole revocation at the time the petition was filed, which is all the in custody provision of 28 U.S.C requires. ); Carafas v. LaVallee, 391 U.S. 234, 239 (1968) ( The 1966 amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody. At one point, the new [habeas statute] speaks in terms of release from custody or other remedy. ). It was for this reason that the Court held that statutory substantive habeas rights were not extinguished upon a petitioner s release. See Spencer, 523 U.S. at 7 8; Carafas, 391 U.S. at 239; see also Qassim, 466 F.3d at 1078 (citing Spencer and applying the collateral consequences doctrine under 28 U.S.C to Guantanamo habeas petition filed before the passage of the Military Commissions Act). However, those provisions, and the cases interpreting them, are inapplicable here. First, unlike a criminal prosecution, detainees held under the laws of war are not convicted of a criminal act nor subject to a criminal sentence. Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion). As Hamdi explained, [t]he purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Id. It is neither punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character. Id. (quoting W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920))

35 Case: Document: Filed: 12/22/2010 Page: 35 Therefore, comparison to a doctrine established in the context of individuals with criminal convictions is generally inapt. Moreover, following the Military Commissions Act ( MCA ), 28 U.S.C. 2241(e)(1), and Boumediene, petitioner s substantive habeas rights are founded on the Constitution, not the federal habeas statutes. In Kiyemba II, this Court held that when Boumediene invalidated the jurisdiction-limiting provision of 28 U.S.C. 2241(e)(1), it necessarily restored the status quo ante, in which detainees at Guantanamo had the right to petition for habeas under Kiyemba v. Obama, 561 F.3d 509, 512 n.2 (D.C. Cir. 2009) ( Kiyemba II ). This Court did not, however, hold that 2241 governs petitioner s substantive habeas rights or grants statutory rights to have a case heard after release from United States custody. Notably, in Boumediene, the Supreme Court explicitly [did] not hold that the habeas proceedings for Guantanamo detainees must duplicate habeas statutory proceedings under 2241 in all respects. Boumediene v. Bush, 553 U.S. 723, 792 (2008). Instead, the Boumediene Court held only that the core, constitutionally required elements of habeas remain, notwithstanding Congress s repeal of statutory habeas for Guantanamo detainees. See id. at 799 (Souter, J., concurring) ( Subsequent legislation eliminated the statutory habeas jurisdiction over these claims, so that now there must be constitutionally based jurisdiction or none at all. )

36 Case: Document: Filed: 12/22/2010 Page: 36 Nor could such an interpretation of Kiyemba II be squared with the unique nature of these proceedings. In addressing the nature of the habeas proceedings of detainees, this Court has clearly held that the district courts are not bound by the procedural limits created for other detention contexts. Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010). The Supreme Court has recognized that courts must maintain sufficient flexibility to accommodate the unique context presented by these war-time military detention cases, including with respect to the extent of the habeas rights and remedies available. Boumediene repeatedly confirms that the constitutional habeas rights of Guantanamo detainees are, at their core, about challenging the legality of executive detention. Boumediene, 553 U.S. at 771 ( Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. ). The Court specifically noted, in elaborating the purpose of the Suspension Clause, that [t]he Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account, and quoted Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), for the proposition that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody. Id. at 745. Nowhere did the Court suggest that the constitutional habeas right it was affirming could extend to individuals no longer in United States custody or control

37 Case: Document: Filed: 12/22/2010 Page: 37 This interpretation of Boumediene is confirmed by the holding of the Supreme Court in Munaf, discussed above, which was decided on the same day as Boumediene. Munaf emphasized the equitable nature of habeas, and noted that the nature of the relief sought by the habeas petitioners [an injunction preventing their release from custody] suggests that habeas is not appropriate in these cases, because [h]abeas is at its core a remedy for unlawful executive detention and [t]he typical remedy for such detention is, of course, release. Munaf, 553 U.S. at 693. Similarly, the nature of relief sought by petitioners here remedying alleged collateral consequences of prior detention that are solely under the control of foreign sovereigns suggests that habeas is not appropriate relief in their cases, as they have already received the typical remedy of detention release. Moreover, even if petitioners had statutory habeas claims, the equitable principles discussed in Munaf and above including concerns about the judiciary interfering with the authority of foreign sovereigns and the sensitive national security determinations of the Executive, as well as the enormous expenditure of judicial and government resources involved in litigating such cases counsel heavily against extending the collateral consequences doctrine to the claims of former Guantanamo detainees. The government respectfully submits that this Court should not extend jurisdiction to adjudicate individually the myriad claimed collateral consequences of

38 Case: Document: Filed: 12/22/2010 Page: 38 detention of multitudes of Guantanamo detainees when the government has repeatedly demonstrated that former detainees are no longer subject to the continued custody and control of the United States and therefore are not actually subject to collateral consequences remediable in habeas. 2. Former Guantanamo Detainees Are Not Subject To Any Redressable Collateral Consequences of Detention. Even if the collateral consequences doctrine could apply, petitioners cases would still be moot. Under the collateral consequences doctrine, petitioners bear the burden of identifying some concrete and continuing injury... if the suit is to be maintained. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Such an injury must be the tangible, concrete effect of detention and must be susceptible to judicial correction to prevent a habeas case from becoming moot. McBryde v. Comm. to Review Cir. Council Conduct & Disability Orders of the Judicial Conf. of the U.S., 264 F.3d 52, 57 (D.C. Cir. 2001). Petitioners make several arguments with respect to the collateral consequences doctrine: (i) that they do not need to demonstrate actual collateral consequences; (ii) that they are subject to stigma from their detention; (iii) that they are subject to continuing restrictions on their liberties in Sudan and Afghanistan; and (iv) that they are subject to other restrictions by operation of United States law with respect to their

39 Case: Document: Filed: 12/22/2010 Page: 39 immigration status, 8 U.S.C. 1182(a)(3)(B), Pet. Br. 5, and inclusion on the no fly list, 49 U.S.C (j)(2)(C)(v), Pet. Br , and that the United States might target them with military force, Pet. Br. 43. All of these alleged collateral consequences either flow from the independent, discretionary acts and judgments of a foreign sovereign or private parties, Spencer, 523 U.S. at 7 16, or are simply not redressable in a habeas proceeding, and therefore do not save their petitions from mootness. To the extent petitioners have legitimate continuing complaints about their prior detention, a habeas proceeding is not the proper vehicle to air those complaints. 6 i. Petitioners first contend that they need not demonstrate any actual collateral consequences in order to avail the benefits of that doctrine, relying on Carafas v. LaVallee, 391 U.S. 234 (1968), and Sibron v. State of New York, 392 U.S. 40 (1968), for the proposition that the consequences of a conviction alone are sufficient to support habeas relief for a person who no longer suffers restrictions on his liberty. Pet. Br Hamad has filed a separate suit for damages against various former and current government officials in their individual capacities based, in part, on his prior detention. Hamad v. Gates, et al. (W.D. Wash. No. 10-cv-00591). Hamad has not argued in his opening brief that any limitation on his ability to maintain such an action because of his prior status designation, see, e.g., Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 110 (D.D.C. 2010), constitutes a relevant collateral consequence. As a result, any such argument is waived. Catawba County v. EPA, 571 F.3d 20, 38 (D.C. Cir. 2009)

40 Case: Document: Filed: 12/22/2010 Page: 40 Petitioners reliance on these cases is misplaced. As explained above, petitioners have not been convicted, but instead were previously detained under the laws of war before being voluntarily released by the United States. Both Carafas and Sibron involved criminal convictions and sentences, which were penal in nature, with accompanying civil disabilities. Carafas, 391 U.S. at 237 ( It is clear that petitioner s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror. ); Sibron, 392 U.S. at ( New York expressly provides by statute that Sibron s conviction may be used to impeach his character should he choose to put it in issue at any future criminal trial... and that it must be submitted to a trial judge for his consideration in sentencing should Sibron again be convicted of a crime.... ). Criminal cases such as Carafas and Sibron invariably involve established legal collateral consequences of criminal conviction which are not present in the wartime detention context. Federal courts regularly consider the statutory habeas claims of petitioners who have been released after serving sentences imposed as a result of a criminal conviction when certain well-known civil disabilities attach to that conviction, and the Supreme Court has expressly and repeatedly declined to extend