Guantanamo Bay Habeas Jurisprudence

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Case Summary

Name: Basardh
Date: 04/17/2009
Judge: Ellen Segal Huvelle
Full Case document: pdf

Summary:
BACKGROUND

Basardh is a Yemeni national arrested at some classified time. He had been held at Guantanamo in the seven years leading up to this order. He was beaten by other detainees who believe he was a spy and was threatened many times to be killed by other Detainees. The transcripts of his Combatant Status Review Tribunal revealed that he cooperated his entire stay while at Guantanamo. The Government alleged that because Basardh was “part of” the Taliban or al Qaeda when he was captured, he could be held under the AUMF regardless of the danger of him engaging in hostilities in the future.

Charges

The Government contends that the “Authorization for the Use of Military Force, as interpreted by Hamdi, authorizes the government to imprison petitioner regardless of whether he continues to pose any threat of returning to the battlefield so long as the United States is still engaged in hostilities with al-Qaeda or the Taliban, and since the hostilities are still ongoing, Basardh’s [redacted] irrelevant to the determination of whether he is lawfully detained.” (7)

a. “Considering the totality of the cirucmstnaces, the Court concludes that the government has failed to meet its burden of establishing that Basardh’s continued detention is authorized under the AUMF’s directive that such force be used ‘in order to prevent future acts of international terrorism.’ The undisputed facts establish that Basardh’s [redacted] is known to the world, and thus, any ties with the enemy have been severed, and any realistic risk that he could rejoin the enemy has been foreclosed. As a result, the Executive’s asserted justification for his continued detention lacks a basis in fact as well as in law.” (10)

Merits Topics involved:

Abuse, coercion and torture
"…he was subjected to physical attacks by other detainees … ‘beaten by other detainees who believe he is a spy’ and ‘was threatened many times to be killed by other Detainees.’ … [the transcripts of his Combatant Status Review Tribunal and Administrative Review Board proceedings] reveal, in unredacted form, that Basardh ‘cooperated his entire stay while [at Guantanamo].’” (3-4)

“The Government has acknowledged that Basardh has suffered physical attacks and has received credible death threats as a result of [redacted]..” (4)

Future Harm
"“In addition, throughout this period [redacted] the government has encouraged Basardh [redacted]. These encouragements were reinforced by the written notice provided to each detainee prior to his ARB proceeding. This notice advised the detainee that in making its determination whether a detainee could be released or transferred from Guantanamo, the ARB ‘will consider … if you are working with the United States government trying to help.’ According to the government, this notice was given to petitioner prior to each of his ARB hearings in 2005, 2006, and 2007, pursuant to the Department of Defense procedures governing the administrative review process that ‘permitted each enemy combatant … to explain why he is no longer a threat to the United States and its allies …’ As recognized by these procedures, the law of war permits ‘detention for the practical purpose of preventing the enemy from rejoining the conflict’ and therefore, a detainee’s need for continued detention (or a ‘threat assessment’) was to be conducted annually ‘to determine if the enemy combatant remains a threat to the United States …’ Despite the ARB’s recognition that whether a detainee presented a current threat, including whether he is [redacted] is relevant to a determination as to whether he should be ‘released, transferred, or continued to be detained …’” (4-6, internal citations omitted)

“As conceded by the government, its authority to imprison individuals at Guantanamo Bay is derived from the AUMF, which the government contends is ‘informed by the principles of the laws of war.’ … The statutory language of the AUMF, which defines the Executive’s detention authority in plain and unambiguous terms, speaks only to the prevention of ‘future acts of international terrorism against the United States.’ It does not authorize unlimited, unreviewable detention. Instead the AUMF requires some nexus between the force (i.e., detention) and its purpose (i.e. preventing individuals form rejoining the enemy to commit future hostile acts). Accordingly, the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.” (7-8)

“In both set of rules [CSRT and ARB proceedings for determining whether continued detention of a detainee is justified] the government is obligated to perform ongoing threat assessments of detainees based upon the detainee’s current status.” (9)

“Based on the clear language of the AUMF, as interpreted in Hamdi, this Court must conclude that Basardh’s current likelihood of rejoining the enemy is relevant to whether his continued detention is authorized under the law.” (9)"

Petitioner's Statements
“In reaching its decision, the Court has relied upon classified interviews of petitioner and others conducted by law enforcement and intelligence personnel, as well as upon classified information derived from other intelligence sources and methods. The Court also reviewed ex parte and in camera a top secret-SCI document.” (1)

“Just as the Court considers ‘the most current evidence supporting a detainee’s detention’ … the Court must also consider the most current evidence relating to whether a detainee is no longer a threat.” (9-10)

Release Order
“The Court further orders the government to take all necessary and appropriate diplomatic steps to facilitate petitioner’s release forthwith. The Court, however, must deny petitioner’s request that he be released into this country, or be transported to a safe haven in light of Kiyemba v. Obama.” (11)