Gitmo Detainee Loses |Bid for Habeas Review

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‘     WASHINGTON (CN) – A federal judge denied a Guantanamo Bay detainee”s request that he order the Defense Department to review his enemy combatant status, the court holding it lacks jurisdiction over the matter.
     U.S. District Judge Royce Lamberth also rejected Mohammedou Ould Salahi”s claims that the government has stopped him from accessing his legal materials, and wrongly removed several personal possessions, including a computer, books and family photographs, from his cell.
     Salahi is accused of recruiting two of the 9/11 hijackers, and of allegedly helped al-Qaida buy equipment and transfer money.
     He turned himself in to Mauritanian authorities in November 2001 for questioning about a series of foiled terrorist attack in Jordan, and against U.S. targets including Los Angeles International Airport.
     Those authorities in turn, handed Salahi over to the FBI, and he eventually was transferred to Guantanamo Bay, where he has been held without charge ever since.
     Since then, Salahi has come close to being released only once, but in 2010, the D.C. Circuit vacated a lower court”s order that would have set him free.
     The latest ruling in his Salahi”s case, focuses primarily on his request for a hearing before the Periodic Review Board — the administrative body tasked with recommending whether detainees are safe for release or transfer — and whether it should be considered as a habeas petition.
     Judge Lamberth ultimately determined it shouldn”t and therefore that the court lacked jurisdiction to hear the claim.
     Salahi relied on the U.S. Supreme Court”s 2001 decision in INS v. St. Cyr to argue his request should be considered a habeas petition.
     In St. Cyr, the high court determined a Congressional law did not strip District Courts of the ability to hear habeas petitions from deportable aliens.
     But Lamberth distinguished Salahi”s petition from the decision in St. Cyr by noting Salahi did not point to a statute that affirms his right to periodic review. In fact, the only statute that might – The Authorization for the Use of Military Force – does not grant this right, Lamberth wrote.
     Furthermore, the D.C. Circuit has warned plaintiffs in the past to not read St. Cyr too broadly, Lamberth wrote.
     “St. Cyr determined that petitioner”s claim – that he was eligible for discretionary relief from removal – was one a common-law judge with the power to issue a writ of habeas corpus could have answered in 1789,” Lamberth wrote. “Here, by contrast, even if we ignore the distinction between a statute which creates rights and an Executive Order which does not, what respondents dispute is not petitioner”s eligibility for PRB consideration, but rather whether he may obtain an order compelling the government to fix a date for that consideration.”
     The government”s argument, which it supported by citing decisions in Skinner v. Switzer and Davis v. U.S. Sentencing Commission, was that simply having the hearing before the Periodic Review Board would not have guaranteed Salahi”s release, thereby answering the habeas question.
     Lamberth agreed, saying Skinner and Davis show “probabilistic” or “discretionary” claims are not considered under habeas.
     “Finally, the fact that Skinner and Davis seem to except probabilistic claims from the category of habeas – and did not consider St. Cyr controlling contrary authority – fatally undermines petitioner”s assertion that [Aamer v. Obama] held that habeas encompasses literally any claim that some aspect of executive decision violates that law,” Lamberth wrote.
     In conclusion, Lambert wrote he was “largely satisfied” with the government”s claims Salahi has adequate access to legal materials. Salahi claimed he lacked access to “many” legal materials, and that he found a form for chain of custody in one of his legal binders, sparking concerns that the government had read some of his privileged materials, according to the opinion.
     But Lamberth found it was likely the government simply stuffed the chain of custody form into the binder without reading anything. He also stuck with precedent in denying relief to Salahi after the prisoner claimed the government wrongfully removed personal items from his cell, according to the opinion.
     The Department of Justice declined to comment on the opinion.
     “We”re very disappointed by this decision and are figuring out the next steps in our ongoing effort to end Mr. Salahi”s unlawful detention,” said Dror Ladin, the American Civil Liberties Union attorney representing Salahi, in a written statement. ‘