No Easy Answers
Sunday, July 22, 2007
Paracha - Brief in Support of Invalidating Finding of CSRT
Source:
http://www.scotusblog.com/movabletype/archives/ParachaOpening.pdf
Commentary at ScotusBlog: Opening brief in first DTA review
The opening pages of the brief contain a concise summary of the various GTMO detainee cases, including their present procedural posture.
The body of the brief lays out Paracha's fact pattern as well as some details of the legal process that has been available to him to challenge the finding that he is an enemy combatant - a "worst of the worst" in the cohort of terrorists.
[ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 17, 2007]
NO. 06-1038
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Saifullah Paracha,
Petitioner,
v.
Robert M. Gates, Secretary of Defense,
Respondent.
ORIGINAL ACTION UNDER DETAINEE TREATMENT ACT OF 2005
BRIEF FOR PETITIONER SUPPORTING INVALIDATION
OF FINAL DECISION OF COMBATANT STATUS REVIEW TRIBUNAL
GAILLARD T. HUNT DAVID H. REMES
1409 Gleason Street JASON M. KNOTT
Silver Spring, MD 20902 BRENT T. STARKS
ENRIQUE ARMIJO
CLIVE STAFFORD SMITH COVINGTON & BURLING LLP
ZACHARY KATZNELSON 1201 Pennsylvania Avenue, NW
JUSTICE IN EXILE Washington, DC 20004-2401
636 Baronne Street 202-662-6000
New Orleans, LA 70113
504-558-9867
Attorneys for Petitioner
July 17, 2007
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Petitioner is Saifullah Paracha.
Respondent is Robert M. Gates, Secretary of Defense.
No persons have appeared as amici curiae.
B. Rulings Under Review
Final decision of Combatant Status Review Tribunal ("CSRT") Panel 24,
dated December 8, 2004, that Petitioner is properly designated as an enemy com-
batant. (App. 1.)
Order of Director, CSRTs, dated December 21, 2004, concurring in the deci-
sion of the CSRT and certifying that decision is final. (App. 68.)
C. Related Cases
This case has not previously been before this Court other than for disposition
of procedural motions. The cases described below present the same issues as, or
issues similar to, the issues in this case, and the government is a party to all of the
cases. Petitioner is a party only in this case and the case described in paragraph 1.
Petitioner's habeas action. On November 17, 2004, Petitioner filed a peti-
tion for a writ of habeas corpus in the U.S. District Court for the District of Co-
lumbia. Paracha v. Bush, No. 1-04-civ.-02022 (PLF) (D.D.C.). Petitioner and his
wife filed an amended petition on December 10, 2004. Petitioner and his wife
filed two appeals from orders of the District Court, D.C. Cir. 05-5194 and 05-5333.
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On April 9, 2007, a panel of this Court remanded the appeals to the district court
with instructions to dismiss the petitions for lack of jurisdiction based on the panel
decision in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted,
2007 WL 1854132 (U.S. June 29, 2007). Petitioner and his wife expect to file a
petition for certiorari in the Supreme Court seeking review of the panel's order of
April 9, 2007. Petitioner's certiorari petition is due August 7, 2007.
Other Detainee Habeas Actions. Numerous other Guantánamo detainees
have filed habeas corpus actions in U.S. District Court for the District of Colum-
bia. Judge Richard Leon granted the government's motion to dismiss two of these
actions, Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), and Senior Judge
Joyce Hens Green denied in material part the government's motion to dismiss ele-
ven other habeas actions, In re Guantánamo Detainee Cases, 355 F. Supp. 2d 443
(D.D.C. 2005). A divided panel of this Court dismissed the actions for want of ju-
risdiction under the Military Commissions Act of 2006 ("MCA") in Boumediene,
now under review in the Supreme Court. An original habeas action raising similar
issues is pending in the Supreme Court, In re Ali, No. 06-1194 (filed Mar. 6, 2007).
Detainee DTA Actions. Numerous other Guantánamo detainees have filed
original actions under the Detainee Treatment Act of 2005 ("DTA"). In Bismullah
v. Gates, No. 06-1197, and Parhat v. Gates, No. 06-1397, a panel of this Court will
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address DTA scope-of-review and protective-order issues. The panel heard argu-
ment on May 15, 2007.
Hamdan. The Guantánamo detainee in this habeas action challenges the
constitutionality of the military commissions established by the MCA and MCA
provisions (1) purporting to eliminate habeas actions by Guantánamo detainees and
claims by such detainees under the Geneva Conventions, and (2) limiting the de-
tainees to review under the DTA. The district court dismissed the petitioner's ac-
tion for lack of jurisdiction under the MCA, Hamdan v. Rumsfeld, 464 F. Supp. 2d
9 (D.D.C. 2006). Pending in this Court is the petitioner's suggestion of initial en
banc hearing, filed June 6, 2007, Hamdan v. Gates, Case No. 07-5042 (D.C. Cir.).
Pending in the Supreme Court are petitioner's petition for certiorari before judg-
ment, and motions aimed at securing a grant of the petition, filed on July 9, 2007,
Hamdan v. Gates, Case No. 07-15 (S. Ct.).
Al-Marri. The detainee in this habeas action is a permanent lawful resident
alien who challenges his detention as an enemy combatant in the Consolidated Na-
val Brig in South Carolina. The district court dismissed the petitioner's action, Al-
Marri ex rel. Berman v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006), and a divided
panel of the Fourth Circuit reversed, Al-Marri v. Wright, 481 F.3d 160 (4th Cir.
2007). The government filed a suggestion of en banc rehearing on June 27, 2007.
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TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............ ii
A. Parties and Amici ...................................................................................... ii
B. Rulings Under Review.............................................................................. ii
C. Related Cases ............................................................................................ ii
TABLE OF CONTENTS...........................................................................................v
TABLE OF AUTHORITIES ................................................................................. viii
GLOSSARY........................................................................................................... xiii
JURISDICTIONAL STATEMENT ..........................................................................1
CONSTITUTIONAL, STATUTORY, AND TREATY PROVISIONS...................1
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .............................1
STATEMENT OF FACTS ........................................................................................2
D. Introduction................................................................................................2
E. Petitioner ....................................................................................................3
F. Petitioner's CSRT Hearing. .......................................................................7
G. Judicial Proceedings.................................................................................14
SUMMARY OF ARGUMENT ...............................................................................17
STANDARD OF REVIEW .....................................................................................19
I. THE MCA'S ELIMINATION OF HABEAS JURISDICTION VIOLATES
THE SUSPENSION CLAUSE. ...........................................................................20
A. Petitioner Has Standing To Claim Suspension Clause Violations. .........20
1. As a lawful permanent resident of the United States, Petitioner has
rights protected by the Suspension Clause. .................................................20
a) Petitioner is a lawful permanent resident.........................................20
b) Lawful permanent residents are protected by habeas corpus and the
Due Process Clause..................................................................................22
2. Even if not an LPR, Petitioner has rights protected by the Suspension
Clause...........................................................................................................24
a) Habeas has historically been available to all who are not citizens of
a country at war with the United States. ..................................................24
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b) Habeas has historically been available at places within a nation's
exclusive control. .....................................................................................26
c) The Suspension Clause is not an individual right but instead limits
government action....................................................................................27
d) Guantánamo detainees have fundamental rights that the government
cannot deny. .............................................................................................28
B. Under the Government's Construction of DTA § 1005(e)(2), Congress
Has Unlawfully Suspended Habeas Without Providing An Adequate
Substitute..........................................................................................................29
1. CSRT proceedings are an inadequate substitute for habeas. ..............29
2. DTA Review is an inadequate substitute for habeas...........................32
II. THE MCA'S ELIMINATION OF GENEVA CONVENTIONS CLAIMS
VIOLATES THE SUSPENSION CLAUSE AND EX PARTE KLEIN. .............33
A. Stripping Habeas Courts of the Power to Consider Valid Legal Claims
Related to the Legality of Detention Violates the Suspension Clause. ...........33
B. Section 5(a)'s Limitation on the Applicable Law Courts May Consider in
Petitioner's Pending Habeas Case Violates Klein. ..........................................35
III. THE MCA AND DTA VIOLATE THE BILL OF ATTAINDER
CLAUSE AND THE FIFTH AMENDMENT'S GUARANTEE OF EQUAL
PROTECTION.....................................................................................................36
A. The MCA and DTA Are Classic Bills of Attainder. ...............................36
B. The MCA and DTA As Construed by the Government Violate Equal
Protection. ........................................................................................................39
IV. THE GOVERNMENT'S INDEFINITE IMPRISONMENT OF
PARACHA, A LAWFUL PERMANENT RESIDENT ABDUCTED FROM
THAILAND, AS AN ENEMY COMBATANT VIOLATES THE AUMF. ......41
V. THE PROCEDURES UNDER WHICH PARACHA'S CSRT WAS
CONDUCTED DID NOT COMPLY WITH THE DTA'S REQUIRED
STANDARDS AND PROCEDURES.................................................................44
A. Paracha's CSRT Was Not Conducted Under the Standards That the DTA
Contemplates and Was Therefore Invalid Per Se. ...........................................44
B. Paracha's CSRT Failed to Provide Safeguards Required by the DTA. ..44
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C. The CSRT Procedures As Applied Do Not Provide A Basis For
Determining Under the DTA Whether the CSRT's Decision Was Supported
By A Preponderance Of The Evidence............................................................45
D. The CSRT Procedures As Applied Violated The DTA's Requirement
That A Detainee Be Given An Opportunity To Rebut The Presumption In
Favor Of The Government's Evidence............................................................46
VI. PARACHA'S CSRT WAS INVALID BECAUSE IT FAILED TO
COMPLY WITH THE WOLFOWITZ ORDER, CSRT PROCEDURES AND
THE CONSTITUTION AND LAWS OF THE UNITED STATES...................48
A. Paracha Did Not Meet the Definition of Enemy Combatant in the
Wolfowitz Order. .............................................................................................49
B. The CSRT and Its Staff Failed to Comply with the CSRT Procedures,
Resulting in a Finding that Paracha Was an Enemy Combatant Based on
Evidence That Likely Was Obtained by Torture or Coercion.........................50
CONCLUSION........................................................................................................56
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TABLE OF AUTHORITIES1
CASES
Al-Marri ex rel. Berman v. Wright, 443 F. Supp. 2d 774
(D.S.C. 2006) .............................................................................................7
Al-Marri v. Wright, 481 F.3d 160 (4th Cir. 2007)...........................................7
Al Odah v. United States, 321 F. 3d 1134 (D.C. Cir. 2003)............................7
Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................45
Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007)................1, 2, 23, 30, 33
Campos v. INS, 961 F.2d 309 (1st Cir. 1992)................................................29
Carafas v. LaVallee, 391 U.S. 234 (1968) ....................................................46
Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986)..................................27
Clark v. Jeter, 486 U.S. 456 (1988) ..............................................................45
Concrete Pipe & Prods. v. Constr. Laborers Pension Trust,
508 U.S. 602 (1993) ...........................................................................36, 37
Cook v. United States, 288 U.S. 102 (1933)..................................................40
Crawford v. Washington, 541 U.S. 36 (2004).........................................37, 38
Cummings v. Missouri, 71 U.S. 277 (1866) ......................................42, 43, 44
Downes v. Bidwell, 182 U.S. 244 (1901) ......................................................34
Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) ....................42, 43
Graham v. Richardson, 403 U.S. 365 (1971)................................................46
1
Cases primarily relied upon are marked with asterisks.
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Griffin v. Illinois, 351 U.S. 12 (1956) ...........................................................45
Groppi v. Leslie, 404 U.S. 496 (1971) ..........................................................35
In re Guantánamo Detainee Cases,
355 F. Supp. 2d 433 (D.D.C. 2005) ...............................................2, 52, 54
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) .............................22, 40, 45, 48
Hamdan v. Rumsfeld, 464 F. Supp. 2d 9
(D.D.C. 2006) .............................................................................................3
*Hamdi v. Rumsfeld, 542 U.S. 507 (2004)......... 25, 35, 36, 46, 47, 48, 50, 56
Harris v. Nelson, 394 U.S. 286 (1969)..............................................25, 36, 38
Hawk v. Olson, 326 U.S. 271 (1945).............................................................25
Hodges v. Humkin, 80 Eng. Rep. 1015 (1613)..............................................34
*INS v. St. Cyr, 533 U.S. 289 (2001) ..........................................31, 33, 39, 40
Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998) .....................................29
Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005).......................................2
King v. Schiever, 97 Eng. Rep. 551 (K.B. 1759)...........................................31
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) ......................................27
Lynce v. Mathis, 519 U.S. 433 (1997) ...........................................................44
*Ex parte Milligan, 71 U.S. 2 (1866) ......................................................31, 47
Murray v. The Schooner Charming Betsy, 6 U.S.
(2 Cranch) 64 (1804) ................................................................................51
Plaut v. Spendthrift Farm, 514 U.S. 211 (1995) ...........................................41
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Plyler v. Doe, 457 U.S. 202 (1982) ...............................................................29
Preiser v. Rodriguez, 411 U.S. 475 (1973) ...................................................36
Hamdan v. Rumsfeld, 127 S. Ct. 2749 (2006) .........................................48, 49
Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002)...........................................7
*Rasul v. Bush, 542 U.S. 466 (2004) ........................... 7, 8, 31, 32, 33, 34, 45
*Reid v. Covert, 354 U.S. 1 (1957) ...................................................30, 34, 35
Rex v. Mitter, 1 Indian Dec. 210 (1775) ........................................................32
Rex v. Turlington, 97 Eng. Rep. 741 (1761)..................................................34
Saint Fort v. Ashcroft, 329 F.3d 191 (1st Cir. 2003)...............................29, 40
Selective Service System, 468 U.S. at 852 .....................................................43
Service v. Dulles, 354 U.S. 363 (1957) .........................................................56
Shaughnessy v. United States
ex rel. Mezei, 345 U.S. 206 (1953)...........................................................27
*Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997).......................................27, 29
Sommersett v. Stewart, 20 How. St. Tr. 1 (K.B. 1772) .................................31
*Swain v. Pressley, 430 U.S. 372 (1977) ......................................................35
Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003).............................................29
United States ex rel. Accardi v. Shaughnessy,
347 U.S. 260 (1954) ...........................................................................56, 57
United States v. Brown, 381 U.S. 437 (1965) .........................................42, 44
United States v. Grintjes, 237 F.3d 876 (7th Cir. 2001)................................53
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*United States v. Klein, 80 U.S. (13 Wall.) 128 (1872)................................41
United States v. Lovett, 328 U.S. 303 (1946) ................................................42
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ......................29, 34
United States v. Villato, 2 U.S. 370 (C.C. Pa. 1797).....................................31
Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) ............................................40
Ex parte Watkins, 28 U.S. 193 (1830)...........................................................33
Woodby v. INS, 385 U.S. 276 (1996) ............................................................27
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ...............................................29, 46
Zadvydas v. Davis, 533 U.S. 678 (2001).................................................28, 44
STATUTES AND TREATIES
U.S. Const. Art. I. Sec. 9, Cl. 2......................................................................35
U.S. Const. Amdt. 5.......................................................................................33
8 U.S.C. § 1101(a)(20) ..................................................................................27
8 U.S.C. § 1227..............................................................................................27
28 U.S.C. § 1441............................................................................................29
28 U.S.C. § 2241..................................................................................7, 40, 45
28 U.S.C. § 1350............................................................................................62
50 U.S.C. § 21 ...............................................................................................31
Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (2001) ................................................47
Detainee Treatment Act of 2005, Pub. L. No. 109-148,
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119 Stat. 2680 (2005) ....................................................................... passim
Military Commissions Act of 2006, Pub. L. No. 109-366,
120 Stat. 2600 (2006) ....................................................................... passim
Fed. R. App. P. 32(a)(7)(C) ...........................................................................64
Geneva Convention (III) Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316..........1, 48, 49, 62
Geneva Convention (IV) Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949,
[1956] 6 U.S.T. 3516, 75 U.N.T.S. 287 ...................................1, 48, 49, 62
U.N. Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, opened for signature
Dec. 10, 1984, G.A. Res. 39146, Annex, 39 U.N. GAOR Supp.
No. 51, U.N. Doc. A/39/51 (1984) ..........................................................62
MISCELLANEOUS
Headquarters, Dep't of the Army, FM 2-22.3, Human Intelligence
Collector Operations (September 2006) ..................................................59
Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction
of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev.
1362 (1953)...............................................................................................41
Jane Mayer, The Hidden Power, The New Yorker (Jul. 3, 2006)...................6
Mark Denbeaux and Joshua Denbeaux, No-Hearing Hearings ......................9
Mark Denbeaux, et al., Report on Guantnamo Detainees: A Profile
of 517 Detainees Through Department of Defense Data.........................15
Gordon England, Implementation of Combatant Status Review
Tribunal Procedures for Enemy Combatants Detained at U.S.
Naval Base Guantanamo Bay, Cuba (Jul. 29, 2004) ...................... passim
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Paul Wolfowitz, Order Establishing Combatant Status Review
Tribunal (July 7, 2004)..................................................................... passim
GLOSSARY
App. Appendix
AUMF Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat.
224 (2001)
CSRT Combatant Status Review Tribunal
DTA Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2680
(2005)
LPR Lawful permanent resident
MCA Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.
2600 (2006)
PR Personal Representative
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JURISDICTIONAL STATEMENT
Insofar as Rule 28(a)(4)(A) may be applicable, the "subject-matter jurisdic-
tion" of the CSRT and that of the Director, CSRT, rests on an order of the Deputy
Secretary of Defense dated July 7, 2004. The Order cites no statutory authority.
This Court has jurisdiction under DTA § 1005(e)(2).
CONSTITUTIONAL, STATUTORY, AND TREATY PROVISIONS
The addendum contains pertinent portions of the U.S. Constitution; the
DTA; the MCA; the AUMF; Geneva Conventions (III) and (IV) Relative to the
Treatment of Prisoners of War, art. 3 (Common Article 3); and U.N. Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the government must provide habeas relief or an equivalent
remedy before it may detain Saifullah Paracha, a lawful permanent resident of the
United States, indefinitely at the U.S. Naval Station Guantánamo Bay as an enemy
combatant.
2. Whether precluding Paracha from raising claims under the Geneva
Conventions in this action would violate the Suspension Clause and the doctrine of
Ex parte Klein, which forbids the courts from ignoring applicable laws.
3. Whether Paracha's CSRT, conducted before Respondent or his prede-
cessor adopted the standards and procedures required by the DTA, violated the
Constitution and laws of the United States and the standards and procedures re-
quired by the DTA.
4. Whether Paracha's CSRT violated the Constitution and laws of the
United States as well as procedures under which it was conducted because the
CSRT staff failed to collect all relevant evidence and submit exculpatory evidence,
and because the CSRT failed to review the reliability of secret hearsay evidence
used against Paracha which in all likelihood was obtained by torture or coercion.
STATEMENT OF FACTS
D. Introduction
In the wake of the September 11, 2001 terror attacks, the United States took
into custody thousands of foreign nationals all over the world. Beginning in Janu-
ary 2002, the U.S. transported more than 800 of these foreign nationals to deten-
tion facilities at U.S. Naval Station Guantánamo Bay, Cuba. About 360 detainees
are held there today. The United States kidnapped Petitioner, Saifullah Paracha, in
Bangkok, Thailand, in July 2003; spirited him from Bangkok to prisons in Af-
ghanistan; and finally brought him to Guantánamo in September 2004.
Virtually all of the Guantánamo detainees, including Paracha, are held based
on their designation by the government as "enemy combatants." But contrary to
repeated statements by high government officials that the detainees are "the worst
of the worst" and "vicious killers," the CIA in August 2002 concluded that most of
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the Guantánamo detainees "didn't belong there."2 In January 2005, Major General
Jay Hood, then commander at the prison, admitted that "sometimes we just didn't
get the right folks," and that these "folks" were still in Guantánamo because
"[n]obody wants to be the one to sign the release papers. . . . There's no muscle in
the system."3 There was enough "muscle in the system," however, to designate
nearly 500 of the 535 detainees who had CSRT hearings as "enemy combatants."4
E. Petitioner
Saifullah Paracha, nearly 60, is a citizen of Pakistan.5 He suffers from heart
disease, diabetes, high blood pressure, skin disorder, and gout.6
In 1971, Paracha came to the United States, where he lived in Queens and
attended the New York Institute of Technology.7 In 1980, Paracha was granted a
permanent resident visa known as a "green card" which entitled him to live in
the United States permanently.8 While in the United States, Paracha established
Third World Broadcasting, a weekly 90-minute program on WNJU, New Jersey
2
Jane Mayer, The Hidden Power 44, The New Yorker (July 3, 2006).
3
Christopher Cooper, Detention Plan: In Guantanamo, Prisoners Languish in
a Sea of Red Tape, Wall Street Journal (Jan. 26, 2005).
4
Status of All Guantanamo Detainees Reviewed; 38 To Be Released (Mar. 31,
2005), available at http://usinfo.state.gov/dhr/Archive/2005/Apr/01-23233.html.
5
CSRT Decision Report Exhibit D-b at 1, App. 57.
6
Saifullah Aff. (Dec. 8, 2004), App.57.
7
Pet'r's Ans. to Resps.' Mot. to Dismiss and for J. as a Matter of Law, Ex. 1
("Aff. of Farhat Paracha") ¶¶ 2, 4, Paracha v. Bush, No. 04-2022 (PLF) (D.D.C.
filed Feb. 9, 2005), App. 69; CSRT Decision Report Exhibit D-b at 1, App. 57.
8
Aff. of Farhat Paracha Ex. A, App. 71.
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that broadcast Pakistani television programs in Urdu for the local Pakistani com-
munity.9 Paracha also bought Globe Travel Services (Pakistan) Ltd., a New York
corporation located at Rockefeller Center, and established Sana Travel, Inc., lo-
cated on Fifth Avenue, in New York. The travel agencies facilitated travel be-
tween the United States and Pakistan.10
In 1977, Paracha's wife, Farhat, who is also a citizen of Pakistan, came to
the United States, where she earned a master's degree at NYU and met Paracha;
the couple married in 1979 and have four children.11 Paracha's wife also holds a
green card,12 as do his four children.13 Four of Paracha's brothers and sisters live
in the United States; two hold green cards, and two are naturalized citizens; an-
other with a green card died recently.14 Paracha also has many nieces and nephews
living in the United States who are American citizens by birth or naturalization.15
9
Aff. of Saifullah Paracha (Jul. 7, 2007), App. 83; Summarized Sworn De-
tainee Statement, CSRT Panel 24 (Dec. 8, 2004) ("Summarized Paracha Satte-
ment"), App. 10-11, 14.
10
Id., App. 83-84.
11
Id., App. 83. Aff. of Farhat Parach, App. 69.
12
Id., Ex. B, App.72.
13
Aff. of Saifullah Paracha, App. 83.
14
Pet'r's Ans. to Resps.' Mot. to Dismiss and for J. as a Matter of Law, Ex. 4
("Aff. of Mohammad Paracha") ¶¶ 2, 4, Paracha v. Bush, No. 04-2022 (PLF)
(D.D.C. filed Feb. 9, 2005), App. 76.
15
Aff. of Mohammad Paracha ¶¶ 4-7, App. 76-77.
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According to a nephew's sworn statement, "in terms of family connections, Saiful-
lah Paracha is as much or more American than Pakistani."16
In 1986, Paracha moved back to Pakistan with his family.17 Paracha re-
turned to Pakistan to oversee the Pakistani operations of his U.S. travel agencies.18
Thereafter, Paracha and Charles Anteby, an American partner, established an ex-
port-import business, which did business under the name of Chanco Buying
Agents in the United States and International Merchandise (Pvt.) Ltd. in Pakistan.19
The business acted as a buying agent in Pakistan for American retailers, such as
Wal-Mart and K-Mart, placing orders for garments and other merchandise made in
Pakistan.20 Paracha oversaw factory operations in Pakistan; Anteby lined up buy-
ers in the United States.21 While in Pakistan, Paracha also set up a television pro-
duction company, Universal Broadcasting. The company produced plays and pro-
grams designed to minimize hostilities caused by religious antagonism.22
16
Id. ¶ 8, App. 77.
17
Aff. of Farhat Paracha ¶ 5, App. 70.
18
Aff. of Saifullah Paracha, App. 83-84.
19
Summarized Paracha Statement, App. 13; Pet'r's Ans. to Resps.' Mot. to
Dismiss and for J. as a Matter of Law, Ex. 2 ("Aff. of Syed Abdul Mahasin") ¶¶ 3-
8, Paracha v. Bush, No. 04-2022 (PLF) (D.D.C. filed Feb. 9, 2005), App. 73-75;
Aff. of Saifullah Paracha ¶ 7, App. 84.
20
Summarized Paracha Statement, App. 13; Aff. of Syed Abdul Mahasin ¶¶ 4-
7, App. 74; Aff. of Saifullah Paracha ¶ 7, App. 84.
21
Aff. of Saifullah Paracha ¶ 7, App. 84.
22
CSRT Decision Report Exhibit R-3 at 3, App. 26.
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Between 1986 and 1999, Paracha visited the United States about once a year
with his wife to superintend his business interests here and visit his brothers and
sisters, their children, and other relatives.23 In 1995 and 1996, the couple lived
with relatives in Connecticut and New York while Paracha's wife underwent
medical treatment.24 On each of their visits to the United States, Paracha and his
wife entered on their permanent resident visas.25 Paracha and his wife intend to
spend their retirement in the United States, close to their large extended family.
In July 2003, Paracha traveled to Bangkok to meet with individuals he had
been led to believe were buyers from K-Mart.26 On his arrival, Paracha was
seized, blindfolded, hand-cuffed, leg-cuffed, and thrown into a waiting car.27 He
was then transported to the American military base at Bagram, Afghanistan.
There, Paracha was forced to endure solitary confinement for fifteen months "un-
der extremely bad conditions." Then, in September 2004, Paracha was transferred
to Guantánamo. Since his arrival, he has been in solitary confinement.28 The gov-
23
Aff. of Farhat Paracha ¶ 6, App. 70.
24
Aff. of Farhat Paracha ¶ 8, App. 70; see also Pet'r's Ans. to Resps.' Mot. to
Dismiss and for J. as a Matter of Law, Ex. 3 ("Aff. of Maria Khan") ¶¶ 1-3, Para-
cha v. Bush, No. 04-2022 (PLF) (D.D.C. filed Feb. 9, 2005), App. 78.
25
Aff. of Farhat Paracha ¶ 6, App. 70.
26
Pet'r's Mot. for TRO. or Prelim. Inj., Ex. 1 ("Aff. of G.T. Hunt") ¶ 1, Para-
cha v. Bush, No. 04-2022 (PLF) (D.D.C. filed Nov. 17, 2004), App. 35.
27
CSRT Procedures Enclosure (3), App. 6; CSRT Decision Report Exhibit D-
b at 1, App. 57; Saifullah Aff. (Dec. 8, 2007), App. 58.
28
Id.
-6-
ernment refused to acknowledge to Paracha's lawyer in the United States that
Paracha was being held at Guantánamo until November 2004.29
F. Petitioner's CSRT Hearing.
On November 26, 2004, Combatant Status Review Tribunal (CSRT) Panel
24 was convened to determine whether Paracha was an "enemy combatant."30 For
purposes of the CSRT proceedings, an "enemy combatant" was defined as "an in-
dividual who was part of or supporting Taliban or al Qaeda forces, or associated
forces that are engaged in hostilities against the United States or its coalition part-
ners." Id.31 CSRT rules characterize CSRT proceedings as "non-adversarial."32
Inasmuch as the CSRT rules make it impossible for a detainee to rebut the gov-
ernment's allegations against him and otherwise defend himself, the government's
characterization of the CSRT proceedings as "non-adversarial" is all too apt.
29
Letters from G.T. Hunt to Rear Adm. McGarrah (Oct. 21, 2004 and Oct. 26,
2004), App. 39-40.
30
CSRT Decision Report Cover Sheet, App. 1.30 Under the Deputy Secre-
tary's order ("Wolfowitz Order"), a CSRT was to be a panel composed of three
military officers that would review a detainee's status as an "enemy combatant."
Id. § a. T
31
Paul Wolfowitz, Order Establishing Combatant Status Review Tribunal (Ju-
ly 7, 2004) ("Wolfowitz Order"), www.defenselink.mil/news/Jul2004/d20040707
review.pdf.
32
CSRT Procedures Enclosure (1) § B ("CSRT Process").
-7-
The CSRT rules deny detainees counsel or any other advocate.33 Instead, the
rules provide a Personal Representative to "assist the detainee."34 The PR is not an
advocate for the detainee; the detainee's communications with the PR are not con-
fidential; and the PR may disclose anything Paracha told him to the CSRT.35 Para-
cha was assigned a PR, who met with him on December 2, 2004.36 During the
meeting, which occurred six days before the CSRT hearing, the PR read the gov-
ernment's allegations to Paracha and explained her limited role.37
The government rested its claim that Paracha was properly designated as an
"enemy combatant" on twelve allegations:
3.a. The Detainee supported the Taliban and al Qaida against the United
Statement and its coalition partners.
3.a-1. The Detainee was involved in an al Qaida plan to smuggle explosives
into the United States.
3.a-2. The Detainee "held for safekeeping" large amounts pf al Quaida
money given to him by known al Quaida operatives.
3.a-3. The Detainee, at the request of an al Quida operative, researched off-
shore companies for investment possibilities.
3.a-4. The Detainee associated with known high-level al Quaida operatives.
33
CSRT Procedures Enclosure (3) § D; see also Mark Denbeaux and Joshua
Denbeaux, No-Hearing Hearings at 15, available at http://law.shu.edu/news/fi-
nal_no_hearing_hearings_report.pdf.
34
CSRT Process § C.2-5.
35
Id.; CSRT Procedures Enclosure (3) § D.
36
CSRT Decision Report Exhibit D-a, App. 56.
37
Id.; CSRT Procedures Enclosure (3) § D; Aff. of Saifullah Paracha (Dec. 8,
2004), App. 58.
-8-
3.a-5. The Detainee recommended to an al Qaida operative that nuclear
weapons should be used against U.S. troops and suggested where these
weapons might be obtained.
3.a-6. The Detainee assisted al Quida in locating houses for al Quaida mem-
bers and their families.
3.a-7. The Detainee offered to al Quida his media facilities for Urdu transla-
tion of extremist materials, including statements from Usama Bin Laden.
3.a-8. Al Qaida invested money in a company owned by the Detainee.
3.a-9. The Detainee had a discussion with a high level al Qauida facilitator
about getting chemicals and explosives into a coalition partner's national
boundaries.
3.a-10. The Detainee met with Usama Bin Laden n 1999 and 2000, two
times.
3.a-11. The Detainee met with two high level al Qauida officials and knew
they were "wanted men."38
The evidence on which the government relied as support for these allega-
tions was classified.39 Paracha therefore did not know the basis for the govern-
ment`s allegations and could not rebut the evidence on which the government re-
lied.40 He could only respond to nine of the allegations (3.a, 3.a-1, 3.a-2, 3.a-3,
3.a-4, 3.a-5, 3.a-8, 3.a-9, 3.a-11) with general denials, equivalent to answers to a
complaint, before evidence has been offered. He was able to respond to three of
38
CSRT Decision Report Exhibit R-1, App. 27-28.
39
CSRT Decision Report Enclosure (1) at 2, App. 3.
40
Paracha was given an "Unclassified Summary of Evidence," which his
CSRT later found was "not persuasive in that it provid[ed] conclusory statements
without supporting unclassified evidence." In this summary, the government as-
serted that Paracha "supported the Taliban and al Qaida against the United States
and its coalition partners."
-9-
the allegations (3.a-6, 3.a-7, 3.a-10) more concretely, and his responses were plau-
sible on their face.41 But Paracha was in no position to obtain evidence to support
his responses, and he could not rebut the evidence on which the government relied
to counter his responses. Despite the fact that Paracha lacked counsel and had only
six days' notice of his CSRT hearing, Paracha prepared and submitted to his CSRT
a handwritten statement answering each of the government's allegations.42
At his meeting with the PR, Paracha had requested that letters he had written
to U.S. officials before his capture be provided to the CSRT; Paracha believed the
letters showed he did not sympathize with terrorists.43 One was a letter to Presi-
dent Bush and other government officials proposing a solution to the festering
problems that led to the September 11, 2001, terror attacks44; the other was a letter
to the U.S. Ambassador to Pakistan, expressing his willingness to address issues
relating to criminal charges against his son, Uzair.45 The CSRT deemed these let-
ters to be irrelevant and did not seek to obtain them, even though an FBI agent aat
Guantánamo evidently had a copy of Paracha's letter to President Bush.46 The
CSRT did allow the introduction into the record of affidavits attestion to Paracha's
41
CSRT Hearing Tr., App. 8-9; id. at 10-14; Saifullah Aff. (Dec. 8, 2004),
App. 57-64; see also App. 3-4.
42
CSRT Decision Report Exhibit D-b at 3-4, App. 59-60.
43
Id., Enc. (1) at 2, App. 3.
44
Aff. of Saifullah Paracha (Dec. 8, 2004), App. 61.
45
CSRT Decision Report, App. 66, CSRT Hearing Tr., App. 7.
46
CSRT Hearing Tr., App. 16.
- 10 -
character and denying that Paracha could have supported terrorists in any way.47
But when Paracha asked what law applied to him and what law governed his
CSRT hearing, the Panel's head responded:
Let me clarify that; you do understand that this is an administrative
hearing, and this is not a legal proceeding. I do know you had some
questions about the legality of your detention. That would be referred
to other organizations of the governmnet, but you will be receiving
mnore specific instructions shortly of how to bring your question to
U.S. courts.48
In a further exchange shortly thereafter, Paracha renewed his request for clarifica-
tion of the legal basis for his detention:
Detainee: Your honor, my question is [whether] your Executive Or-
der [is] applicable around the earth.
Tribunal President: It is a global war on terrorism.
Detainee: I know sir, but you are not the master of the earth, sir.
After Paracha finished testifying, he was escorted out of the room and the
CSRT reviewed the Government Evidence in closed session; the government se-
cret evidence was all secret hearsay evidence.49 The CSRT operated under a pre-
sumption that the Government Evidence (which does not include exculpatory evi-
dence) was "genuine and accurate," as required by the CSRT Procedures.50 Later
47
App. 20-26, 39-40.
48
CSRT Hearing Tr., App. 15.
49
CSRT Decision Report Enclosure (3) at 12, App. 17.
50
CSRT Procedures Enclosure (1) § 11.
- 11 -
that same day, the CSRT determined, purportedly "by a preponderance of the evi-
dence," that Paracha was "affiliated with al Qaida" and therefore was properly de-
tained as an enemy combatant.51 The Recorder prepared a record of the proceed-
ings that did not include Government Information not presented to the Tribunal.52
The PR reviewed that record five days later and offered no comments.53 A week
after that, the Legal Advisor conducted a "legal sufficiency" review and found that
the CSRT had "substantially complied" with the Wolfowitz Order and CSRT Pro-
cedures.54 On December 21, Admiral McGarrah, as Director of the CSRTs, con-
curred in the CSRT's decision.55
There is no indication that the government enabled the CSRT to assess the
quality of the evidence against Paracha. Was evidence obtained by coercion or tor-
ture or through proffered blandishments? Was the evidence obtained from a
trusted source? Did the source have a selfish motive for incriminating the ac-
cused? How could the CSRT's determinations be meaningful if it had to assume to
51
CSRT Decision Report Cover Sheet, App. 1.
52
CSRT Procedures Enclosure (2) § C.8. The Recorder is a commissioned of-
ficer with TOP SECRET security clearance, who was to gather and present to the
CSRT panel "all relevant evidence." CSRT Process § C.2.
53
CSRT Decision Report Enclosure (5), App. 64.
54
Legal Advisor, Legal Sufficiency Review of Combatant Status Review Tribu-
nal for Detainee ISN # [redacted] (Dec. 20, 2004), at 1, App. 66. The Legal Advi-
sor was responsible for "reviewing each Tribunal decision for legal sufficiency."
CSRT Process § C.2.
55
App. 68.
- 12 -
be true every datum presented to it by the government? Raw intelligence is worth-
less intelligence. The adage "garbage in, garbage out" has special resonance here.
In addition, the CSRT also did not have before it exculpatory statements
made in a criminal case involving Paracha's son, Uzair. In that case, the govern-
ment submitted unclassified summaries of expected testimony by Majid Khan and
Ammar al Baluchi. The CSRT asked Saifullah Paracha about those individuals
during his testimony.56 At the time of Paracha's CSRT, Khan and al Baluchi were
secretly held in CIA custody, where they likely were subjected to "harsh" interro-
gation measures.57 According to the summaries in Uzair's case, Khan stated that al
Qaeda did not invest in Saifullah Paracha's business ventures, contradicting one of
the key accusations made in Paracha's CSRT.58 Moreover, al Baluchi stated that
Paracha had never been "tasked by al Qaeda" to do anything for the group, that
Paracha did not know that "Uzair" (Khalid Sheikh Mohammad) was part of al
Qaeda, and that that Paracha had "no relation to" al Qaeda.59 On the contrary, ac-
56
United States v. Paracha, No. 03-CR-1197 (SHS), 2006 WL 12768, at *11-
13 (S.D.N.Y. Jan. 3, 2006); Unclassified Transcript of CSRT Proceeding.
57
Brian Ross and Richard Esposito, CIA's Harsh Interrogation Techniques
Described, ABC News (Nov. 18, 2005), available at http://abcnews.go.com/WNT/
Investigation/story?id=1322866; see http://www.odni.gov/announcements/content/
DetaineeBiographies.pdf.
58
App. 18.
59
App. 19.
- 13 -
cording to al Baluchi, Paracha was simply an unwitting businessman.60 The gov-
ernment did not provide these summaries to Paracha's CSRT, so they are not part
of the government's proposed record.
G. Judicial Proceedings
On November 17, 2004, Paracha filed a habeas petition the U.S. District
Court for the District of Columbia.61 The petition alleged that Paracha was being
detained at Guantánamo in violation of the Constitution, laws, and treaties of the
United States. Citing Paracha's status as a lawful permanent resident of the United
States, the petition alleged that his detention violated his rights under the Due
Process Clause.
The government moved to dismiss Paracha's petition. The government ar-
gued that Paracha could not claim the protections of the Due Process Clause be-
cause (the government claimed) Paracha had abandoned his lawful permanent resi-
dent status by moving to Pakistan in 1986 and remaining in residence there. The
government further argued that even if Paracha retained his lawful permanent resi-
dent status, his CSRT proceeding afforded him all the process he was due. Finally,
the government moved to stay Paracha's case pending this Court's resolution of
60
Id.
61
Paracha v. Bush, No. 04-2022 (PLF).
- 14 -
certain threshold issues in Khalid/Boumediene v. Bush and Al Odah v. United
States.
On March 23, 2005, the district court granted the stay motion. Paracha ap-
pealed the district court's stay order. (D.C. Cir. No. 05-5194.) Paracha argued,
among other things, that, because he is a lawful permanent resident, he stood on a
different footing than the detainees in Khalid/Boumediene and Al Odah, and this
Court's resolution of those cases would not control his action. Paracha also ap-
pealed an order of the district court denying his motion for release from solitary
confinement. (D.C. Cir. No. 05-5333.)
While Paracha's appeals were pending, Congress enacted the DTA. The
DTA purported to strip the courts of jurisdiction over any habeas or other actions
made by aliens determined to be properly detained at Guantánamo as enemy com-
batants. In lieu of habeas actions, the DTA provided for judicial review of CSRT
determinations in the D.C. Circuit. On January 14, 2006, two weeks after the DTA
became law, Paracha brought this DTA action in this Court. On April 19, 2006,
the Court ordered that Paracha's appeals be held in abeyance pending the resolu-
tion of the Khalid/Boumediene and Al Odah appeals.
On June 29, 2006, the Supreme Court held in Hamdan v. Rumsfeld that the
jurisdiction-stripping provision of the DTA did not apply to cases (like Paracha's)
that were pending on the date of enactment. 126 S. Ct. 2749, 2762-69 (2006). The
- 15 -
Court also found that Article 3 of the Geneva Conventions was judicially enforce-
able case even though al Qaeda is not a signatory to the Conventions. Id. at 2795.
On October 17, 2006, the President signed into law the MCA. MCA § 7(a)
stripped the courts of jurisdiction over habeas actions brought by aliens held any-
where by the United States. Section 5(a) of the MCA barred Guantánamo detain-
ees from challenging their detention as violative of the Geneva Conventions.
On February 20, 2007, this Court issued its decision in Boumediene, 476
F.3d 981. The Court held that the MCA had stripped federal courts of jurisdiction
to entertain pending habeas actions brought by Guantánamo detainees. The Court
further held that Guantánamo detainees lacked standing to challenge MCA § 7(a)
as violative of the Due Process and Suspension Clauses because, as aliens held
outside the sovereign territory of the United States, the detainees lacked any consti-
tutional rights. Id. at 988-94. The detainees then petitioned for certiorari, which
this Court initially denied, on April 2, 2007, but granted, on July 29, 2007.
On April 9, 2007, citing its decision in Boumediene, this Court vacated Para-
cha's appeals for lack of jurisdiction and ordered the District Court to dismiss his
habeas action. The Court's mandate issued on June 27, 2007. Paracha moved to
recall the mandate on July 2, 2007. Paracha expects to petition the Supreme Court
for certiorari to review the Court's ruling. His petition is due August 7, 2007.
- 16 -
On March 8, 2006, Paracha moved in his DTA action to strike classified
documents from the record before this Court or, in the alternative, to permit him
and his counsel to review them in unredacted form. That same day, he moved to
consolidate this case with the appeals from his habeas case and moved to produce
Majid Khan, Ammar Al-Baluchi, and Khalid Sheikh Mohammad for testimony.
On March 21, 2006, he filed a dispositive motion seeking a ruling that he is not an
"enemy combatant" as a matter of law. The Court has ruled only on Paracha's dis-
positive motion, denying it on Apr. 9, 2007, without prejudice to his subsequent
claims in this case.
SUMMARY OF ARGUMENT
Although the Supreme Court has under review this Court's decision in
Boumediene, and although this Court has been asked to reconsider that decision en
banc in Hamdan, the Court should reach the merits and decide this case now be-
cause Paracha stands on a different legal footing than the Guantánamo detainees in
those cases. Unlike those detainees, Paracha is a lawful permanent resident of the
United States. He therefore enjoys the same constitutional rights as a citizen. Be-
cause this Court's decision in Boumediene hinged on the fact that the detainees in
those cases were aliens, pure and simple, the Court's rationale for its decision is
inapplicable here. Because Paracha unquestionably has constitutional rights, the
Court must address the merits of his Suspension Clause claims.
- 17 -
The Suspension Clause prohibits Congress from suspending the privilege of
the writ of habeas corpus, except in conditions of invasion or rebellion, unless it
provides an adequate substitute for habeas. The Supreme Court has held that an
adequate substitute for habeas is one that provides relief equivalent to habeas. The
only relief available to Paracha under MCA § 7 is the judicial review provided by
DTA § 1005(e)(2). Neither MCA § 7 nor DTA § 1005(e)(2) can survive Suspen-
sion Clause challenge unless DTA review provides relief equivalent to habeas.
Under the government's construction, MCA § 7 and DTA § 1005(e)(2) cannot sur-
vive Suspension Clause challenge because, thus construed, DTA § 1005(e)(2)
makes this Court little more than a rubber-stamp for final decisions of a CSRT, and
the CSRT process is stacked against the detainee.
Nor did the government follow its own procedures in this case. The DTA
requires the Court to determine whether the CSRT's decision is "supported by a
preponderance of the evidence." DTA § 1005(e)(2)(C)(i). The Recorder did not
present the Court with all of the evidence in the government's possession bearing
on the allegations against Paracha. The DTA also requires the Court to determine
whether the detainee has been afforded a fair opportunity to rebut "the presumption
in favor of the government's evidence." Id. A detainee who was denied access to
all adverse evidence before the CSRT has not had a fair opportunity to rebut that
presumption.
- 18 -
DTA § 1005(e)(2) requires, at a minimum, that (1) the Court review all evi-
dence in the government's possession that may be relevant to a decision "that an
alien is properly detained as an enemy combatant;" (2) the detainee be afforded ac-
cess to all such evidence in order to rebut, if possible, the "presumption in favor of
the Government's evidence;" and (3) the detainee be afforded an opportunity, with
the assistance of counsel, to present evidence in his favor. Any more limited con-
struction of DTA review and any review more limited than habeas review
would render the statute unconstitutional. Unless the Court construes DTA
§ 1005(e)(2) to authorize plenary and de novo review of the CSRT's decision in
this case, DTA § 1005(e)(2) and MCA § 7 cannot survive Suspension Clause chal-
lenge.
STANDARD OF REVIEW
This Court's review of issues of law is de novo. The Court does not have
occasion to review facts in this case, because the CSRT process was constitution-
ally deficient; but to provide an adequate substitute for habeas, any review of the
facts in this case must also be de novo and plenary. Harris v. Nelson, 394 U.S.
286, 298 (1969) ("petitioners in habeas corpus proceedings ... are entitled to care-
ful consideration and plenary processing of their claims including full presentation
of the relevant facts"); Hawk v. Olson, 326 U.S. 271, 274 (1945).
- 19 -
ARGUMENT
I. THE MCA'S ELIMINATION OF HABEAS JURISDICTION
VIOLATES THE SUSPENSION CLAUSE.
Absent a construction of DTA § 1005(e)(2) that would provide relief equiva-
lent to habeas, MCA § 7 violates the Suspension Clause.
A. Petitioner Has Standing To Claim Suspension Clause Violations.
1. As a lawful permanent resident of the United States, Peti-
tioner has rights protected by the Suspension Clause.
a) Petitioner is a lawful permanent resident.
The government asserted in its briefs below that Paracha stands on the same
legal footing as the Guantánamo detainees in Boumediene because he has aban-
doned his status as a lawful permanent resident of the United States. The govern-
ment asserts that he abandoned his LPR status by moving to Pakistan in 1986. The
government argues that his long stay in Pakistan establishes abandonment as a
matter of law. The government is mistaken. As discussed below, the length of an
LPR's time abroad is not dispositive. Whether an alien has abandoned his LPR
status is a question of fact to be determined after notice and hearing. Abandon-
ment cannot be established by counsel's assertions in a party's brief.
As discussed above, Paracha returned to Pakistan to supervise the Pakistan
end of his U.S.-Pakistan travel agency business; later, he also supervised the Paki-
stan end of his U.S.-Pakistan export-import business; he and his wife, who also is
also a LPR, maintain a large extended family in the United States and intend to
- 20 -
move back to the United States, close to their extended family, when Paracha re-
tires. See supra at 5. Paracha has more than a colorable claim that he continues to
be a lawful permanent resident of the United States.
The Immigration and Nationality Act ("INA") provides that an alien with
lawful permanent resident status has been "lawfully accorded the privileges of re-
siding permanently in the United States as an immigrant in accordance with the
immigration laws." 8 U.S.C. § 1101(a)(20). At least in the case of an alien who
has not disclaimed his LPR status, LPR status cannot be revoked absent a formal
hearing. See Kwong Hai Chew v. Colding, 344 U.S. 590, 597 (1953) (revocation
of LPR status and exclusion from United States without a hearing violative of due
process); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)
("temporary absence from our shores cannot constitutionally deprive a returning
lawfully resident alien of his right to be heard").
During such a hearing, the government must prove to a neutral factfinder by
"clear, unequivocal and convincing evidence" that the alien LPR has abandoned
his LPR status. In the case of an LPR who has left the country, the factfinder must
determine whether the LPR was on a "temporary" visit abroad from which he in-
tended to return:
Some of the factors that could be used to determine whether an alien
harbored a continuous, uninterrupted intention to return in addition to
the alien's testimony include the alien's family ties, property holdings,
and business affiliations within the United States, the duration of the
- 21 -
alien's residence in the United States, and the alien's family, property
and business ties in the foreign country.
Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986); see also Woodby v. INS, 385
U.S. 276, 286 (1996); see also Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997)
("When an applicant has a colorable claim to returning resident status . . . the INS
has the burden of proving he is not eligible for admission to the United States.").
Neither the district court nor a competent administrative agency has re-
viewed Paracha's status as an LPR. Nor has he voluntarily informed the INS of an
intent to abandon his status. Indeed, before the instant litigation, the government
never challenged Paracha's immigration status at all. Accordingly, he presump-
tively remains a lawful permanent resident of the United States as a matter of both
constitutional and immigration law.
b) Lawful permanent residents are protected by habeas
corpus and the Due Process Clause.
Legal permanent resident aliens who have been admitted to the United States
enjoy full rights under the Constitution, including the right to due process of law in
connection with deprivations of life, liberty or property. See Zadvydas v. Davis,
533 U.S. 678, 690 (2001). When Paracha became a lawful permanent resident, he
became "invested with the rights guaranteed by the Constitution to all people
within our borders." United States v. Verdugo-Uriquidez, 494 U.S. 259, 271
(1990); see also id. at 265 (the Constitution's "people" includes those who have
- 22 -
"developed sufficient connection with this country to be considered part of that
community."); Plyler v. Doe, 457 U.S. 202, 210, (1982); Yick Wo v. Hopkins, 118
U.S. 356, 369 (1886).
LPRs also enjoy the same protections against unlawful detention guaranteed
by the Great Writ as do citizens. See Campos v. INS, 961 F.2d 309, 316 (1st Cir.
1992) ("lawful permanent resident aliens . . . enjoy, of course, the full protection of
the United States Constitution"); Saint Fort v. Ashcroft, 329 F.3d 191, 197 (1st Cir.
2003) ("[t]he writ of habeas corpus has been employed by non-citizens for centu-
ries in both the United States and Britain"); Tineo v. Ashcroft, 350 F.3d 382, 389
(3d Cir. 2003) (entertaining habeas petition from LPR under 28 U.S.C. § 1441);
Singh, 113 F.3d at 1514 (same); Jean-Baptiste v. Reno, 144 F.3d 212, 219 (2d Cir.
1998) ("Without the ability to seek a writ of habeas corpus under § 2241, certain
lawful permanent residents . . . would have no opportunity to address serious con-
stitutional issues."). Since their constitutional rights attach as a result of their sta-
tus and ties to the United States, rather than the locus of their arrest or detention,
the Writ's due process protections also reach those citizens and LPRs held abroad.
Reid v. Covert, 354 U.S. 1, 6 (1957) (plurality opinion) ("When the Government
reaches out to punish a citizen who is abroad, the shield which the Bill of Rights
and other parts of the Constitution provide to protect his life and liberty should not
be stripped away just because he happens to be in another land.").
- 23 -
As an LPR, Paracha enjoys the full panoply of constitutional protections that
the Due Process Clause and Great Writ provide. To that extent, this Court's deci-
sion in Boumediene has no bearing on the dispositive issue raised in this case:
whether the Detainee Treatment Act provides a valid substitute for the writ to ha-
beas corpus for a lawful permanent resident who enjoys full constitutional rights.
Boumediene's constitutional holding addressed only habeas cases brought by "for-
eign nationals" who were "without property or presence within the United States."
Boumediene, 476 F.3d at 984, 99091.
2. Even if not an LPR, Petitioner has rights protected by the
Suspension Clause.
Even absent his LPR status, Paracha may assert that the MCA violated the
Suspension Clause by revoking his right to habeas review. Boumediene held oth-
erwise, but the issue is under review by the Supreme Court in that case, and Para-
cha will also seek initial hearing en banc.
a) Habeas has historically been available to all who are
not citizens of a country at war with the United States.
The Suspension Clause bars the MCA's incursion on the writ of habeas cor-
pus. "[A]t the absolute minimum, the Suspension Clause protects the writ `as it
existed in 1789.'" INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v.
Turpin, 518 U.S. 651, 663-64 (1996)). The writ, as it existed in 1789, empowered
the courts to inquire into the basis of the detention of any person other than an en-
- 24 -
emy alien, regardless of whether the person was an alien or alleged to be a prisoner
of war. Rasul, 542 U.S. at 480; Ex parte Milligan, 71 U.S. 2, 130-31 (1866); King
v. Schiever, 97 Eng. Rep. 551 (K.B. 1759); see also Case of the Hottentot Venus,
104 Eng. Rep. 344 (K.B. 1810) (detention of a South African national); Sommer-
sett v. Stewart, 20 How. St. Tr. 1 (K.B. 1772) (detention of an African slave pur-
chased in Virginia); United States v. Villato, 2 U.S. 370, 1 (C.C. Pa. 1797) (deten-
tion of a Spanish national). In Milligan, the Court addressed a detainee's challenge
to the government's assertion that he was a prisoner of war and found that the de-
tainee was entitled to trial in a civilian court because he was not such a prisoner.
71 U.S. at 131. Similarly, in Schiever, a Swedish citizen was permitted to seek ha-
beas relief from his detention by the British Navy, even though he was a foreign
citizen and was alleged to be a prisoner of war. 97 Eng. Rep. 551.
Paracha is not an enemy alien but instead is a citizen of a country with which
the United States is at peace. See 50 U.S.C. § 21 (an enemy alien is a citizen of a
foreign nation against whom the United States has declared war). Paracha is not
even alleged to be a prisoner of war. Paracha therefore has at least the same right
to seek judicial inquiry through habeas into his detention as did Milligan and
Scheiver.
- 25 -
b) Habeas has historically been available at places within
a nation's exclusive control.
The historical reach of habeas extended to places like Guantánamo. In Ra-
sul, the Supreme Court explained that "the reach of the writ depended not on for-
mal notions of territorial sovereignty, but rather on the practical question of `the
exact extent and nature of the jurisdiction or dominion exercised in fact by the
Crown.'" 542 U.S. at 482 (quoting Ex parte Mwenya, [1960] 1 Q.B. 241, 303
(C.A.) (Lord Evershed, M.R.)). In England, the courts extended the writ to places
that, while outside the formal jurisdiction of the Crown, were under the Crown's
control. See Bourn's Case, Cro. Jac. 543, 79 Enq. Rep. 465 (K.B. 1619) (writ of
habeas corpus extended to detainees held in the Cinque Ports, a confederation of
cities exempted from the ordinary jurisdiction of the courts); Sir Matthew Hale,
The History of the Common Law of England 121 (C. Gray Ed. 1971) (describing
reach of habeas to Duchy of Normandy, outside of the Realm of England); Rex v.
Mitter, 1 Indian Dec. 210 (1775) (writ of habeas corpus extended to India even
when it was not under formal sovereignty of Great Britain). Although in Rasul the
Supreme Court only found that the habeas statute reached Guantánamo, the writ
would have extended there without any statute, because Guantánamo is territory
under the "exclusive jurisdiction and control" of the United States. Rasul, 542
U.S. at 476. Accordingly, the Suspension Clause ensures Guantánamo detainees'
ability to invoke the writ. St. Cyr, 533 U.S. at 301.
- 26 -
c) The Suspension Clause is not an individual right but
instead limits government action.
Further, as Judge Rogers recognized in her Boumediene dissent, the Suspen-
sion Clause does not merely confer an individual right but is a structural limitation
on the power of Congress. See 476 F.3d at 996-97. Thus, unlike the Fourth and
Fifth Amendments, which secure rights of "the people" or "persons," the Suspen-
sion Clause secures a remedy for unjustified Executive detention: "[T]he great ob-
ject of [the writ] is the liberation of those who may be imprisoned without suffi-
cient cause. It is in the nature of a writ of error, to examine the legality of the
commitment." See, e.g., Ex parte Watkins, 28 U.S. 193, 202 (1830).
The writ of habeas corpus is "a writ antecedent to statute, . . . throwing its
root deep into the genius of our common law." Rasul, 542 U.S. at 473 (quoting
Williams v. Kaiser, 323 U.S. 471, 484 n.2 (1945)). At common law, even though
detainees lacked individual rights, the writ of habeas corpus required the detainee's
custodian to offer a legal and factual basis for the detention. See 1 William Black-
stone, Commentaries 132-33 (1765). The court was not required to take the Ex-
ecutive at its word, but would engage in a searching review of the factual and legal
validity of the custodian's return. See, e.g., Goldswain's Case, 96 Eng. Rep. 711
(1778); Rex v. Turlington, 97 Eng. Rep. 741 (1761); Bushell's Case, 124 Eng. Rep.
1006 (1670); Hodges v. Humkin, 80 Eng. Rep. 1015 (1613); Gardner's Case, 78
Eng. Rep. 1048 (1600). If the court did not find sufficient justification for the de-
- 27 -
tention, it would order the prisoner released. See 1 William Blackstone, supra. It
is the lack of legal and factual justification for the detention, rather than the viola-
tion of any rights granted by positive law, that is the heart of habeas corpus review.
Thus, as the Court held in Rasul, the Guantánamo detainees have the "right to judi-
cial review of the legality of Executive detention." Rasul, 542 U.S. at 475.
d) Guantánamo detainees have fundamental rights that
the government cannot deny.
In Rasul, the Supreme Court recognized that Guantánamo detainees have
rights that habeas can vindicate. 542 U.S. at 484 n.15 ("Petitioners' allegations . . .
unquestionably describe `custody in violation of the Constitution or laws or treaties
of the United States.'") (citing Verdugo, 494 U.S. at 277-78 (1990) (Kennedy, J.,
concurring) and cases cited therein). The Court has previously acknowledged that
although an alien may not be entitled to all of the protections that the Constitution
provides, certain fundamental rights may be so inviolable as to apply to all who
come under the power of the United States. Reid v. Covert, 354 U.S. 1, 8-9 (1957)
(plurality opinion); Downes v. Bidwell, 182 U.S. 244, 282-83 (1901).
It is difficult to conceive a right more "fundamental" than the right not to be
deprived of personal liberty except in accordance with law. See Magna Carta,
1215, at ¶ 39 ("No freeman shall be taken or imprisoned or disseised or exiled or in
any way destroyed, nor will we go upon him nor send upon him, except by the
lawful judgment of his peers or by the law of the land"); Groppi v. Leslie, 404 U.S.
- 28 -
496, 502 (1971); Hamdi, 542 U.S. at 529. Failure to recognize this fundamental
right for Guantánamo detainees would leave Guantánamo a legal black hole a
land without law where the Executive can rule arbitrarily and absolutely. Such a
result would be "anomalous," to say the least. See Reid, 354 U.S. at 75 (Harlan, J.,
concurring).
B. Under the Government's Construction of DTA § 1005(e)(2),
Congress Has Unlawfully Suspended Habeas Without Providing
An Adequate Substitute.
1. CSRT proceedings are an inadequate substitute for habeas.
Because the Constitution affords Paracha, as an LPR and as a detainee held
at Guantánamo, the same right to the writ of habeas corpus as that afforded to a
citizen, if Congress withdraws his right to petition for the writ, it must provide a
judicial forum that will grant him an effective opportunity to litigate the legality of
his detention. Swain v. Pressley, 430 U.S. 372, 381 (1977) (Congress must not
withdraw the writ unless it provides an "adequate and effective" alternative remedy
to "test the legality of a person's detention."). The government does not claim that
Congress's withdrawal of the writ via the Military Commissions Act constituted a
suspension "in Cases of Rebellion or Invasion" consistent with the Suspension
Clause, see U.S. Const. art. I § 9, Cl. 2. The issue is whether the alternative rem-
edy Congress has granted Paracha to challenge his unlawful detention under the
Detainee Treatment Act is "adequate and effective." The government's construc-
- 29 -
tion of this remedy, however--a CSRT proceeding that denies him notice of the
factual basis for the CSRT's decision, a fair opportunity to respond to the govern-
ment's assertions, or a neutral decisionmaker to determine his innocence or guilt,
followed by narrow, inadequate judicial review of that proceeding's decision in an
appellate court--fails to comply with the demanding standard that suspension of
the writ requires.
At the heart of the Great Writ is the ability to "inquire into illegal detention
with a view to an order releasing the petitioner," Preiser v. Rodriguez, 411 U.S.
475, 484 (1973) (internal citation omitted), and a petitioner is thereby "entitled to
[a] full opportunity for the presentation of the relevant facts" related to his deten-
tion. Harris v. Nelson, 394 U.S. 286, 298 (1969). Due process also requires "a fair
opportunity to rebut the Government's factual assertions before a neutral deci-
sionmaker." Hamdi, 542 U.S. at 533; see also Concrete Pipe & Prods. v. Constr.
Laborers Pension Trust, 508 U.S. 602, 617 (1993) (citation omitted) (due process
requires a "neutral and detached judge in the first instance").
The CSRT Procedures fall far short of these constitutionally-mandated
marks. Paracha was deprived of a "fair opportunity to rebut the Government's fac-
tual assertions" or confront witnesses against him or present witnesses or evidence
on his behalf. The "PR" provided to Paracha to assist in his hearing under the
CSRT Procedures was not a lawyer, and was not required to have any relevant
- 30 -
training. CSRT Procedures Enclosure (3) § C.3. The CSRT Procedures also spe-
cifically forbade Paracha's PR from serving as his "advocate," and during their
single 35-minute meeting less than a week prior to the CSRT hearing, the PR in-
formed Paracha that "[n]one of the information [provided by Paracha to the Repre-
sentative] shall be held in confidence." Id. § 3. Nor was Paracha able develop the
factual record through discovery, or to review or meaningfully contest the evidence
the Tribunal relied upon for its finding of combatant status. Much of that secret
evidence was hearsay that likely was obtained by coercion or torture.
These bars to meaningful representation and rebuttal flout the procedural
protections the common law has historically granted to citizens detained by the
state. See Crawford v. Washington, 541 U.S. 36, 49 (2004) ("It is a rule of the
common law, founded on natural justice, that no man shall be prejudiced by evi-
dence which he had not the liberty to cross examine."). The CSRT panels them-
selves, composed of unidentified members of the military beholden to the chain of
command and denied access to exculpatory evidence, were operating under a pre-
ponderance of the evidence standard, and procedurally predisposed to a finding of
guilt.
- 31 -
2. DTA Review is an inadequate substitute for habeas.
Under the government's view, the DTA contemplates an impermissibly nar-
row role for Article III courts in reviewing Paracha's detention. According to the
government, this Court, the sole forum where Paracha may seek judicial review of
his CSRT determination, can only ask two questions when reviewing a CSRT deci-
sion: (1) whether the CSRT's determination was consistent with CSRT procedures
set out by the Department of Defense, see DTA, § 1005(e)(2)(i), and (2) whether
the "use of such standards and procedures to make the determination is consistent
with the Constitution and laws of the United States." Id. at § 1005(e)(2)(ii). This
Court has begun, in Bismullah and Parhat, to consider the procedures it will follow
in processing DTA claims. The government's argument in those cases, however,
demonstrates the irreparable flaws that would result if it prevails in those cases.
The writ requires meaningful judicial review of a "full presentation of the
relevant facts." See Harris, 394 U.S. at 298. Under the government's own view,
however, the review provided to Paracha under the DTA is inherently inadequate.
In its Bismullah briefing, the government told that court that the habeas regime that
the district court found governed Paracha's claims "is not appropriate to this
Court's limited review under the DTA," and that the "review here is administrative
in nature and is on the record of the CSRT. Accordingly, factual development at
Guantanamo"--even development of the "relevant facts," see Harris, supra--
- 32 -
"will not be necessary in pursuing this action." Resps.' Br. Addressing Prelim.
Mots. 32, Bismullah. Thus, if this Court follows the government's interpretation of
the DTA, it will be unable to consider facts outside of the record of the CSRT con-
cerning Paracha's detention, including, inter alia, potentially exculpatory evidence.
Without a full factual record, this Court's judicial review of CSRT proceedings
will therefore be by definition inconsistent with Paracha's due process rights and
will effectively suspend his right to seek the writ of habeas corpus.
II. THE MCA'S ELIMINATION OF GENEVA CONVENTIONS
CLAIMS VIOLATES THE SUSPENSION CLAUSE AND EX PARTE
KLEIN.
A. Stripping Habeas Courts of the Power to Consider Valid Legal
Claims Related to the Legality of Detention Violates the
Suspension Clause.
Section 5(a) of the MCA bars Guantanamo detainees from seeking habeas
relief on the ground that their detention violates the Geneva Conventions. See
MCA § 5(a).62 However, in cases of executive detention, detainees must be able to
raise "all issues relating to the legality of detention," including non-constitutional
claims. INS v. St. Cyr, 533 U.S. 289, 302-03 & n.14 (2001) (emphasis added).
62
The section reads:
IN GENERAL--No person may invoke the Geneva Conventions or
any protocols thereto in any habeas corpus or other civil action or pro-
ceeding to which the United States, or a current or former officer, em-
ployee, member of the Armed Forces, or other agent of the United
States is a party as a source of rights in any court of the United States
or its States or territories.
- 33 -
Courts have recognized "a long history of use of habeas of aliens to challenge con-
finement in violation of treaty obligations," and "American courts have exercised
habeas review over claims of aliens based on treaty obligations since the earliest
days of the republic." Saint Fort, 329 F.3d at 201-02; Wang v. Ashcroft, 320 F.3d
130, 141 n.16 (2d Cir. 2003).
Claims of violations of the Geneva Conventions fall into this category. The
Conventions have the status of supreme federal law, are a "treat[y] of the United
States" within the meaning of 28 U.S.C. § 2241(c)(3), and therefore provide a sub-
stantive source of rights that may be vindicated via habeas. As long as the Con-
ventions remain in force, the Executive must comply with them in order to render a
detention legal, and individuals detained in contravention of this obligation must
have access to habeas relief. St. Cyr, 533 U.S. at 303 n.14; Hamdan v. Rumsfeld,
126 S. Ct. at 2794 ("[i]t should be possible . . . for the rules of the Convention to be
evoked before an appropriate national court by the protected person who has suf-
fered a violation."). Because the Supreme Court in Hamdan found that the Con-
ventions were judicially enforceable as laws of war, Congress cannot not alter the
Conventions' enforceability without abrogating the Conventions themselves,
which the MCA does not attempt to do.63 Section 5(a), therefore, strips courts of
63
Congress has the constitutional authority to abrogate or supersede treaties by
later statute; however, courts have refused to so construe statutes absent a clear
(continued...)
- 34 -
the power to grant habeas relief based on valid treaty claims in violation of the
Suspension Clause.
B. Section 5(a)'s Limitation on the Applicable Law Courts May
Consider in Petitioner's Pending Habeas Case Violates Klein.
Congress unconstitutionally violates the separation of powers when it directs
federal courts to decide pending cases in contravention of the law. United States v.
Klein, 80 U.S. (13 Wall.) 128, 146 (1872). The legislature has substantial power to
structure the jurisdiction of the federal courts, but Klein requires that "so long at
least as Congress feels impelled to invoke the assistance of courts, the supremacy
of law in their decisions is assured." Henry M. Hart, Jr., The Power of Congress to
Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L.
Rev. 1362, 1383 (1953).
The Klein rule does not apply when Congress merely "amend[s] applicable
law," but it restricts Congress from dictating to courts a rule of decision. Plaut v.
Spendthrift Farm, 514 U.S. 211, 218 (1995). Since Section 5(a) does not affect the
Geneva Conventions' vitality or enforceability, but instead directs courts to ignore
statement from Congress of its intent to abrogate or supersede. Cook v. United
States, 288 U.S. 102, 120 (1933) (neither a treaty nor an executive agreement is
"abrogated or modified by a later statute unless such purpose on the part of Con-
gress has been clearly expressed."). There is no such clear statement in the MCA.
Indeed, to the contrary, the MCA's language indicates Congress's intention to im-
plement U.S. obligations under the Conventions. See MCA § 6 ("Implementation
of Treaty Obligations").
- 35 -
the Conventions in deciding a subset of pending cases--including those of detain-
ees such as Paracha--the MCA dictates a rule of decision in violation of Klein.
III. THE MCA AND DTA VIOLATE THE BILL OF ATTAINDER
CLAUSE AND THE FIFTH AMENDMENT'S GUARANTEE OF
EQUAL PROTECTION.
A. The MCA and DTA Are Classic Bills of Attainder.
As construed by the government, the MCA and DTA are Bills of Attainder
prohibited by Article I, § 9, clause 3, of the Constitution ("No Bill of Attainder ...
shall be passed."), because they deny of habeas corpus relief to a small, distinct,
and unpopular group. The Bill of Attainder clause prohibits this type of "depriva-
tion of any rights, civil or political," including "the privilege of appearing in
courts," when imposed on an otherwise disfavored minority. Cummings v. Mis-
souri, 71 U.S. 277, 320 (1866); United States v. Brown, 381 U.S. 437, 445-47
(1965).
To qualify as a Bill of Attainder, a legislative enactment must (1) apply with
specificity to an identified individual or group, and (2) impose punishment. Fore-
tich v. United States, 351 F.3d 1198, 1217 (D.C. Cir. 2003). The DTA and MCA
as construed by the government meet this standard. First, the bills in question ap-
ply to "easily ascertainable members of a group." United States v. Lovett, 328 U.S.
303, 315 (1946). By referring only to aliens held as enemy combatants by the U.S.
government, DTA § 1005(e)(1), MCA § 7, they refer to a discretely identified
- 36 -
group that the Executive purports to have the sole freedom to define. These laws
easily meet the specificity criterion for classification as a Bill of Attainder.
Determination of the punitive aspect of legislation subject to Bill of Attain-
der Clause analysis includes consideration of three factors: "(1) whether the chal-
lenged statute fails within the historical meaning of punishment; (2) whether the
statute, `viewed in terms of the type and severity of burdens imposed, reasonably
can be said to further nonpunitive legislative purposes'; and (3) whether the legis-
lative record `evinces a congressional intent to punish.'" Foretich, 351 F.3d at
1218 (quoting Selective Service System v. Minnesota Public Interest Group, 468
U.S. 841, 852 (1984)). A statute need not satisfy all three factors to be a Bill of
Attainder; they are merely factors to be considered. Selective Service Sys., 468
U.S. at 852. The test is a functional one not dependent on labeling by the legisla-
ture. Cummings, 71 U.S. at 325 ("The Constitution deals with substance, not shad-
ows. Its inhibition was leveled at the thing, not the name." ).
Denial of equal access to the courts meets the historic definition of punish-
ment. This is especially true under the government's analysis of the MCA and
DTA, which it construes to deprive Guantánamo detainees of the ability to attack
the constitutional legitimacy of their confinement and to destroy any opportunity
they might otherwise have had in habeas litigation to develop facts to counter the
one-sided record created in the CSRT. Consequently, as construed by the govern-
- 37 -
ment, the MCA and DTA ensure that the petitioners' detention will be prolonged
and indefinite based only on the military tribunal's review, a state of affairs which
the Cummings court listed as an historically-recognized form of punishment. 71
U.S. at 321 (quoting William Blackstone, 4 Commentaries). See also Lynce v. Ma-
this, 519 U.S. 433, 442 (1997) (discussing constitutional bases of prohibitions on
retroactive action and removal of eligibility for a benefit as punishment).
The punitive aspects of the MCA and DTA, as a practical matter, are ex-
treme. Imprisonment itself is punitive--whether brief or prolonged and regardless
of the conditions. Brown, 381 U.S. at 458 (imprisonment regardless of its purpose
is punishment). Here, Paracha has been in onerous custody, virtually incommuni-
cado, for over four years. The indefinite duration of the custody that the govern-
ment has imposed on him places it at the apex of punitive measures. Zadvydas v.
Davis, 533 U.S. 678, 690 (2001).
The nonpunitive purposes of the DTA and MCA are negligible compared to
the punitive consequences. The protective order entered in the district court main-
tained control over the government's security interests without depriving Paracha
of the essential means of challenging his determination. Under the government's
construction, the DTA and MCA's sole purpose is to deprive aliens held as enemy
combatants, and only that group, of the meaningful judicial review that habeas
corpus provides. They are therefore unconstitutional.
- 38 -
B. The MCA and DTA As Construed by the Government Violate
Equal Protection.
In Rasul, the Supreme Court found that 28 U.S.C. § 2241, the habeas statute,
applied equally to U.S. citizens and to aliens held at Guantánamo. 542 U.S. at 481
("there is little reason to think that Congress intended the geographical coverage of
the statute to vary depending on the detainee's citizenship"). Responding to Rasul,
Congress passed the DTA in an effort to strip jurisdiction over actions brought by
aliens held at Guantánamo; however, the Supreme Court found in Hamdan v.
Rumsfeld, 126 S. Ct. 2749 (2006), that the DTA did not strip jurisdiction over
pending habeas actions. Congress responded three weeks later, passing the MCA.
The MCA specifically precluded aliens detained as enemy combatants from seek-
ing habeas relief. MCA § 7(a). Instead, it forced them to contest their detention
through the DTA, id., a review that the government construes as extremely limited.
This classification is subject to strict scrutiny. The Fifth Amendment to the
Constitution precludes the government from denying citizens and non-citizens the
equal protection of the laws. Bolling v. Sharpe, 347 U.S. 497, 498-500 (1954).
When the government denies fundamental rights, such as access to the courts, to an
unpopular class of individuals, its actions are subject to strict scrutiny. Clark v. Je-
ter, 486 U.S. 456, 461 (1988) (laws withdrawing access to fundamental rights are
subject to strict scrutiny); Griffin v. Illinois, 351 U.S. 12, 17 (1956) (discrimination
in providing access to courts violates equal protection). Aliens are one of these
- 39 -
unpopular classes; indeed, they "are a prime example of a `discrete and insular mi-
nority.'" Graham v. Richardson, 403 U.S. 365, 372 (1971). And the discrimina-
tion here deprives aliens of the most fundamental right of all--the right to habeas
review. Carafas v. LaVallee, 391 U.S. 234, 238 (1968) (habeas is "shaped to guar-
antee the most fundamental of all rights" ).
The government cannot show that there is a compelling government interest
in denying only aliens the right to seek habeas relief. Even assuming that with-
drawing such rights is necessary to save American lives here and at home, there is
no rational reason that Congress would provide citizen enemy combatants with the
full panoply of habeas rights while forcing alien enemy combatants into a narrow
"some evidence" review of a non-adversarial military tribunal's decision, with in-
definite imprisonment the result if their challenge fails. See Hamdi, 542 U.S. at
519 (an enemy combatant citizen, "if released, would pose the same threat of re-
turning to the front during the ongoing conflict"). This distinction between citi-
zens and aliens is arbitrary, made based on a categorization that permitted the gov-
ernment to punish only a disfavored class without meaningful judicial review. Yick
Wo v. Hopkins, 118 U.S. 356, 374 (1886) ("the conclusion cannot be resisted that
no reason for [the distinction] exists except hostility to the race and nationality to
which the petitioners belong, and which, in the eye of the law, is not justified.")
Under the Fifth Amendment, this categorization cannot stand.
- 40 -
IV. THE GOVERNMENT'S INDEFINITE IMPRISONMENT OF
PARACHA, A LAWFUL PERMANENT RESIDENT ABDUCTED
FROM THAILAND, AS AN ENEMY COMBATANT VIOLATES THE
AUMF.
The AUMF authorized the President to wage war against the nations, per-
sons, or organizations who planned, authorized, committed, or aided the September
11 terrorist attacks, or who harbored such persons. Pub. L. 107-40, §§ 1-2, 115
Stat. 224 (2001). It did not authorize the President to sweep up and indefinitely de-
tain accused "affiliates of al Qaeda" who were thousands of miles from the battle-
field.
The government's position that Paracha is an enemy combatant whose de-
tention is authorized by the AUMF contradicts that statute, which must be inter-
preted consistent with longstanding principles of the law of war. Hamdi, 542 U.S.
at 521. These longstanding principles do not provide for an interpretation that
makes Paracha, abducted from the Bangkok airport, an enemy combatant. The dis-
tinction between Paracha and combatants captured on the battlefield is set forth in
Ex parte Milligan, 71 U.S. 2 (1866). Milligan, a citizen of Indiana, had allegedly
"conspired with bad men to assist the enemy," id. at 129, plotting to seize arsenals
of the United States government and liberate prisoners of war, id. at 17. The gov-
ernment asserted that he was a combatant and that it could thus subject him to a
military trial. Id. at 131. The Court disagreed, finding that Milligan was entitled to
a civilian trial because he had not engaged in hostilities. Id. at 131.
- 41 -
In Hamdi, the Court found that the AUMF permitted the government to de-
tain an American citizen seized on the battlefield in Afghanistan as an enemy com-
batant. 542 U.S. at 521. In its holding, however, the Court distinguished Milligan,
stating that Milligan was arrested far from the battlefield, which led to the conclu-
sion that he was not an enemy combatant. Id. at 522. Had Milligan been seized on
a Confederate battlefield carrying a rifle, the Court noted, the government may
have had the authority to detain him for the duration of the conflict as an enemy
combatant. Id. Milligan, not Hamdi, is the proper analogue to Paracha's case.
Further, international law, which is part of the law of war under which the
AUMF is interpreted, precludes Paracha's indefinite detention. First, the Geneva
Conventions, which govern the U.S. conflict with al Qaeda in Afghanistan, Ham-
dan v. Rumsfeld, 127 S.Ct. 2749, 2795 (2006), provide clear rules for distinguish-
ing prisoners of war from civilians and do not provide for an amorphous "enemy
combatant" category that can be manipulated as the detaining government sees fit.
See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War (Third
Geneva Convention) arts. 2, 4, 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135;
Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S.
287. Moreover, under Common Article 3 of the Conventions, which applies to the
U.S. conflict with al Qaeda, Hamdan, 127 S.Ct. at 2796, a captor cannot sentence a
- 42 -
civilian without a trial before a "regularly constituted court, affording all the judi-
cial guarantees which are recognized as indispensable by civilized peoples."
Fourth Geneva Convention, art. 3. Yet the government claims the authority to hold
Paracha in solitary confinement for the duration of an indefinite war because it has
not attempted to try him, but instead has provided him only with a proceeding in
which he did not have counsel, a chance to rebut the evidence, or a fair chance to
present exculpatory evidence. The AUMF does not provide this authority.
Second, international law does not recognize detention for the duration of a
war on an idea ("terror") or an ideology ("Islamofascism") that the government ar-
gues justifies its indefinite detention of Paracha. Although international law rec-
ognizes that the capture on the battlefield and temporary detention of enemy com-
batants is a regular incident of war, see Hamdi, 542 U.S. at 518-19, "[i]t is a clearly
established principle of the law of war that detention may last no longer than active
hostilities," id. at 520-21. In other words, international law anticipates that armed
conflict will end, at which any point detention must also end. On the other hand,
here, Paracha faces detention for the rest of his life given that the underpinnings of
the "war on terror" are "broad and malleable" and "the current conflict is unlikely
to end with a formal cease-fire agreement." Hamdi, 542 U.S. at 520. Paracha's
indefinite detention pursuant to a war on an idea therefore violates international
law.
- 43 -
Because Congress did not make an affirmative statement of intent to violate
these principles of international law when it passed the AUMF, the AUMF does
not permit Paracha's detention. Murray v. The Schooner Charming Betsy, 6 U.S.
(2 Cranch) 64, 118 (1804) ("an act of congress ought never to be construed to vio-
late the law of nations, if any other possible construction remains").
V. THE PROCEDURES UNDER WHICH PARACHA'S CSRT WAS
CONDUCTED DID NOT COMPLY WITH THE DTA'S REQUIRED
STANDARDS AND PROCEDURES.
A. Paracha's CSRT Was Not Conducted Under the Standards That
the DTA Contemplates and Was Therefore Invalid Per Se.
Because it was conducted before the DTA became law, Paracha's CSRT was
conducted under the Wolfowitz Order and CSRT Procedures, not under the stan-
dards and procedures that the DTA requires the Secretary of Defense to specify
and submit to Congress for review. DTA §§ 1005(a), 1005(e)(2)(C)(i). Therefore,
as a matter of law, Paracha's CSRT determination was not consistent with those
standards and procedures or with the DTA itself, and must be overturned for that
reason alone. DTA § 1005(e)(2)(C)(i).
B. Paracha's CSRT Failed to Provide Safeguards Required by the
DTA.
Moreover, the DTA stated that the procedures submitted for the CSRTs had
to include certain safeguards, including review of CSRT determinations by a des-
ignated civilian officer, a procedure for the review of new evidence, and a re-
quirement that a CSRT consider whether the government had obtained statements
- 44 -
derived from or relating to a detainee by coercion. DTA § 1005(a).
The Wolfowitz Order and CSRT Procedures did not include these safe-
guards, which guarantee due process. First, they did not provide for review of new
evidence and new CSRTs. Second, Paracha's CSRT failed to consider whether
statements derived from or related to him were obtained by coercion, a serious
flaw that Congress sought to remedy by passing the DTA. See In re Guantánamo
Detainee Cases, 355 F. Supp. 2d 443, 473 (2004) ("At a minimum, . . . due process
requires a thorough inquiry into the accuracy and reliability of statements alleged
to have been obtained through torture.") Indeed, there is sufficient ground to sus-
pect that those statements were indeed obtained by coercion. See Part VI.D., infra.
Third, no civilian officer reviewed the results of Paracha's CSRT, even though
such review is substantially different from final review by a military official who
does not hold a position at the consent of the Senate and who may inherently be
biased toward the military. The status determination of Paracha's CSRT violated
both the DTA and the Constitutional guarantee of due process because it lacked
these necessary safeguards as provided in the DTA.
C. The CSRT Procedures As Applied Do Not Provide A Basis For
Determining Under the DTA Whether the CSRT's Decision Was
Supported By A Preponderance Of The Evidence.
Under the DTA, this Court evaluates whether the conclusion of the CSRT
was supported by a "preponderance of the evidence." DTA § 1005(2)(C)(ii). The
- 45 -
government's proposed scope of review does not permit the Court to make this
evaluation. The CSRT Procedures, which created the minimal record before the
Court, provide no basis for evaluating whether a "preponderance of the evidence"
supported the CSRT's determination, because the evidence that was or should have
been collected goes far beyond that record. As the declarations submitted in Bis-
mullah show, the Recorder failed to collect all relevant information, failed to re-
view it, and failed to present exculpatory evidence. The CSRT abdicated its duty
to consider the reliability of the government's hearsay evidence. Discovery is nec-
essary to discern exactly what the evidence should have been, on both the govern-
ment's side and on Paracha's side, and then balance that evidence. If Paracha is
granted no such discovery, review of the CSRT under the DTA is impossible with-
out violating the DTA and the due process rights to which he, a lawful permanent
resident, is entitled.
D. The CSRT Procedures As Applied Violated The DTA's
Requirement That A Detainee Be Given An Opportunity To
Rebut The Presumption In Favor Of The Government's
Evidence.
Under the DTA, the Court should evaluate whether the CSRT's determina-
tion was consistent with a rebuttable presumption in favor of the government's
evidence. DTA § 1005(2)(C)(ii). The CSRT Procedures provided for a presump-
tion in favor of the government's evidence, but there was no rebuttal allowed. The
function of rebuttal evidence is to "contradict, impeach or defuse the impact of the
- 46 -
evidence offered by an adverse party." United States v. Grintjes, 237 F.3d 876,
879 (7th Cir. 2001) (quoting United States v. Papia, 560 F.2d 827, 848 (7th
Cir. 1977)) (quotations omitted). Paracha had no means of contradicting, impeach-
ing, or defusing the government's evidence because he never saw it. Instead, he
saw only a conclusory summary of it that completely lacked any supporting proof.
He had no counsel or advocate to help him rebut the secret evidence used against
him. He had no ability to cross-examine witnesses or show that their statements
were unreliable. This procedure was inherently unfair. Guantánamo Detainee
Cases, 355 F. Supp. at 469.
Even now, his security-cleared counsel has only been permitted to see a
heavily redacted version of the government's evidence, and the government seeks
to preclude counsel from gathering any more information for this case aside from
the evidence submitted to the CSRT. The government thus asks the Court to adopt
in toto the CSRT's failure to provide Paracha with a meaningful opportunity to re-
but the evidence against him. As a result of this interpretation, the "rebuttable pre-
sumption" provided by the DTA will become an unrebuttable presumption in favor
of the government's evidence, violating both the DTA and due process.
The Court must therefore consider evidence from outside the CSRT record,
and should permit the discovery necessary to supplement that record. Paracha
needs access to the full set of Government Information that was or should have
- 47 -
been collected by the Recorder and the Team, including records of the FBI's inves-
tigation of his business's shipments and the results of any polygraph tests. He
needs access to the Government Evidence in unredacted form. He needs discovery
of exculpatory information, including the letters he wrote to the U.S. government,
and any records that would show that the evidence against him was obtained by
torture or coercion.
If the Bismullah and Parhat court rules that such evidence is indeed perti-
nent in DTA proceedings, Paracha will then file a motion seeking this evidence. 64
If the Court preemptively acts without it and denies Paracha's claim for relief,
however, it will fail to conduct the review required by the DTA and will deny Pa-
racha the due process that this proceeding, his presence in the territorial jurisdic-
tion of the United States, and his permanent resident status entitle him to receive.
VI. PARACHA'S CSRT WAS INVALID BECAUSE IT FAILED TO
COMPLY WITH THE WOLFOWITZ ORDER, CSRT
PROCEDURES AND THE CONSTITUTION AND LAWS OF THE
UNITED STATES.
Even if a CSRT conducted under the Wolfowitz Order and CSRT Proce-
dures could be valid with regard to Paracha, a citizen of a friendly nation who was
abducted far from the battlefield, the determination that Paracha was an enemy
64
Paracha has sought discovery in his cases for over a year. Mot. to Allow and
Accelerate Discovery, Paracha v. Bush, No. 04-2022 (PLF) (D.D.C. filed Oct. 3,
2005).
- 48 -
combatant is invalid for a number of reasons.
A. Paracha Did Not Meet the Definition of Enemy Combatant in the
Wolfowitz Order.
Under the Wolfowitz Order, to be an enemy combatant, an individual had to
be part of or supporting al Qaeda or Taliban forces. Wolfowitz Order § a. The
term "includes any person who has committed a belligerent act or has directly sup-
ported hostilities in aid of enemy armed forces." Id. This definition does not in-
clude a citizen of Pakistan, accused of no hostile act, who the government abducted
in a Thailand airport thousands of miles from its battlefield with al Qaeda and the
Taliban.65 See Hamdi v. Rumsfeld, 542 U.S. at 518 ("The purpose of detention is
to prevent captured individuals from returning to the field of battle and taking up
arms once again."). DTA § 1005(e)(2)(C)(i) therefore invalidates the CSRT's de-
termination.
65
This issue was also briefed in Paracha's dispositive motion, filed March 21,
2006 and denied without prejudice to his claims in this case. The recent ruling of a
panel in the Fourth Circuit in Al-Marri v. Wright, 481 F.3d 160 (4th Cir. 2007), pe-
tition for rehearing en banc pending, supports Paracha's position that he is not a
combatant, enemy or otherwise. "[E]nemy combatant status rests on an individ-
ual's affiliation during wartime with the `military arm of the enemy government.'
Quirin, 317 U.S. at 37-38; Hamdi, 542 U.S. at 519; see also Padilla, 423 F.3d at
391." Al Marri. Detaining a person who has never been on the battlefield does not
serve the purpose of preventing enemy combatants from returning to the battle-
field. Id. The Fourth Circuit also noted: "Common Article 3 and other Geneva
Convention provisions applying to non-international conflicts (in contrast to those
applying to international conflicts, such as that with Afghanistan's Taliban gov-
ernment) simply do not recognize the `legal category' of enemy combatant. See
Third Geneva Convention, art. 3, 6 U.S.T. at 3318." Id. at 52.
- 49 -
Moreover, the finding that Paracha was an enemy combatant even though
the Wolfowitz Order did not provide for such a finding was inconsistent with the
Constitution and the rule of law in this country, meaning that DTA
§ 1005(e)(2)(C)(ii) also invalidates that determination. When the government fails
to follow its own standards and regulations in making a determination with regard
to an individual, that failure violates the individual's due process rights, rendering
the determination invalid. See Service v. Dulles, 354 U.S. 363, 388 (1957); United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). As the Court
found in Accardi, aliens are protected from actions taken by the government that
contradict its own regulations. 347 U.S. at 268. Here, the military defined the
term enemy combatant for the CSRTs, protecting individuals who were not subject
to that definition from indefinite detention for the duration of the war on terror--
but only if the definition was applied correctly in the individual CSRTs. By failing
to follow that definition, Paracha's CSRT denied him due process and violated the
rule of law.
B. The CSRT and Its Staff Failed to Comply with the CSRT
Procedures, Resulting in a Finding that Paracha Was an Enemy
Combatant Based on Evidence That Likely Was Obtained by
Torture or Coercion.
Under the CSRT Procedures, the Recorder, a commissioned officer with
TOP SECRET security clearance, was supposed to obtain and examine the rea-
sonably available information in the government's possession bearing on Paracha's
- 50 -
status (the "Government Information"), and then to present all exculpatory infor-
mation. CSRT Procedures Enclosure (1) §§ E. and H.4; Enclosure (2) § C.1. The
Recorder failed in these duties. First, the Recorder abdicated responsibility to a
poorly trained document collection Team that gathered some, but not all, of the
Government Information and then discarded materials collected without reason.
Abraham Decl. ¶¶ 7, 16. The Team failed to obtain other information due to its
own lack of knowledge and withholding by other government agencies, even with-
out a certification that the information withheld was not exculpatory. Abraham
Decl. ¶¶ 10-12, 17.
Second, the Recorder did not gather and present all exculpatory information
for a number of reasons. Recalcitrant agencies withheld evidence and refused to
certify that none of it was exculpatory, as the CSRT Procedures required. Abra-
ham Decl. ¶¶ 12-15. The Recorder and the Team withheld exculpatory evidence
from the CSRT based on ill-founded determinations that it was "marginally rele-
vant." Abraham Decl. ¶ 17; see also McGarrah Decl. ¶ 13. The government
would decide not to present allegations related to a certain activity and would then
withhold all evidence related to that activity, including exculpatory evidence.
McGarrah Decl. ¶ 13.
In Paracha's case, the only exculpatory evidence provided to the CSRT was
that submitted by Paracha's counsel, who did not even know his client was held at
- 51 -
Guantanamo at the time. The Recorder did not present a single exculpatory docu-
ment, despite the statements by Khan and al Baluchi that the government revealed
during the trial of Paracha's son and the letters that Paracha wrote to the U.S. gov-
ernment (which the CSRT President deemed irrelevant despite the possibility that
they would exculpate Paracha).
These failures alone are sufficient to invalidate Paracha's CSRT. One fail-
ure of Paracha's CSRT, however, was particularly egregious. The CSRT and its
staff completely ignored whether the secret hearsay evidence used against Paracha
was obtained by torture or coercion. The Team and Recorder apparently failed to
collect any documents relating to the circumstances under which the evidence was
obtained, because otherwise they would have been compelled to submit it. The
CSRT did not inquire into those circumstances, as the Wolfowitz Order required it
to do to evaluate the reliability of the hearsay evidence. Wolfowitz Order § g.9.
Indeed, the Army Field Manual recognizes that information obtained by the use of
"[a]cts of violence or intimidation, including physical or mental torture, or expo-
sure to inhumane treatment" is of "questionable value."66
Although counsel can only guess at the sources of the evidence used against
Paracha because the government refuses to reveal those sources, it is extremely
66
Headquarters, Dep't of the Army, FM 2-22.3, Human Intelligence Collector
Operations, at 5-26 (September 2006), available at
http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf.
- 52 -
likely that the evidence was of such "questionable value" if it was obtained at
Guantánamo, Bagram, or in CIA secret prisons. In December 2002, then-Secretary
of Defense Donald Rumsfeld approved a set of interrogation techniques for
Guantánamo prisoners that were harsher than those approved by the Army Field
Manual.67 At Guantánamo, the government extracted information from at least one
prisoner under extreme conditions that rendered him incoherent and potentially in-
sane, as a secret interrogation log reveals.68 Even an internal Army investigation
of the interrogation found that it constituted abusive treatment.69
In response to the Secretary of the Navy's concerns, on January 12, 2003,
Secretary Rumsfeld revoked his order approving the use of these techniques at
Guantánamo.70 At Guantánamo, however, interrogations continued to include tac-
tics such as isolation, sleep "adjustment," and intimidation.71
Furthermore, the practices approved in December 2002 migrated to Bagram,
67
See Action Memo from William J. Haynes II, General Counsel, DOD, to
Secretary of Defense (Nov. 27, 2002), available at
http://www.defenselink.mil/news/Jun2004/d20040622doc5.pdf; A.T. Church III,
Review of Dep't of Defense Detention Operations and Detainee Interrogation
Techniques at 116-117 (Mar. 11, 2005), available at
http://www.aclu.org/images/torture/asset_upload_file625_26068.pdf.
68
Adam Zagorin and Michael Duffy, Inside the Interrogation of Detainee 063,
Time (Jun. 12, 2005).
69
Army Regulation 15-6: Final Report, Investigation of FBI Allegations of De-
tainee Abuse at Guantánamo Bay, Cuba Detention Facility at 20, available at
http://www.defenselink.mil/news/Jul2005/d20050714report.pdf.
70
Church, supra, at 120.
71
Id. at 138-140.
- 53 -
where commanding officers disapproved only a select number of them during the
time that the government held Paracha there.72 Further, personnel at Bagram im-
properly read the rules for interrogations to include stress positions and sleep "ad-
justment."73 Paracha has stated that he was held in "extremely severe bad condi-
tions" and "in isolation" during his fifteen months at Bagram.74
Finally, the CIA subjected high-value detainees held in secret prisons to
"enhanced interrogation techniques" including mock executions through water-
boarding, physical abuse, and forced standing.75 Among these high-value detain-
ees were Majid Khan, Ammar al Baluchi, and Khalid Sheikh Mohammad,76 who
were named in Paracha's son's case, Paracha, No. 03-CR-1197, 2006 WL 12768,
at *11, and were discussed at Paracha's CSRT.77 It is a near certainty that they
were subjected to the CIA's "enhanced" techniques.78 Indeed, in their CSRT pro-
72
Id. at 196-197.
73
Id. at 196-197 and 237.
74
CSRT Decision Report Exhibit D-b at 2, App. 58.
75
Ross and Esposito, supra.
76
See http://www.defenselink.mil/news/Combatant_Tribunals.html;
http://www.odni.gov/announcements/content/DetaineeBiographies.pdf.
77
CSRT Decision Report Enclosure (3) at 11, App. 16; Unclassified Recording
of CSRT Proceeding.
78
Khaled al-Masri, who like Khan was detained in the CIA's "Salt Pit" in Af-
ghanistan, has described the techniques, including sodomization and mock execu-
tion, to which he was subjected there. Mot. for Access to Counsel Ex. E, Khan v.
Bush, No. 06-1690 (RBW) (D.D.C. filed Nov. 4, 2006). Mohammad was also sub-
jected to a mock execution. Walter Pincus, Waterboarding Historically Contro-
versial, Washington Post (Oct. 5, 2006).
- 54 -
ceedings, Khan and Mohammad described their torture at the hands of the govern-
ment, but those descriptions are redacted from the transcripts released to the pub-
lic.79
The CSRT's ruling, which ignored the very real possibility that evidence
used against Paracha was obtained by these tactics, is therefore invalid because it
violated the Wolfowitz Order. If that evidence was indeed obtained by torture or
coercion, the use of that evidence would violate the Fifth and Eighth Amendments
to the Constitution, DTA § 1003, Common Article 3 of the Geneva Conventions,
Article 15 of the U.N. Convention Against Torture,80 and the law of nations under
the Alien Tort Statute, 28 U.S.C. § 1350. The government may argue that Paracha
cannot show that the evidence against him was definitely obtained by such tactics,
but this is a textbook Catch-22. Paracha's counsel cannot transform this possibility
into a certainty without discovery of the identity of the sources, which the govern-
ment has withheld to date, and discovery of interrogation logs and other documents
reflecting tactics used to obtain information from those sources. If the CSRT's rul-
ing is affirmed at face value without that discovery, Paracha's rights to any mean-
79
Verbatim Transcript of CSRT Hearing for ISN 10020 at 28, available at
http://www.defenselink.mil/news/transcript_ISN10020.pdf; Verbatim Transcript of
CSRT Hearing for ISN 10024 at 14, available at
http://www.defenselink.mil/news/transcript_ISN10024.pdf.
80
The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment, art. 15, opened for signature Dec. 10, 1984, G.A.
Res. 39146, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984)
- 55 -
ingful review of that ruling will be effectively denied.
CONCLUSION
The orders of the CSRT and Director should be vacated and the Court
should order Paracha's unconditional release to Pakistan. In the alternative, the
Court should permit discovery and supplemental briefing to give Paracha a full op-
portunity to present the relevant facts.
Respectfully submitted,
David H. Remes
COVINGTON & BURLING LLP
Gaillard T. Hunt
- 56 -
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