Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella v. Robert M. Gates; Abdusabour v. Robert M. Gates; Hammad v. Robert M. Gates.

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	06-1197; 07-1508; 07-1523
Decision title	On Petition for Rehearing
Decision date	9 January 2009
Parties	Haji Bismullah Abdusabour Hammad Robert M. Gates
Other names	Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella Bismullah IV
Categories	Terrorism
Keywords	(lack of) subject matter jurisdiction, Boumediene v. Bush, Combatant Status Review Tribunal, enemy combatant, Guantanamo Bay, Terrorism
Links	On Petition for Rehearing
Other countries involved	Afghanistan Pakistan

Summary

The case relates to eight Guantanamo detainees who challenged the determination of the Combatant Status Review Tribunal (CSRT) that they are “enemy combatants”. The case comprises the petitions of Haji Bismullah on the one hand, and of Huzaifa Parhat and six other men on the other.

Pursuant to the US Supreme Court’s decision in Boumediene v. Bush, where the Supreme Court found that certain provisions of the Detainee Treatment Act (DTA) are unconstitutional, the Court of Appeals raised the question of whether it still has subject matter jurisdiction to hear the detainees’ petitions. The Court of Appeal found that it no longer has subject matter jurisdiction, since the provisions of the DTA relating to the elimination of the habeas corpus rights (the right to challenge the legality of one’s detention) have been found to be unconstitutional by the Supreme Court. Therefore, the detainees’ petition was dismissed.

Procedural history

The case relates to eight Guantanamo detainees who challenged the determination of the Combatant Status Review Tribunal (CSRT) that they are “enemy combatants” (For the CSRT Materials, see here).

The case comprises the petitions of Haji Bismullah on the one hand, and of Huzaifa Parhat and six other men on the other. Bismullah was captured in Afghanistan in 2003, while Parhat and the others in Pakistan in 2001.

On 20 July 2007, the US Court of Appeals ruled that in order to perform a meaningful review of the CSRT determination, it must have access to the information that was available to the CSRT as well.

The US Government requested a rehearing or, in the alternative, a rehearing en banc. On 3 October 2007, the Court of Appeals denied the request.

On 1 February 2008, the Court of Appeals denied the US. Government’s petition for a rehearing en banc. See also, American Society of International Law, 'Bismullah v. Gates (Bismullah III) (D.C. Cir. February 1, 2008)', International Law in Brief, 2008.

In May 2008, the US Department of Justice filed a motion asking the US Court of Appeals for the District of Columbia Circuit to remand the case of Bismullah to the Pentagon, or, in the alternative, hold it in abeyance. The DoJ stated that, in light of new evidence, the “enemy combatant” status of Bismullah will be reviewed by the Pentagon. See also A. Salisbury, 'Bismullah ‘Enemy Combatant’ Status to be Reviewed in Light of ‘New Evidence’, Jurist, 9 May 2008.

Related developments

On 17 January 2009, the Department of Defense announce the transfer of six Guantanamo detainees, among which, Haji Bismullah, after a determination that Bismullah should no longer be considered an enemy combatant (the decision is not publicly available). See US Department of Defense Press Release: Detainee Transfer Announced, 17 January 2009.

See also L. Tanglen, 'US Military Announces Transfer of 6 Guantanamo Detainees', Jurist, 18 January 2009; and W. Glaberson, 'Rulings of Improper Detentions as the Bush Era Closes', The New York Times, 18 January 2009.

Legally relevant facts

The petitioners of the case are eight men detained at the US Naval Base at Guantanamo Bay (Cuba). The subject of their petition relates to a request to review the determination made by a Combatant Status Review Tribunal that they are “enemy combatants.” The suit combines two petitions, one adduced by Haji Bismullah and the other of Huzaifa Parhat and six other men. Haji Bismullah was captured in 2003 in Afghanistan, while Huzaifa Parhat and six other men in 2001 in Pakistan (pp. 2-3).

In the wake of the Supreme Court’s ruling in Boumediene v. Bush, the Court of Appeals re-visited the petitions of the detainees on the determination made by the CSRT that they are “enemy combatants” (pp. 2-3).

Core legal questions

In light of the US Supreme Court’s decision in Boumediene v. Bush, does the Court of Appeals lack subject matter jurisdiction to hear the detainee’s petition?

Specific legal rules and provisions

Military Commissions Act (MCA) of 2006.
Section 1005(e)(2) of the Detainee Treatment Act (DTA).

Court's holding and analysis

The Court of Appeal invoked the US Supreme Court’s decision in Boumediene v. Bush, in which the provisions of the Detainee Treatment Act the provision eliminating habeas jurisdiction was held to be unconstitutional,and found that “[b]ecause the Court held unconstitutional the provision eliminating habeas jurisdiction, DTA [Detainee Treatment Act] § 1005(e)(2) can no longer provide jurisdiction exclusively in this court over a detainee’s challenge to his detention as an enemy combatant; instead a detainee may challenge his detention in the District Court for the District of Columbia and get review of its decision in this court. Nor can DTA review now serve as a substitute – albeit more limited in scope – for habeas corpus” (p. 8).

The Court of Appeal in summarizing its findings held that “we are confident the Congress would not have enacted DTA § 1005(e)(2) in absence of the statutory provision banning the courts from exercising jurisdiction over a detainee’s habeas petition. Because the latter provision has been held unconstitutional, the former must also fall. Accordingly, we hold this court lacks subject matter jurisdiction over the detainee’s petitions for review of their status determinations by a CSRT [Combatant Status Review Tribunal]. The petitions are, therefore, dismissed” (pp. 12-13).

Instruments cited

US Detainee Treatment Act, Title X of Public Law 109-148, 2005.
Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 2006.

Related cases

US Court of Appeals for the District of Columbia Circuit, Haji Bismullah, Haji Mohammad Wali v. Robert M. Gates; Huzaifa Parhat et al. v. Robert M. Gates, Case Nos. 06-1197 and 06-1397, On Motions, 20 July 2007.
US Court of Appeals for the District of Columbia Circuit, Haji Bismullah, Haji Mohammad Wali v. Robert M. Gates; and Huzaifa Parhat et al. v. Robert M. Gates, Case Nos. 06-1197; 06-1397, On Petition for Rehearing, 3 October 2007;
US Court of Appeals for the District of Columbia Circuit, Bismullah v. Gates and Parhat et al. v. Gates, Nos. 06-1197 and 06-1397, On Petition for Rehearing En Banc and Motions, 1 February 2008.