Feds Release Two Detainees -- A Move to Circumvent Cert.?

By William Peacock, Esq. on August 28, 2014 | Last updated on March 21, 2019

After years of fighting for their freedom in U.S. courts, Fadi al-Maqaleh and Amin al-Bakri, who had been detained at Bagram Air Force Base in Afghanistan for at least a decade, were repatriated to Yemen earlier this week.

The timing of the release was curious: not only is al-Bakri is suffering from leukemia, but both al-Maqaleh and al-Bakri were named parties seeking certiorari from the U.S. Supreme Court in an appeal of the D.C. Circuit's holding that the district court correctly determined that it lacked subject matter jurisdiction to review their habeas petitions. Though U.S. officials refused to comment on al-Bakri's condition, sources told The Washington Post that he was in "bad shape."

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Circumventing Cert.?

With the release, two of the three plaintiffs in the cert. petitions have had their claims mooted. There is no word on the status of their third co-plaintiff, Tunisian Redha al-Najar.

Tina Foster, their attorney, told the Post that she suspected that this may have been an end-run around their certiorari petition. Military commissions had cleared the two men for release three times since 2010. In 2012, Yemen agreed to take them back, and stated that they would be denied passports to prevent them from traveling.

Holding Yemenis who have been cleared isn't unheard of -- fifty-eight out of eighty-six Yemenis in Guantanamo have been cleared for release by an inter-agency task force formed after President Obama took office. However, according to the Post, Obama has had a self-imposed ban on transferring Yemenis home due to instability in that nation.

The move could also could simply be housecleaning -- the number of inmates at Bagram has fallen below thirty, down from more than 50 in December, as U.S. forces move to wind down Afghani operations.

Long Battle Over?

This wasn't the duo's first round through the courts either. Politico recaps their long court battle:

In 2009, U.S. District Court Judge John Bates -- a George W. Bush appointee -- ruled that Al-Maqaleh, Al-Bakri and Tunisian Redha Al-Najar could pursue habeas corpus cases seeking their release from U.S. custody in Afghanistan.

A D.C. Circuit appeals court panel overturned Bates' ruling in 2010. But the legal saga continued in 2011 after Bates allowed the prisoners to amend their petitions in light of U.S. plans to transition the Bagram prison to Afghan control.

Ultimately, however, Bates found not enough had changed to allow the habeas cases to proceed. The D.C. Circuit upheld that ruling last December, prompting the Supreme Court petition filed earlier this month.

Of course, this begs the question: what will happen to al-Najar, their long-time co-plaintiff?

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