Zalita v. Bush

Synopsis

Abdul Ra’ouf Ammar Mohammad Abu Al Qassim is a Libyan refugee who has been detained in Guantánamo for almost six years. He has two cases pending: Zalita v. Bush, a habeas corpus petition, and Zalita v. Gates, a petition for review under the Detainee Treatment Act.

In 2006, the U.S. government determined that Mr. Al Qassim should no longer be imprisoned in Guantanamo. The military, however, seeks to transfer him to the custody of the human-rights abusing regime of Colonel Myammar Al-Qadhafi, where Mr. Al Qassim faces certain torture and persecution. Mr. Al Qassim is the first Guantánamo detainee to present a legal challenge to the US government’s intention to transfer him to his native country despite his well-founded and well-documented fear of indefinite detention, torture and death.

Mr. Al Qassim’s habeas case is currently stayed pending the outcome of the Boumediene and Al Odah cases in the Supreme Court, which will be decided in 2008. The outcome of Boumediene and Al Odah should determine the rights of Guantánamo detainees to challenge their detention in federal court. However, Mr. Al Qassim also has a petition for writ of certiorari currently pending in the Supreme Court of the United States to prevent the Executive from transferring him to Libya prior to the Supreme Court’s determination of the detainees’ rights in Boumediene and Al Odah.

Status

Mr. Al Qassim’s habeas case is currently stayed pending the outcome of the Boumediene and Al Odah cases in the Supreme Court, which will be decided in 2008.

Description

Zalita v. Bush is a petition for habeas corpus filed on behalf of Abu Abdul Rauf Zalita, a.k.a. Abdul Ra’ouf Ammar Mohammad Abu Al Qassim. Respondents in the case include President George Bush, the Secretary of Defense, and military commanders of the Joint Task Force – Guantanamo.

Zalita v. Gates is a DTA petition, which is an appeal of Mr. Al Qassim’s Combatant Status Review Tribunal under the Detainee Treatment Act of 2005. The respondent in this case is Secretary of Defense Robert Gates.

Mr. Al Qassim was conscripted into the Libyan Army when he was about 18 years old. The onset of psychiatric illness forced him to desert the army and he soon fled Libya for fear of persecution because he was an observant Muslim. During the next ten years, Mr. Al Qassim lived abroad as a refugee and survived on the charity and generosity of those who offered him places to stay. In 2000, he married an Afghan woman and settled in the Afghan capital of Kabul. When the U.S. bombardment began in October 2001, Mr. Al Qassim fled with his pregnant wife to seek refuge in Pakistan.

Soon after his daughter was born, Mr. Al Qassim fell victim to the chaos of the war. He was arrested and turned over to military authorities, likely for a sizable bounty. Since he has been imprisoned in Guantánamo, the U.S. government has claimed that Mr. Al Qassim is associated with the Libyan Islamic Fighting Group (LIFG), a group opposed to the Qadhafi regime, because he stayed in the home of some men who have been accused of later joining LIFG. Though he has no connection with this group, the allegation of his association with LIFG virtually guarantees that he will be severely persecuted if forcibly returned to Libya.

Timeline

On June 22, 2005, the Center for Constitutional Rights and pro bono co-counsel filed Zalita v. Bush, a petition for habeas corpus in the D.C. District Court.

On July 25, 2005, the district court issued an order requiring the government to provide 30 days advance notice of any intended transfer of Mr. Al Qassim to the custody of a foreign government.

In December 2006, and again in February 2007, the U.S. government declared its intention to transfer Abdul Ra’ouf from Guantánamo to the custody of Libyan officials for the “continued detention, investigation, and/or prosecution as that country deems appropriate, consistent with the policies and practices pertaining to such transfers…” CCR attorneys quickly met with Mr. Al Qassim at Guantánamo and he reaffirmed his ongoing fear of torture and persecution by the Qadhafi regime.

On January 19, 2007, CCR filed a motion asking the court to order the government to provide 60 days advance notice before they render him to Libya in order to allow him sufficient time to prepare an application for withholding of removal from U.S. custody and to seek a court order preventing his transfer in violation of his rights under the Constitution and international treaties, including the Convention Against Torture. The court granted the motion on February 15, 2007. The government gave its 60 days notice on February 20, 2007, reaffirming its intention to transfer Mr. Al Qassim to Libya despite his stated fear of torture.

On April 12, 2007, CCR filed a motion in the D.C. District Court for a temporary restraining order and preliminary injunction to prohibit Mr. Al Qassim’s transfer. We argued that his transfer would be a violation of his constitutional and treaty-based rights. CCR also provided the court with a sworn declaration from Mr. Al Qassim stating his fear of torture and persecution, as well as three expert declarations describing the serious risk of torture and persecution Mr. Al Qassim faced in Libya and the ineffectiveness of diplomatic assurances, if any, that the U.S. government received from Libya promising to treat Mr. Al Qassim humanely.

On April 19, 2007, the district court denied the motion for a preliminary injunction. The court recognized “the seriousness of the petitioner’s allegations,” but found that it had “no choice but to deny the motion” in light of the court of appeals decision in Boumediene, which stated that the Military Commissions Act of 2006 stripped the federal courts of jurisdiction over habeas and non-habeas claims by Guantánamo detainees.

The case was appealed to the D.C. Circuit Court of Appeals on April 20, 2007, but the circuit court denied Mr. Al Qassim’s motion for injunctive relief and dismissed the case for lack of jurisdiction on April 25, 2007. CCR then filed an emergency application for an injunction in the Supreme Court of the United States. The Supreme Court denied the application on May 1, 2007.

While seeking relief through the courts, CCR also engaged in an international media and advocacy campaign to discourage the U.S. government from transferring him to Libya and to bring public scrutiny to his case. A lengthy article in the Washington Post described Mr. Al Qassim’s plight and his family efforts to bring him home. Mr. Al Qassim hopes to return to Afghanistan to live with his wife and daughter, and CCR continues actively to pursue his resettlement and asylum options.

On September 21, 2007, CCR filed a petition for writ of certiorari in the United States Supreme Court on Mr. Al Qassim’s behalf seeking review of whether Mr. Al Qassim has rights under the Fifth Amendment of the U.S. Constitution and under international human rights treaties, such as the Convention Against Torture or the 1951 Convention Relating to the Status of Refugees, that restrain the Executive from transferring a Guantánamo detainee to a human rights abusing regime where he is more likely than not to face torture.

On September 20, 2007, one day before Mr. Al Qassim’s petition for certiorari was filed in the Supreme Court, the D.C. District Court dismissed Mr. Al Qassim’s habeas case for lack of jurisdiction, and the government quickly moved to cut off attorney access to Mr. Al Qassim.

On September 25, 2007, CCR filed a motion for reconsideration of the district court’s dismissal. CCR argued that the Supreme Court’s June 29, 2007 decision to hear the appeal in the Al Odah and Boumediene cases reopened the question of federal court jurisdiction over the detainees’ habeas cases and that the Supreme Court was now poised to determine the rights of the detainees. As a result of the Supreme Court’s actions, attorney access to clients pursuant to the district court’s authority should continue until the Supreme Court determined the questions of jurisdiction and legal rights. CCR also filed a petition in the D.C. Circuit Court of Appeals under the Detainee Treatment Act on September 26, 2007 to regain access to Mr. Al Qassim.

On October 5, 2007, the district court judge granted the motion for reconsideration, vacated the dismissal, stayed the case pending the outcome of Al Odah and Boumediene, and ordered that counsel access be restored. Mr. Al Qassim, once again, has access to his attorneys and can pursue protections from the U.S. government’s efforts to transfer him to Libya.