Lawyers for a Pakistani citizen who has a permanent U.S. resident visa but is now a prisoner at Guantanamo Bay, has urged the D.C. Circuit Court either to order his unconditional release, or else probe deeply into the operation of the military program for keeping detainees in the military prison camp on Cuba. The brief — the first formal arguments in the first case of civilian court review of a detainee’s designation as an “enemy combatant” — was filed on Monday, but made available on Wednesday after a security review. The brief in Paracha v. Gates (Circuit docket 06-1038) is here, and the appendix here. The government’s response is due Aug. 15, a detainee reply is set for Aug. 31, and an oral argument is set for Sept. 17.

This first Detainee Treatment Act case involves Saifullah Paracha, 59, who has been at Guantanamo since September 2004, after his capture in Thailand in July 2003. A military “Combatant Status Review Tribunal” ruled in December 2004 that he was an “enemy combatant,” who the government said had 12 specific links to al Qaeda based on information that his lawyers say was classified.

In the brief, his lawyers argued that “there is no indication that the government enabled the CSRT to assess the quality of the evidence against Paracha,” including whether some information was obtained by coercion, torture, or enticements, what sources there were, and how the panel could make “meaningful” determination if it was obliged to assume that all of the government evidence was true. Moreover, the CSRT did not have information that would have been favorable to Paracha, contradicting the asserted links to al Qaeda, according to the brief.

On legal points, the brief raises these questions:
“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 Guantanamo 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 [the Pentagon] adopted the standards and procedures required by the [Detainee Treatment Act], violated the Constitution and laws of the United States and the standards and procedures required 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 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.”


Paracha’s personal story, as recounted by lawyers in his brief, shows that he grew up in Pakistan, came to the U.S. in 1971 and became a permanent resident in 1980. H was involved in broadcasting and travel businesses while in the U.S. He moved back to Pakistan with his family in 1986, and has returned frequently to the U.S. to oversee his business interests. His lawyers say he and his wife have plans to retire to the U.S. He was captured in July 2003, and spent time at the U.S. military prison at Bagram Airfield in Afghanistan before being confined at Guantanamo in September 2004. He has been there since.

While Paracha’s DTA challenge to his “combatant” status is going forward in the D.C. Circuit, his lawyers are preparing to file an appeal to the Supreme Court by Aug. 7, seeking to revive his habeas challenge to his capture and confinement. The D.C. Circuit has ruled that Paracha’s habeas challenge was wiped out by the court-stripping provisions of the Military Commissions Act of 2006. His challenge to the CSRT designation is proceeding in the Circuit Court under the DTA, enacted in 2005.

In the brief filed Monday, Paracha’s lawyers urged the Circuit Court not to await the Supreme Court’s coming decision on whether detainees have lost their habeas rights under the MCA. The Circuit Court “should reach the merits and decide this case now because Paracha stands on a different legal footing than the Guantanamo detainees” involved in the Supreme Court cases of Boumediene v. Bush and Al Odah v. U.S. “Unlike those detainees,” the brief argued, “Paracha is a lawful permanent resident of the United States. He therefore enjoys the same constitutional rights as a citizen. Because 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.”

The brief contends that there has been a Suspension Clause violation in his case, because the alternative of review under DTA is an inadequate substitute remedy for habeas. The DTA, as interpreted by the government, the brief contended, “makes this Court little more than a rubber stamp for final decisions of a CSRT, and the CSRT process is stacked against the detainee.” Unless the Circuit Court permits “plenary and de novo review of the CSRT’s decision in this case,” DTA procedures and the MCA cutoff of habeas “cannot survive Suspension Clause challenge,” the brief contended.

The D.C. Circuit Court is reviewing in separate cases the procedures it will follow in DTA reviews such as Paracha’s, but a decision has not yet emerged in those cases — Bismullah v. Gates (Circuit docket 06-1197) and Parhat v. Gates (06-1397). The Court has told both sides in Paracha’s case that they will be allowed to brief new arguments if the Bismullah and Parhat cases are decided after briefing has been completed in Paracha’s case.

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