Sympathy but No Court Win for Released Detainee

10/28/2016 7:32:00 AM, Britain Eakin

     WASHINGTON (CN) - A federal judge agreed with the United States that freeing a man from Guantanamo Bay after 12 years without charges mooted his legal challenge.
     Shawali Khan was repatriated to Afghanistan in December 2014, but the former detainee claims to suffer ongoing harm from having been designated as a member of Hezb-e-Islami, an al-Qaida and Taliban affiliate.
     For one, the Afghan government seized the deeds to his family's fruit orchard when he was captured in 2002. Khan argues that a successful outcome in Washington with his petition for habeas relief would help him persuade the Afghan government to return that land.
     Khan also says Afghan government officials provided The New York Times and CNN with his photo, after which both identified him as Mullah Abdul Rauf Khadim, a recruiter for the Islamic State group in Afghanistan whom the United States killed in an airstrike.
     Lastly, travel restrictions that Khan faces from the Afghan government prevent him from going to India where he can be treated for hearing loss he sustained from "loud blaring music" while in CIA custody, before he got to Guantanamo.
     U.S. District Judge John Bates voiced sympathy but found the alleged injuries too speculative to warrant the court's jurisdiction.
     "Even if the court assumes that these instances of mistaken identity were caused by Khan's detention at Guantánamo Bay, any reputational harm that flows from that is not 'susceptible to judicial correction,'" the Oct. 25 ruling states.
     Looking specifically at Khan's inability to get a passport from the Afghan government, Bates said his hands are tied.
     "The court is sympathetic to the pickle in which Khan seemingly finds himself: he is unable to receive medical treatment for injuries allegedly sustained while in U.S. custody because of his history of being held in U.S. custody," the 10-page ruling states. "However, this injury is not redressable by a federal court."
     Bates acknowledged that there is increasing evidence of harms Guantanamo detainees experience from their detention. In the ruling, the judge cited a recent New York Times article detailing mental health issues plaguing some former detainees.
     Discussing the ruling in an interview, J. Wells Dixon with the Center for Constitutional Rights said he found this interesting.
     "The District Court acknowledges that with the passage of time there is ever more evidence of the harm caused by the stigma of Guantanamo," Dixon said. "That's unique. That is a judicial recognition of actual harm to these men simply by having been detained at Guantanamo. The problem is, the government manipulated the proceedings in this case in order to avoid a ruling that might have favored Mr. Khan."
     Neither Khan's attorney, Leonard Goodman, nor the Justice Department opted to comment on Tuesday's ruling.
     Bates has been presiding over Khan's habeas claims for years -- upholding the man's detention in 2009, once more in 2010 and again in September 2014.
     Khan won his release in December 2014 after the government disclosed information to his attorneys.
     The United States argued that freeing Khan mooted his habeas case.
     Bates declined to address whether the government's "delay in disclosing exculpatory evidence could ever defeat mootness."
     "Here, it is sufficient to note that the government appears to have made a good faith effort to keep the court and Khan's counsel informed about new evidence as it became available," the ruling states. "Thus, even if the court were to assume that an intentional delay could defeat mootness in some circumstances, it certainly does not do so here."
     When the D.C. Circuit upheld Khan's habeas denial in 2011, the judge who signed the unanimous opinion was future Supreme Court nominee Merrrick Garland.
     Dixon with the Center for Constitutional Rights said the use of that secret evidence still matters.
     "If the government had not withheld evidence for so many years, and if the case had not been decided on the basis of secret evidence initially, then the case might have been decided differently, and Shawali Khan might have been released with a court ruling clearing his name," Dixon said in an interview. Attachment