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November 21, 2008 6:01 PM

Wilmer Kicks off Week of Detainee Cases with Win

Posted by Zach Lowe

Within 24 hours of the 2004 opinion in Rasul v. Bush, in which the U.S. Supreme Court ruled that foreign nationals detained abroad could challenge their detentions in U.S. courts, a team from Wilmer Cutler Pickering Hale and Dorr was on the phone with human rights lawyers asking to work with clients who had a solid habeas case.

They wound up with six Algerian nationals detained in Bosnia in 2001. In June, the Wilmer team won the landmark Boumediene v. Bush, in which the U.S. Supreme Court ruled that enemy combatants could mount habeas challenges in U.S. courts. Wilmer's clients went first, and yesterday, a judge on the U.S. District Court for the District of Columbia ordered five of the six men freed, citing a lack of evidence to hold them.

It was a victory the Wilmer team (mainly partners Stephen Oleskey, Robert Kirsch, and Mark Fleming) could barely imagine over their years of traveling to Gitmo, relying on just two translators who were rarely available, and dealing with the government's continued opposition, Kirsch says.

Even better -- Judge Richard Leon, a George W. Bush appointee, urged the Justice Department not to appeal.

"I don't think I've ever seen a decision with that kind of admonition in it," says Kirsch, who estimates he's spent between 700 and 1,000 hours per year on the Gitmo matter since mid-2004.

The detainees will remain locked up as Justice decides what to do.

As Leon issued his ruling, a team from Debevoise & Plimpton urged a three-judge panel at the U.S. Court of Appeals for the D.C. Circuit (in a separate case) to deny the Justice Department's argument that detainees, following Boumediene, can no longer challenge their detentions at the D.C. Circuit-- a process Congress authorized in the 2005 Detainee Treatment Act. The Justice Department has argued that Boumediene closed off the Circuit route by opening the traditional habeas route; the Debevoise team, led by counsel Jennifer Cowan, disagrees, and says detainees should be able to use whichever strategy they believe will be faster.

Federal courts will hear three other detainee cases on Monday and Tuesday; Am Law firms have major roles in two of them. (See this post from SCOTUSblog for a nice primer.)

• We've written extensively on the case of the 17 Chinese Uighurs still being held at Gitmo even though a federal court ruled in September that they are not enemy combatants and should be freed. The problem: they can't return to China, where they'll likely face torture, and the executive branch says courts do not have the power to release foreign detainees into the U.S.

On Monday, a team from Bingham McCutchen will ask for the Uighurs' release into the U.S. during a hearing at the D.C. Circuit. The government is arguing it has the right to set the terms of release for any foreign prisoners, says Susan Baker Manning, a Bingham partner on the case.

"That's a very broad argument," she says. She also called it "frankly political, since (releasing the prisoners here) will put the lie to the notion that Guantanamo is holding the worst of the worst, and it will do so in a way that will make it very easy for the media to find them without even going abroad."

• Also Monday, a U.S. district court will decide how much evidence the government must disclose to an Ethiopian national who confessed, allegedly under torture, to being part of a terrorist plot against the U.S. Several nonprofits are handling that case.

• Finally, on Tuesday, the U.S. Supreme Court will decide whether to hear Al-Marri v. Pucciarelli, the case of a Qatari man who was living as a graduate student in the U.S. when the government detained him because of his suspected ties to terrorists. Al-Marri has never been charged with any crime, and his lawyers (led by the American Civil Liberties Union) claim the government cannot hold him indefinitely without allowing him to challenge his detention -- just as those captured abroad are allowed to do under Boumediene. Partners from Paul, Weiss, Rifkind, Wharton & Garrison have assisted on the case, and a team from Mayer Brown wrote an amicus brief supporting Al-Marri.

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