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Federal judge allows habeas petitions to proceed until military commissions referral

[JURIST] A judge for the US District Court for the District of Columbia on Tuesday [official website] granted [opinion; PDF] the government's motion to hold in abeyance the habeas corpus petitions of two Guantanamo Bay [JURIST news archive] detainees, but only if and when the charges against the pair are referred to military commissions. The detainees, Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmen Al Kandari, have been charged with providing material support for terrorism and conspiracy, but the Convening Authority has not yet referred the charges to a military commission. Judge Colleen Kollar-Kotelly [official profile] said a stay of a habeas petition is proper when proceedings would interfere with a military commission, but found:

that [the court] cannot interfere with the findings or rulings of a military commission that does not, and may never, exist. ... Entry of an immediate stay under these circumstances (for reasons that may never materialize) is inconsistent with the Supreme Court’s admonition that "[t]he detainees in these cases are entitled to a prompt habeas corpus hearing."
Kollar-Kotelly concluded that the habeas proceedings should continue until charges are referred to military commissions.

In December, Judge Richard Leon of the US District Court for the District of Columbia ruled that the government could continue to hold two detainees [JURIST report] who had filed habeas petitions challenging their detention, finding the government had met its burden of showing that the men were being lawfully detained under the court's definition of "enemy combatant." In November, Leon ordered the release of five Algerian detainees [JURIST report] in the first rulings on habeas petitions since the June Supreme Court decision [JURIST report] in Boumediene v. Bush, granting them the right to challenge their detention.

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