[00:00:01] Speaker 00: Number 16-5248. [00:00:04] Speaker 00: Sufla Paracha, detainee, Guantanamo Bay Naval Station appellant. [00:00:08] Speaker 00: Farhat Paracha, next friend, versus Donald J. Trump, President of the United States of America at ELLE. [00:00:14] Speaker 00: Mr. Hunt for the appellant, and Mr. Shee for the appellee. [00:00:46] Speaker 06: To please the court, I'm GT Hunt, appearing for the Petitioner Appellate Cycle of Paracha. [00:00:54] Speaker 06: And I'd like to reserve five minutes for rebuttal, if I may. [00:01:02] Speaker 06: This case is essentially about the separation of powers. [00:01:11] Speaker 06: recently, in separations of powers cases, the court does not just defer to the political branches. [00:01:20] Speaker 06: It is not acceptable for courts to outsource preservation of the constitutional structure to the political branches. [00:01:29] Speaker 06: That was a case involving the Affordable Care Act with different issues from this. [00:01:36] Speaker 06: But it goes to the heart of this case. [00:01:39] Speaker 06: The case here is [00:01:41] Speaker 06: in defense of one of the most important structural features of the Constitution, and that is the idea that none of us can be found guilty except through a judicial process. [00:01:58] Speaker 06: That is essentially the holding of the Boomedian case. [00:02:02] Speaker 06: The Boomedian case preserves the bill of attainder. [00:02:07] Speaker 06: as well as habeas corpus, because they are both structural features in the body of the Constitution. [00:02:15] Speaker 06: There are limitations on Congress, and the fact that the person filing the brief objecting to them may be an enemy combatant and may be outside the geographical United States is not relevant. [00:02:31] Speaker 05: So the district court, as you know, said there was no standing. [00:02:36] Speaker 05: And what's your response to that or best argument on that at this point? [00:02:43] Speaker 06: Your Honor, I really don't see that standing has any place at all in this case. [00:02:47] Speaker 06: The doctrine of standing, of course, is important. [00:02:50] Speaker 06: It's particularly important to this court. [00:02:52] Speaker 06: You deal every day with people who call themselves defenders of wildlife or whatever. [00:02:58] Speaker 06: And you have to ask the question, is this plaintiff really a proper one to represent this position? [00:03:05] Speaker 06: That doesn't apply when the person, the petitioner, is being moved against by the government. [00:03:13] Speaker 06: When these statutes were passed that attainted Saifula Baracha as a terrorist and the other people at Guantanamo, likewise, they were not asking, they were, they're not offering themselves as having standing. [00:03:29] Speaker 06: Standing was thrust upon them. [00:03:34] Speaker 06: One important thing to remember here is that being an enemy combatant is by no means the same thing as being a terrorist. [00:03:45] Speaker 06: Each of these people has been determined by some administrative procedure to be in that category, an enemy combatant. [00:03:53] Speaker 06: Whether that's rightly or wrongly, the case has not been determined in Paratch's case because his [00:04:06] Speaker 06: is not the same as being determined to be a dangerous terrorist. [00:04:11] Speaker 06: Justice Scalia, when he was on this court, put it well with that quote in the brief about Benedict Arnold may have been a traitor, but he was not also a shock lifter, and he had a right not to be called that. [00:04:24] Speaker 06: The analogy falls apart because, of course, being a traitor is disgraceful, whereas being an enemy combatant is not something subject to punishment. [00:04:37] Speaker 06: them out of further combat. [00:04:40] Speaker 06: And being a terrorist is, as I say, considerably disgraceful, certainly more disgraceful than being a shoplifter. [00:04:51] Speaker 05: The government says even if you have standing, of course, that the statute in question withdraws jurisdiction from this court over this kind of claim. [00:05:02] Speaker 05: What's your response to that? [00:05:04] Speaker 06: My response to that is the doctrine that this court accepted in Bartlett versus Bowen, which I cite in the brief. [00:05:13] Speaker 06: That's a subject that has been a subject of much scholarly debate, largely, I think, because of Professor Hart's article years ago saying that constitutional rights could be withdrawn from the federal courts at any time because they were also available in the state courts. [00:05:34] Speaker 06: That doctrine was rejected soundly by the Second Circuit in Bartaleo, is that the case? [00:05:43] Speaker 06: And this court in Bartlett v. Bowen seemed to accept that rejection. [00:05:52] Speaker 03: And we rejected the idea of Klein being applied to the Military Commission Act withdrawal jurisdiction in the Janko case, didn't we? [00:06:05] Speaker 06: I beg your pardon, Your Honor. [00:06:08] Speaker 03: Did Janko, our opinion in Janko, reject the application of Klein to the Military Commission Act? [00:06:18] Speaker 06: You mean the post-Tobal War case Klein? [00:06:21] Speaker 03: Right. [00:06:22] Speaker 03: That's what Henry Hart's article was about, the dialogue about withdrawing jurisdiction. [00:06:32] Speaker 06: Yes, Your Honor. [00:06:33] Speaker 06: I'm not sure. [00:06:34] Speaker 06: Frankly, I don't know the case you're talking about, a Guantanamo case, I think. [00:06:42] Speaker 06: I don't see where it would be relevant. [00:06:48] Speaker 03: It's relevant because the Military Commission Act did not provide a rule of decision for a cause of action that was pending. [00:06:56] Speaker 03: And that was Klein, and we held, I thought, in a case called Janko, that therefore Klein didn't apply in the Military Commission Act properly, constitutionally, with due jurisdiction, except in non-habeas cases, or in habeas cases. [00:07:14] Speaker 06: Well, perhaps it doesn't, Your Honor. [00:07:17] Speaker 06: What we're talking about here is the basic structure of the Constitution. [00:07:22] Speaker 06: In the body of the Constitution and not in amendments, we are told that we will not be judged guilty by acts of Congress. [00:07:33] Speaker 06: It's repeated again in Section 10 for the states. [00:07:39] Speaker 06: Nothing is more basic to the architecture of limited government that the founders left us with. [00:07:46] Speaker 06: Case after case has said that standing is not limited when you're confronted with an issue like that. [00:08:02] Speaker 06: Chadra was a deportable alien. [00:08:07] Speaker 06: He had received discretionary exemption from deportation. [00:08:14] Speaker 06: Congress passed a statute specifically naming him as somebody who was not entitled to that discretionary exemption. [00:08:24] Speaker 06: And he was allowed to sue with no question as to [00:08:30] Speaker 06: whether he had standing or could have the scope of his right to raise that issue. [00:08:37] Speaker 02: The only thing I've understood you to say in response to Judge Kavanaugh's question about standing is that it has no place here because the taint was thrust upon the appellant rather than he's doing anything. [00:08:55] Speaker 02: The other question raised by standing is redressability. [00:08:59] Speaker 02: What is going to happen if you prevail in this case that will change Mr. Peraccia's situation at all? [00:09:07] Speaker 06: Well, that and many other comparable issues are really precluded by this court's opinion in FORTIC. [00:09:15] Speaker 06: We rely very strongly on FORTIC. [00:09:18] Speaker 06: uh... dr forte it was ordered against him but uh... uh... he was suffering a blackened reputation because of all the publicity of this case and the underlying denial of uh... right to custody which was moved by the time the case got here and this court held very soundly that uh... those things do not [00:09:47] Speaker 06: wash away the redressability. [00:09:49] Speaker 02: So what is the stigma here that would be removed if you prevailed? [00:09:54] Speaker 06: These statutes. [00:09:56] Speaker 02: What's the stigma? [00:09:59] Speaker 02: That's what you're talking about, isn't it? [00:10:00] Speaker 02: The reputational? [00:10:02] Speaker 02: Yes. [00:10:03] Speaker 02: What is that stigma? [00:10:04] Speaker 02: What's happened to your client that is stigmatic and would go away with the statutes? [00:10:10] Speaker 06: There's a whole package of them. [00:10:13] Speaker 06: They're detailed in the briefs. [00:10:15] Speaker 06: There are mostly clauses in the authorization and appropriation acts that are passed each year. [00:10:29] Speaker 06: They say that the people at Guantanamo cannot be removed to the United States. [00:10:36] Speaker 06: Granted, they have no right to be removed to the United States, but the reason for saying that— That would still be true without the statute. [00:10:44] Speaker 06: Perhaps their removal, that they couldn't be removed to the United States would be true, but there wouldn't be that legislative finding that they were dangerous terrorists, too dangerous to be admitted to a prison in the United States. [00:10:59] Speaker 02: The statute says they can't be removed to the United States. [00:11:01] Speaker 02: Does it say because they're dangerous terrorists? [00:11:03] Speaker 02: I don't remember the statute. [00:11:04] Speaker 06: Certainly the legislative history says that. [00:11:07] Speaker 02: That wasn't enacted. [00:11:08] Speaker 02: What about the statute? [00:11:09] Speaker 02: It doesn't say that, does it? [00:11:12] Speaker 06: The standards for a bill of attainment laid out in FORTIC are clearly met. [00:11:21] Speaker 06: The actions taken are far in excess of anything that would be necessary for any kind of other collateral purpose. [00:11:34] Speaker 06: I recognize that to speak of the intention of Congress is always an iffy thing, but the eloquent statements that they can rot in hell as far as Congress is concerned, and if they can't rot in hell, they can rot in Guantanamo, these remove any doubt at all that these were punitive statutes based on a finding of guilt. [00:11:55] Speaker 06: And it's the finding of guilt that we want to remove. [00:11:57] Speaker 06: Do you have the government's brief handy? [00:12:02] Speaker 03: I'm sorry, Your Honor. [00:12:03] Speaker 03: Do you have the government's brief handy? [00:12:06] Speaker 03: Yes. [00:12:06] Speaker 03: Would you get it, please? [00:12:09] Speaker 03: And turn to page 22. [00:12:10] Speaker 06: Well, let me see. [00:12:13] Speaker 06: Perhaps the government has it. [00:12:17] Speaker 03: Page 22. [00:12:20] Speaker 03: The second full paragraph. [00:12:29] Speaker 01: All right. [00:12:29] Speaker 01: What's your answer to that? [00:12:39] Speaker 06: My answer is Bartlett v. Boeing. [00:12:45] Speaker 03: If the statute is... That's a Guantanamo case that I mentioned to you a few minutes ago, Janco. [00:12:51] Speaker 03: It deals specifically with the Military Commission Act. [00:12:54] Speaker 03: It deals with the withdrawal of jurisdiction of the district courts in non-habeas cases. [00:12:59] Speaker 03: Yours is a non-habeas case that was started in 2015, years after the Military Commission Act was passed. [00:13:07] Speaker 03: And the decision of this court holds that it constitutionally can be applied to all cases, non-habeas cases. [00:13:15] Speaker 03: So how do we have jurisdiction in this case? [00:13:18] Speaker 06: I will be glad to submit something. [00:13:20] Speaker 03: No, no, you had your opportunity in your reply briefing. [00:13:23] Speaker 03: You didn't do it. [00:13:25] Speaker 03: Thank you, Your Honor. [00:13:26] Speaker 05: You think that's unconstitutional, right? [00:13:29] Speaker 06: That's what has been canvassed in all the briefs. [00:13:36] Speaker 03: with help that it was consensual. [00:13:40] Speaker 06: Thank you, Your Honor. [00:13:41] Speaker 05: We'll give you time for rebuttal. [00:13:59] Speaker 04: May it please the court and my chief, the government. [00:14:02] Speaker 04: I want to begin with one of the two threshold issues on which the district court's judgment should be approved, and that's the issue of standing. [00:14:10] Speaker 04: It's Mr. Pratch's burden to show that he has standing to pursue these bills of attainder of claims, and unfortunately, he has been unable to do so. [00:14:19] Speaker 04: To begin with the confinement injury that Mr. Paracha alleges, the theory here appears to be that these 32 provisions in some way keep him contained in Guantanamo, and otherwise he would be transferred or released elsewhere. [00:14:33] Speaker 04: But as Mr. Paracha himself agrees, the executive branch has sole discretion when it comes to the confinement, release, and exchange of Guantanamo detainees. [00:14:45] Speaker 04: particularly those detained in 100 percent. [00:14:47] Speaker 05: But this removes the discretion that the executive branch would otherwise have. [00:14:52] Speaker 04: That's right, Your Honor, but the discretion must be exercised before the removal of that discretion is relevant. [00:15:00] Speaker 05: How is a detainee [00:15:02] Speaker 05: going to be able to establish standing. [00:15:04] Speaker 04: So a detainee could point to, for example, evidence that the executive branch has said, I want to move this particular detainee out of here, but these statutes are preventing me from spending any money [00:15:19] Speaker 04: on doing so. [00:15:20] Speaker 04: And I think it's especially important to remember that even after the statutes were enacted, individuals were transferred or released from Guantanamo. [00:15:29] Speaker 04: Mr. Peraccia was not. [00:15:31] Speaker 04: So I agree, Your Honor, that in that circumstance, it would be a harder case for the government to argue the standing points we've made. [00:15:37] Speaker 05: But here, every time- Let's just take this [00:15:41] Speaker 05: in its starkest terms. [00:15:42] Speaker 05: Let's suppose, hypothetically, that the statute is unlawful, it's unconstitutional, the transfer statute, and that they have a valid claim on the merits of some kind, or a different detainee has a valid claim on the merits. [00:16:01] Speaker 05: And you're saying the executive branch, unless they publicly say, we want to transfer this person, that the person can't get into court, [00:16:11] Speaker 05: to challenge the statute as being unconstitutional. [00:16:15] Speaker 04: So I think a public statement would help. [00:16:18] Speaker 04: And I'm afraid, Your Honor, I can't really come up with any sort of other hypothetical things such a plaintiff could raise in order to establish standing. [00:16:26] Speaker 04: But my point is that whatever that line may be, Mr. Paratch's arguments here fall far short of even approaching that line. [00:16:37] Speaker 05: But I just think the executive branch has exercised its discretion, as you point out, to transfer [00:16:43] Speaker 05: people would like to transfer people, as said in the past. [00:16:47] Speaker 05: And this statute removes some of that discretion. [00:16:51] Speaker 05: And if you're one of the detainees, that seems like you're the regulated party for Lujan purposes, and it's eliminating the possibility [00:17:04] Speaker 05: which may or may not be exercised by the executive branch, but it eliminates the possibility in a way that may affect the executive branches. [00:17:14] Speaker 05: exercise of discretion. [00:17:16] Speaker 05: I think what you might be missing is that the executive branch's exercise of discretion could itself be influenced by the presence of the statute, which they say is illegal. [00:17:24] Speaker 04: Right, that's right. [00:17:24] Speaker 04: So I think I understand the rest of your honest question now. [00:17:27] Speaker 04: So certainly, you know, it is not essential to the government's argument that this sort of removal not be deemed an injury, in fact, to Mr. Paroch. [00:17:39] Speaker 04: I believe, you know, don't think that the court needs to say anything at all about that. [00:17:43] Speaker 04: I take the premise of your question, Your Honor, to be, well, perhaps the removal of this ability to be transferred or released could be an injury, and maybe so. [00:17:53] Speaker 04: But there still isn't anything that this court, in ordering the district court to declare these bills of attainder, would be able to do about that. [00:18:03] Speaker 04: As Mr. Peraccia himself has conceded in the litigation below, such a declaration would have no impact on the conditions or the lawfulness or the place or any other aspect of his detention. [00:18:19] Speaker 05: But isn't it possible that the executive branch with these statutes in place says we're not even going to think about transferring people, at least to the extent prohibited by statute, because what's the point? [00:18:28] Speaker 04: I think it's possible, Your Honor, but it's definitely not what is happening. [00:18:34] Speaker 04: So first of all, even with these statutes in place, many people have been released from Guantanamo, including 10 individuals who were released to Oman in January of this year. [00:18:45] Speaker 04: Moreover, there exists an ongoing review process to determine whether or not an individual [00:18:52] Speaker 04: should continue to be detained in Guantanamo if that individual poses a continuing national security threat. [00:18:59] Speaker 05: Wait, no one's been transferred, or correct me if I'm wrong, in violation of the statute, have they? [00:19:04] Speaker 04: No, Your Honor. [00:19:05] Speaker 04: Exactly. [00:19:06] Speaker 05: That's because the board... And that's the point. [00:19:09] Speaker 05: The question is, suppose the executive branch otherwise might want to transfer [00:19:15] Speaker 05: someone into a place, the U.S. [00:19:18] Speaker 05: or elsewhere, that is prohibited by the statute, and they say, we're not even going to think about that because the statute prohibits it. [00:19:24] Speaker 05: So it seems like a circular argument, in other words, in the sense that you're saying, well, the executive branch is going to release them anyway. [00:19:31] Speaker 04: No, I don't think so. [00:19:33] Speaker 04: I think the argument has a different spin on it, which is Mr. Paracha has not shown any indication that the executive branch would be willing to do so, or that the executive branch would be somehow interested in transferring Mr. Paracha. [00:19:50] Speaker 04: in the way that he might be able to have a stronger case if he had that. [00:19:54] Speaker 05: But that's going to be really hard evidence to obtain. [00:19:59] Speaker 04: Right. [00:19:59] Speaker 04: And unfortunately, as the Supreme Court held in Clapper, the fact that evidence may be difficult to obtain does not mean that somehow the constitutional restrictions of Article III can be. [00:20:12] Speaker 03: Is the decision-making process within the executive branch [00:20:16] Speaker 03: A two-step process. [00:20:18] Speaker 03: First we decide whether we should transfer this individual and then the next question is where. [00:20:24] Speaker 04: So I'm not sure whether I would characterize it in that way and to be honest, Your Honor, I'm not sure I know the exact parameters of [00:20:34] Speaker 04: the decision making structures within the executive branch, but what we do know is that there have been not one, but two administrative review procedures created by the executive branch to assess the suitability of Guantanamo detainees for transfer. [00:20:49] Speaker 04: The first of those was the Guantanamo Review Task Force, and the second of those was the Periodic Review Board. [00:20:55] Speaker 04: both procedures, far from recommending Mr. Paraccio for transfer or release, recommended that he instead be continued to be detained in Guantanamo Bay under the 2001 AUMF. [00:21:08] Speaker 04: So, because the executive... [00:21:12] Speaker 03: Your position is that once that decision is made, then any statutes from Congress that say you can't transfer somebody to Yemen or what are the other countries? [00:21:28] Speaker 04: Iran, Yemen, Syria? [00:21:35] Speaker 04: Libya, Somalia, Syria, and Yemen are the four countries specified in the one statute. [00:21:41] Speaker 03: So that has no effect on him because he's not going to get transferred anyway. [00:21:44] Speaker 04: That's absolutely right. [00:21:46] Speaker 04: And it's for that reason that redressability is a difficult bar for Mr. Parraja to meet here. [00:21:53] Speaker 02: Mr. Chief, for your information, we have had cases involving individuals who were ruled no longer whatever the phrase is necessary or a threat or something, and eligible for transfer for whom a place could not be found as of the time the case arose. [00:22:11] Speaker 04: That's correct, Your Honor. [00:22:12] Speaker 04: And indeed, I'm informed by my clients that, in fact, the Periodic Review Board has, in a few circumstances, recommended in favor of transfer of certain detainees on the theory that, in the judgment of the board, the detainees no longer posed a continuing national security threat. [00:22:30] Speaker 02: That was the phrase I was looking for. [00:22:31] Speaker 04: Right. [00:22:32] Speaker 04: But those detainees have not yet been released. [00:22:35] Speaker 02: would suggest that they're identified first, at least in those cases, the individuals identified first. [00:22:40] Speaker 04: That's correct, Your Honor. [00:22:41] Speaker 04: I just didn't want to accidentally give too broad of a statement. [00:22:45] Speaker 04: But what we do know about the procedures in this case indicates that Mr. Paraccio hasn't even met that administrative threshold. [00:22:53] Speaker 05: If you meet that, do you have standing to challenge this? [00:22:57] Speaker 04: I don't think so, Your Honor, because, for example, the Periodic Review Board is only authorized to make a very narrow recommendation whether an individual poses a continuing significant threat to United States security. [00:23:12] Speaker 04: But that does not mean that the executive branch will transfer detainees. [00:23:18] Speaker 04: I was just saying to Judge Ginsburg, several detainees for whom that determination has been made have not been transferred yet. [00:23:23] Speaker 04: And that's because the decision to transfer detainees encompasses both security considerations and a host of other considerations, such as, for example, whether we can identify another country that is willing to take these detainees. [00:23:37] Speaker 05: So it has to be step one, suitable for transfer, and step two, we would like to transfer this person. [00:23:43] Speaker 04: The exercise of executive discretion, Your Honor. [00:23:45] Speaker 05: And until then, the detainee can't get into challenge. [00:23:52] Speaker 05: go along with the arguments here. [00:23:54] Speaker 05: 2241 withdrawals jurisdiction. [00:24:00] Speaker 05: And in your view, I just want to make sure I have the government's view on this. [00:24:03] Speaker 05: The Congress can withdraw jurisdiction over constitutional claims, including those that are not for money damages. [00:24:10] Speaker 04: Yes, your honor. [00:24:11] Speaker 04: That's the implication of Janco's holding. [00:24:15] Speaker 04: The text of the statute is quite clear. [00:24:17] Speaker 05: Is that true of all constitutional claims? [00:24:19] Speaker 04: I'm not sure, Your Honor, but certainly of the constitutional claim presented here, that claim is indistinguishable from the claim at issue in Janco. [00:24:28] Speaker 04: So in Janco, we had a former detainee argue that the government violated some very weighty constitutional rights that he asserted that he had, and the detainee further argued [00:24:39] Speaker 04: that Bivens money damages were the only adequate remedy, and the court took both of those as givens in that case. [00:24:48] Speaker 04: Nonetheless, the court held that there was no jurisdiction under 22-41-2. [00:24:52] Speaker 04: Right. [00:24:53] Speaker 05: And that's a damages case. [00:24:55] Speaker 05: Does your position have anything to do with the fact that it's a detainee? [00:24:59] Speaker 05: In other words, could Congress withdraw a jurisdiction over [00:25:03] Speaker 05: constitutional claims, establishment clause claims, Fourth Amendment claims, Eighth Amendment claims. [00:25:13] Speaker 03: That's a stronger argument for allowing Congress to withdraw jurisdiction. [00:25:18] Speaker 03: That's right. [00:25:19] Speaker 03: Because the state courts are available. [00:25:22] Speaker 03: And if you read the dialogue, that's one of the points that Professor Hart made. [00:25:30] Speaker 03: But that's not true of the Guantanamo detainees. [00:25:35] Speaker 03: The state courts are not of him. [00:25:37] Speaker 03: That's right. [00:25:38] Speaker 03: So the government has a weaker claim with respect to the Guantanamo detainees than it does to U.S. [00:25:47] Speaker 03: citizens. [00:25:49] Speaker 04: I'm sure I agree with that, Your Honor, because in JANCO, the court was presented with precisely the points of reference. [00:25:56] Speaker 03: Oh, I know. [00:25:57] Speaker 03: The precedent is there. [00:25:58] Speaker 04: So it's, I think, clear from JANCO and the plain text of 2241E2 that at least for purposes of this claim, the allegation that there may not be any other adequate remedy for the bills of attainder [00:26:15] Speaker 04: at issue does not mean that the court can discard JANCO or ignore 2241E2. [00:26:22] Speaker 04: But again, if the court is skeptical of the government's position on 2241E2, what remains clear is that, you know, for the independent threshold reason of the fact that Mr. Peraccia cannot establish standing, the judgment of the district court... Do we have discretion despite steel code to [00:26:40] Speaker 03: decide only that we have precedent that says there's no jurisdiction. [00:26:45] Speaker 03: We don't have to get to the standing issue? [00:26:47] Speaker 04: I think you can do that, Your Honor, because the court, as Steelco says, has its pick of threshold jurisdictional issues. [00:26:54] Speaker 04: And standing would be one. [00:26:56] Speaker 04: Subject matter jurisdiction would be another. [00:26:59] Speaker 04: And we think both are equally easy, equally valid ways to affirm what was the correct judgment of the district court. [00:27:09] Speaker 04: Unless the court has any further questions, we ask that the judgment of the district court be approved. [00:27:16] Speaker 01: Thank you. [00:27:25] Speaker 06: If I may respond to your honor's question about are there any precedents defying these statutes, I would remind the court and the government of the swap for Bo Bergdahl, the American serviceman. [00:27:44] Speaker 06: That was done desperately in defiance of these statutes, and it caused quite a stir. [00:27:51] Speaker 06: I think there was even muttering about impeachment. [00:27:55] Speaker 06: And that really illustrates what this case is all about. [00:27:59] Speaker 06: It is about the separation of powers. [00:28:03] Speaker 06: Paracha is not asking to be freed. [00:28:05] Speaker 06: That will be another process, as the government outlined. [00:28:13] Speaker 06: He is asking that this finding of disgrace be taken away. [00:28:21] Speaker 05: And that the executive... I guess I'm not finding the reputational part of this all that compelling. [00:28:28] Speaker 05: And I understand the point about you would be more likely to get a transfer without this statute in place. [00:28:38] Speaker 05: I can understand that argument. [00:28:40] Speaker 05: But the reputational argument, what? [00:28:42] Speaker 06: Well, it's particularly appropriate for him because he is a pro American Pakistani. [00:28:47] Speaker 06: He's a TV producer. [00:28:50] Speaker 05: What's the reputational harm from this statute? [00:28:54] Speaker 06: Uh, as the four tech case makes clear, [00:28:58] Speaker 06: You have to go behind the statute and see what the finding that it implies. [00:29:04] Speaker 06: In Forteck's case, it implied that he'd been found to be a child abuser. [00:29:09] Speaker 06: In Paracha's case, it definitely finds that his entire life, 16 years living in America, [00:29:14] Speaker 06: many American relatives. [00:29:16] Speaker 05: Isn't that from the finding of his being an enemy combatant or the status as an enemy combatant? [00:29:23] Speaker 06: No, that's the essence of this case. [00:29:25] Speaker 06: To be an enemy combatant is not the same as to be a dangerous terrorist. [00:29:31] Speaker 06: And that's how he's been labeled unquestionably by these bills of attainment. [00:29:38] Speaker 05: But he's been labeled not suitable for release by a different process, not by the statute. [00:29:45] Speaker 02: statutes calls him an enemy combatant. [00:29:47] Speaker 02: It doesn't say terrorist. [00:29:48] Speaker 02: It doesn't say anything of the sort. [00:29:50] Speaker 06: Well, it's internally discretionary within the executive branch, within the limits, of course, of the habeas corpus, which will be duly heard, I suppose, if he isn't released. [00:30:04] Speaker 05: OK. [00:30:04] Speaker 06: With that, thank you very much. [00:30:06] Speaker 05: Thank you. [00:30:06] Speaker 05: The case is submitted.