The D.C. Circuit said a Pakistani national detained at Guantánamo Bay for nearly 20 years has failed to show that the appeals court can review a district court's denial of his attempt to force the government to determine if he's eligible for repatriation.

U.S. Circuit Judge Bradley N. Garcia, who penned the panel's opinion on Tuesday, said Ammar al-Baluchi's sole theory, that the D.C. Circuit can review U.S. District Judge Paul L. Friedman's decision because a favorable repatriation determination would allow him access to proper medical care, fails because nothing requires the U.S. government to repatriate him immediately.

According to the judge, al-Baluchi has been detained at the U.S. naval base in Guantánamo Bay, Cuba, since 2006 over claims he supported and facilitated the September 11, 2001, attacks as a senior member of al-Qaeda.

During this time, al-Baluchi petitioned for a writ of habeas corpus in federal district court in 2008, but his case was paused after the government convened a military commission to try al-Baluchi for terrorism, murder in violation of the law of war and other offenses, Judge Garcia said. Al-Baluchi's trial has yet to take place, leaving his habeas case at a standstill, the judge said.

Alleging he suffered years of torture by the U.S. Central Intelligence Agency before he was transferred to the Guantánamo base, al-Baluchi moved to lift the stay in his habeas proceedings and compel the government to convene a Mixed Medical Commission to assess his eligibility for repatriation in 2022, Judge Garcia said.

In his request, al-Baluchi argued this extreme mistreatment, combined with the length of his detention at Guantánamo Bay, caused him to sustain brain injuries and other serious neurological issues that qualify him for repatriation, the judge said.

But Judge Friedman denied his plea, finding detainees like al-Baluchi, who are captured during a noninternational armed conflict are not entitled to a Mixed Medical Commission examination under the Third Geneva Convention or Army Regulation 190-8, according to the opinion.

In reviewing whether the D.C. Circuit has the authority to review Judge Friedman's ruling, Judge Garcia said courts of appeal can generally only review "final decisions" of district courts and that no such order has been entered in the underlying habeas proceedings.

Anticipating this roadblock, al-Baluchi argued on appeal that two exceptions to the final-order rule apply. First, Judge Friedman's decision is immediately appealable because it had the "practical effect" of denying injunctive relief and threatens "serious, perhaps irreparable, consequence" if not immediately reviewed, according to al-Baluchi.

Al-Baluchi also claimed that because Judge Friedman's decision resolves important issues separate from the merits and is effectively unreviewable on appeal from a final judgment, it must be treated as final under the collateral-order doctrine. But Judge Garcia said, "[b]oth exceptions demand a showing of serious or irreparable harm requiring immediate review."

While al-Baluchi claims he currently lacks access to meaningful medical treatment and that a favorable determination by a Mixed Medical Commission would allow him to be quickly repatriated and receive proper medical care, the panel said there's no certainty his repatriation would take place right away.

Rather, according to Article 115, paragraph 2 of the Third Geneva Convention, Judge Garcia said al-Baluchi can only benefit from such a repatriation determination before the end of his judicial proceedings or the completion of his punishment if the U.S. government consents. This view is confirmed by both the 1960 and 2020 commentary to Article 115, the judge said.

"Al-Baluchi offers no rebuttal to these authorities in his briefs. Indeed, in the district court, al-Baluchi seemed to accept that Article 115, paragraph 2 applied, and that the government could delay his repatriation until the end of his military-commission proceedings despite a favorable Mixed Medical Commission determination," the opinion said.

As for other potential jurisdictional arguments, including that a favorable repatriation determination could prompt the U.S. government to consent to his repatriation even while his prosecution remains pending, the panel said al-Baluchi failed to assert any other claims.

In response to the panel's decision, Alka Pradhan, human rights counsel for al-Baluchi at the Guantánamo Bay Military Commissions, told Law360 Wednesday that she's disappointed the D.C. Circuit decided this particular issue on a technical jurisdiction basis, given the critical nature of al-Baluchi's medical condition.

Pradhan also said she disagrees with the panel's assessment that Judge Friedman's decision was not final because al-Baluchi's habeas proceedings have been suspended during the pendency of his military commission's proceedings, which have been ongoing in pretrials for 12 years.

"So, for all intents and purposes, when we look at practicality, this was a final order from the district court, and so we do disagree respectfully with the D.C. circuit's finding, but we are currently internally discussing whether or not to appeal," Pradhan said.

Representatives for the government did not immediately respond to requests for comment Wednesday.

U.S. Circuit Judges Cornelia T.L. Pillard, Robert L. Wilkins and Bradley N. Garcia sat on the panel for the D.C. Circuit.

Al-Baluchi is represented by Alka Pradhan.

The government is represented by Benjamin M. Shultz and Sharon Swingle of the U.S. Department of Justice.

The case is Ammar Al-Baluchi v. Pete Hegseth et al., case number 23-5251, in the U.S. Court of Appeals for the D.C. Circuit.

--Editing by Drashti Mehta.