Ahmed v. Obama

• Decision Date: 11 May 2009
• Docket Number: Civil Action No. 05-1678 (GK).
• Parties: Alla Ali Bin Ali AHMED, et al., Petitioners, v. Barack H. OBAMA, et al., Respondents.
• Court: U.S. District Court — District of Columbia

Page 51

613 F.Supp.2d 51

Alla Ali Bin Ali AHMED, et al., Petitioners, v. Barack H. OBAMA, et al., Respondents.

Civil Action No. 05-1678 (GK).

United States District Court, District of Columbia.

May 11, 2009.

Agnieszka M. Fryszman, Kit A. Pierson, Cohen Milstein Sellers & Toll, PLLC, Brent Nelson Rushforth, James G. Szymanski, Nicole A. Travers, Day Pitney,

LLP, Washington, DC, Gitanjali Gutierrez, Shayana Devendra Kadidal, M. Alexander Bowie, II, Day Pitney LLC, New York, NY, Janet Elizabeth Haws Snell & Wilmer LLP Salt Lake City, UT, for Petitioners.

John Hunter Bennett, Paul Edward Ahern, Scott Michael Marconda, Terry Marcus Henry, Alexander Kenneth Haas, Andrew I. Warden, August Edward Flentje, David Hugh White, Julia A. Berman, Patrick D. Davis, Robert J. Prince, U.S. Department of Justice Washington, DC, for Respondents.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Petitioner Alia Ali Bin Ali Ahmed ("Ali Ahmed" or "the Petitioner") has been detained since 2002, when he was a teenager, at the United States Naval Base at Guantanamo Bay Cuba. Respondents ("the Government") argue that his detention is justified under the Authorization for the Use of Military Force, Pub.L. NO. 107-40 § 2(a), 115 Stat. 224, 224 (2001) ("AUMF"), which grants the Executive the power to detain individuals engaged in certain terrorist activities. The Petitioner disagrees, denies that he has ever engaged in such activities, and has filed a petition for a writ of habeas corpus [Dkt. No. 1].

The matter is before the Court on Cross-Motions for Judgment on the. Record [Dkt. Nos. 183 and 189]. Upon consideration of the Motions, the Oppositions, extensive oral argument, and the entire record herein, Ali Ahmed's habeas corpus petition and Motion are hereby granted.

I. BACKGROUND

A. Procedural History

Petitioner filed his habeas corpus petition on August 22, 2005 [Dkt. No. 1]. After filing, there was extensive preliminary litigation regarding the Court's jurisdiction to entertain detainees' petitions, the applicability of various statutes, and the appropriate procedures to be used.

After more than six years of litigation, the most important legal issue was resolved by the Supreme Court in Boumediene v. Bush, 553 U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). The Court ruled that detainees at Guantanamo Bay, none of whom are citizens of the United States, are entitled to bring habeas petitions under Article I of the Constitution, and that the federal district courts have jurisdiction to hear such petitions.

The Court did not define what conduct the Government would have to prove, by a preponderance of the evidence, in order to justifiably detain individuals—that question was left to the District Courts. Id. at 2240 ("We do not address whether the President has the authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court."). Nor did the Supreme Court lay down specific procedures for the district courts to follow in these cases.

Boumediene was, however, definitive on at least two points: first, that the detainees are entitled to a prompt hearing, 128 S.Ct. at 2275 ("The detainees in this case are entitled to a prompt habeas corpus hearing."), and second, that the District Courts are to shape the contours of those hearings, id. at 2276 (finding that balancing protection of the writ and the Government's interest in military operations, "and the other remaining questions[,] are within the expertise and competence of the District Court to address in the first instance.").

In an effort to provide the prompt hearings mandated by the Supreme Court, many of the judges in this District agreed to consolidate their cases before former Chief Judge Thomas Hogan, for purposes of streamlining procedures for, and management of, the several hundred petitions filed by detainees. See Order (July 1, 2008) [Civ. No. 08-442, Dkt. No. 1]. On November 6, 2008, after extensive briefing from Petitioners' counsel and the Government, Judge Hogan issued a Case Management Order ("CMO") to govern the proceedings. This Court adopted, in large part, the provisions of that Order, while modifying it somewhat, as noted in Appendix A to Dkt. No. 152.

Much pre-hearing activity has taken place under this Court's Case Management Order. The Government has filed the exculpatory evidence, automatic discovery, and additional discovery required under the CMO. The Government filed its Amended Factual Return on October 10, 2008, and amended it again on December 11, 2008. The Petitioner responded with his Traverse on March 12, 2009. After a period of extensive discovery, both parties filed substantial briefs accompanied by extensive exhibits.

On January 21, 2009 [Dkt. No. 129], the Court set April 14, 2009, as the date for the "merits hearing" on the Cross-Motions for Judgment on the Record. The hearing was continued to April 16, 2009. Less than a week before the original date for the hearing, and just before the Easter weekend, the Government informed Petitioner's counsel early in the day of April 9, 2009, and informed the Court later that afternoon at the Pre-Trial Conference, that it would be turning over to the Petitioner approximately 2000 pages of "newly available" material potentially related to the hearing. Over the holiday weekend, the Government refused to tell Petitioner's counsel whether the last-minute submission was either "inculpatory or exculpatory." Tr. at 15, 19, 21 (Apr. 16, 2009).

The Government did not make clear at what point in time these materials came into its possession. What is clear is that they were packaged into a Factual Return and produced them in another petitioner's case on April 3, 2009. Id. at 18. The Government provided these materials to a second detainee's counsel on April 7, 2009. Id. at 19, 27. Yet nothing was made available to Petitioner's counsel until April 10, 2009. On April 13, 2009, the Government submitted a subset of these documents to the Petitioner and the Court, referring to it as a Supplement to the record [Dkt. No. 205].

On April 14, 2009, Petitioner moved to strike this Supplement [Dkt. No. 207]. The Government claimed that it had pointed out to Petitioner's counsel information that related to Petitioner in the form of a roughly 200-page Supplement that pared down the larger filing (the "needle [in the haystack]," according to the Government), and that logistical challenges related to compiling factual returns made late production unavoidable in this case. Tr. at 18-22 (Apr. 16, 2009).

The Court granted the Motion to Strike on the grounds that there was no way that Petitioner could have carefully examined even the pared-down Supplement at the last minute while preparing for this Merits Hearing, nor could counsel have done any independent investigation of what was in the materials even if he had been able to read them all. The Supplement was not admitted as part of the record.

II. STANDARD OF REVIEW

The Government bears the burden of establishing that detention is justified. See Boumediene, 128 S.Ct. at 2270; Hamdi v. Rumsfeld, 542 U.S. 507, 533-34, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). It must do so by a preponderance of the evidence. Order, Appendix A at § II.A (Feb. 12, 2009) [Dkt. No. 152-2]; see also Basardh v. Obama, 612 F.Supp. 30, n. 12 (D.D.C.2009).

Initially, the Government took the position that Article II of the Constitution and the AUMF granted the President the authority to detain individuals. See Gherebi v. Obama, 609 F.Supp. 43, 53 n. 4 (D.D.C. 2009). The Government asserted, "[a]t a minimum, ... the ability to detain as enemy combatants those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies." Resp't's statement of Legal Justification For Detention at 2 [Dkt. No. 103].

Since the change in administration, the Government has abandoned Article II as a source of detention authority, and relies solely on the AUMF. Id. at 53, n. 4. Further, it no longer uses the term "enemy combatant." Its refined position is:

"[t]he President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."

Resp't's Revised Mem. Regarding the. Gov's Detention Authority Relative to Detainees Held at Guantanamo Bay at 3 [Dkt. No. 174].

III. ANALYSIS

A. Evidentiary Presumptions

As a preliminary matter, some attention must be given to the nature of the evidence that has been presented in this case, and how the Court, as fact-finder, will go about evaluating that evidence. In attempting to meet its burden, the Government has provided evidence in the form of classified intelligence and interview reports that allegedly justify the Petitioner's detention. The reports contain the statements of Petitioner, as well as statements made by other detainees, that the Government argues demonstrate the Petitioner's status as a substantial supporter of the Taliban and/or al-Qaida.

The Government requested that a rebuttable presumption of authenticity be granted to all the exhibits it intends to introduce. Given its representations that the specific documents included in its case against Petitioner, as well as the documents provided to Petitioner's counsel in discovery, have all been maintained in the ordinary course of business, the Court will presume, pursuant...