Ali v. Trump

• Decision Date: 10 August 2018
• Docket Number: Civil Case No. 10-cv-1020 (RJL)
• Citation: 317 F.Supp.3d 480
• Parties: Abdul Razak ALI, Petitioner, v. Donald J. TRUMP, et al., Respondents.
• Court: U.S. District Court — District of Columbia

317 F.Supp.3d 480

Abdul Razak ALI, Petitioner,

v.Donald J. TRUMP, et al., Respondents.

Civil Case No. 10-cv-1020 (RJL)

United States District Court, District of Columbia.

Signed August 10, 2018

H. Candace Gorman, Law Office of H. Candace Gorman, Chicago, IL, J. Wells Dixon, Shayana Devendra Kadidal, Center for Constitutional Rights, New York, NY, for Petitioner.

Alexander Kenneth Haas, Blanche L. Bruce, Charlotte A. Abel, U.S. Department of Justice U.S. Attorney's Office, Dalin Riley Holyoak, U.S. Department of Justice Office of Immigration, Andrew I. Warden, Carolyn Gail Mark, David Hugh White, James J. Gilligan, James J. Schwartz, John P. Lohrer, John Edward Wallace, Joseph Charles Folio, III, Kathryn Celia Davis, Keith Simmons, Kristina Ann Wolfe, Mary Elizabeth Carney, Norman Christopher Hardee, Olivia R. Hussey Scott, Paul A. Dean, Rachelle C. Williams, Robert J. Prince, Ronald James Wiltsie, Sarah Maloney, Sean W. O'Donnell, Jr., Stephen McCoy Elliott, Terry Marcus Henry, Timothy Allen Bass, Julia A. Berman, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge

Petitioner Abdul Razak Ali ("Ali" or "petitioner") challenges his continued detention at the United States Naval Station at Guantanamo Bay, Cuba, where he has been held since June 2002. Although this Court, Ali v. Obama , 741 F.Supp.2d 19 (D.D.C. 2011), and our Court of Appeals, Ali v. Obama , 736 F.3d 542 (D.C. Cir. 2013), previously determined that Ali could lawfully be detained as an enemy combatant under the Authorization for Use of Military Force ("AUMF"), Pub. L. No. 107–40 § 2(a), 115 Stat. 224 (2002), Ali now argues that the amount of time that has passed since his apprehension renders his continued detention unlawful under the AUMF and the due process clause of the Fifth Amendment to the U.S. Constitution, U.S. Const. amend. V.

Currently before the Court is Ali's Corrected Motion for Order Granting Writ of Habeas Corpus [Dkt. # 1529] ("Corrected Mot."). Upon consideration of the pleadings, the law, the record, and for the reasons stated below, I find that Ali's detention remains lawful, and DENY his Corrected Motion for Order Granting Writ of Habeas Corpus [Dkt. # 1529].

BACKGROUND

Petitioner Abdul Razak Ali is an Algerian national. See Ali , 741 F.Supp.2d at 21. In March 2002, he was captured by Pakistani forces in a four-bedroom house in Faisalabad, Pakistan along with a well-known al Qaeda facilitator, Abu Zubaydah. Id. Indeed, Abu Zubaydah was at that very time assembling a force to attack U.S. and Allied forces. Id. Captured along with petitioner and Abu Zubaydah were a bevy of Abu Zubaydah's senior leadership, including instructors in engineering, small arms, English language (with an American accent), and various electrical circuitry specialists. See id. Also found at the guesthouse were pro-al Qaeda literature, electrical components, and at least one device typically used to assemble remote bombing devices (i.e. , improvised explosive devices or "IEDs"). See id. Following his capture, and before his transfer to Guantanamo, Ali was transported to Bagram Air Force Base for questioning. See id. Since June 2002, he has been held at the U.S. Naval Base at Guantanámo Bay.

Ali filed his first petition for writ of habeas corpus in this Court on December 21, 2005. See Pet. for a Writ of Habeas Corpus, Ali v. Bush , Civ. No. 5-2386 (D.D.C. Dec. 21, 2005) [Dkt. # 1]. The case was initially assigned to Judge Walton. As with the hundreds of other habeas petitions filed around the same time, Ali's case was stayed pending the U.S. Supreme Court decision in Boumediene v. Bush , 553 U.S. 723, 771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (holding that Guantanamo detainees are "entitled to the privilege of habeas corpus to challenge the legality of their detention").

Following the Boumediene decision, for reasons of judicial economy, Judge Walton transferred this case to then-Chief Judge Royce Lamberth. Order, Ali v. Obama , Civ. No. 5-2386 (D.D.C. Apr. 21, 2009) [Dkt. # 1153]. On June 6, 2010, while the discovery process was pending, and after denying Petitioner's Motion to Expedite, Judge Lamberth recused himself on Petitioner's Motion. Order, Ali v. Obama , Civ. No. 5-2386 (D.D.C. June 6, 2010) [Dkt. # 1418]. On June 16, 2010, Ali's case was randomly reassigned to this Court. See Reassignment of Civil Case, Ali v. Obama , Civ. No. 9-745 (D.D.C. June 16, 2010) [Dkt. # 1419].

On August 25, 2010, I issued a Case Management Order ("CMO"). See Case Management Order, Ali v. Obama , Civ. No. 10-1020 (D.D.C. Aug. 25, 2010) [Dkt. # 1423]. This order was virtually identical to those issued in the eight habeas petitions that had been previously litigated before this Court. See Ali , 741 F.Supp.2d at 22. The CMO placed the burden of proof on the Government, set the standard of proof as preponderance of the evidence, provided discovery rights for detainees (including a right to "exculpatory" materials), formulated the procedural processes that would guide the hearings in Court, and set forth the definition of "enemy combatant."

Id. at 24 n.2.¹ These procedures had already been blessed by our Court of Appeals. See Al-Bihani v. Obama , 590 F.3d 866, 869–70, 875–881 (D.C. Cir. 2010).

In December 2010, I conducted three days of hearings on the merits of Ali's petition. Unfortunately for Mr. Ali, following those hearings, I concluded that he was being lawfully detained as an "enemy combatant." Ali , 741 F.Supp.2d at 27. I based this determination on (i) the undisputed fact that Ali was captured at a guesthouse in Faisalabad, Pakistan, with a well-known al Qaeda facilitator, Abu Zubaydah;² (ii) credible testimony from other individuals at the guesthouse that Ali participated in Abu Zubaydah's "training programs" while in their company at the guesthouse; and (iii) credible evidence placing Ali in various locations in Afghanistan with Abu Zubaydah and his band of followers. See id. at 25–27. Our Circuit affirmed my decision on December 3, 2013. See Ali , 736 F.3d at 543. And at oral argument in this case, Ali's counsel confirmed that the present habeas petition does not challenge my earlier ruling as to the legality of Ali's apprehension and detention. See 3/23/18 Hr'g Tr. 4:25-5:5 [Dkt. # 1535].

PETITIONER'S CURRENT STATUS

In January 2009, President Obama established the Guantanamo Bay Review Task Force. See Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009). The Task Force was charged with evaluating whether each detainee's "continued detention is in the national security and foreign policy interests of the United States." Id. § 2(d), 74 Fed. Reg. 4897–99. The Task Force reviewed the status of each Guantanamo detainee, and made a recommendation whether to (i) transfer the detainee, (ii) continue his detention, or (iii) prosecute him. Final Report: Guantanamo Rev. Task Force at 1 (Jan. 22, 2010) ("GTMO Task Force Report"), https://www.justice.gov/sites/default/files/ag/legacy/2010/06/02/guantanamo-review-final-report.pdf.

A separate Executive Order requires periodic status reviews of detainees, like Ali. whom the Task Force decided to continue to detain. See Exec. Order 13,567, 76 Fed. Reg. 13,277 (Mar. 7, 2011) ; see also Exec. Order 13,823, 83 Fed. Reg. 4831, 4831–32 (Jan. 30. 2018) (continuing these procedures for periodic reviews). The Periodic Review Board ("PRB" or "Board") conducts these reviews. This process assesses whether continued custody of a detainee is necessary to protect against a significant threat to the security of the United States. Exec. Order 13,567, § 2. It is not intended as an assessment of the legality of continued detention. Id. § 8.

After the initial PRB review, each detainee is eligible for a "full" review every three years. Id. § 3(b). In addition, each detainee is eligible for a "file review" every six months. Id. § 3(c). If the file review reveals that a "significant question" has arisen concerning the detainee's continued detention, then a full PRB review is promptly convened. Id.

In its February 16, 2018 submission, the Government represented that Ali had his initial Periodic Review Board hearing on July 6, 2016. See Respondents' Opposition to Petitioners' Mot. for Order Granting Writ of Habeas Corpus, Ali v. Trump , Civ. No. 10-1020, at 7 (Feb. 16, 2018) [Dkt. # 1525] ("Opp'n"). The PRB designated Ali For continued detention. Id. Ali's PRB file was reviewed on February 3, 2017 and again on September 1, 2017. Id. As of February 14, 2018, Ali has a third PRB file review ongoing. Id.

Notwithstanding his pending PRB review, Ali and ten other detainees jointly filed a Motion for Petition for Habeas Corpus on January 11, 2018. Mot. for Order Granting Writ of Habeas Corpus, Civ. No. 10-1020 [Dkt. # 1512]. An identical motion was filed in all nine separate cases.³ On January 22, 2018, I set a briefing schedule, ordering that the Government file its Opposition by Friday, February 16, 2018, and that Petitioner file his Reply by Friday, March 9, 2018.⁴ Following the March 5, 2018 status conference, Ali filed a Corrected Motion for Order Granting Writ of Habeas Corpus in the case at bar in order to address a clerical error in the case caption. [Dkt. # 1529]. The briefing is complete and the motion is ripe for review.

LEGAL STANDARD

The Government bears the burden of proving by a preponderance of the evidence that Ali is lawfully detained. If the Government fails to meet that burden, the Court must grant the petition and order Ali's release. This is the standard that governed the Court's review of Ali's original habeas petition. See Case Management Order, Ali v. Obama , Civ. No. 10-1020, at 3 (D.D.C. Aug. 25, 2010) [Dkt. # 1423] ("The Government must establish, by a preponderance of the evidence, the lawfulness of the petitioner's detention. The Government bears the ultimate burden of persuasion that the petitioner's detention is lawful."). Our Circuit has repeatedly affirmed that...