Al-Alwi v. Trump

• Decision Date: 21 February 2017
• Docket Number: Civil Action No. 15–0681 (RJL)
• Parties: Moath Hamza Ahmed AL–ALWI, Petitioner, v. Donald J . TRUMP, et. al., Respondents.
• Court: U.S. District Court — District of Columbia

236 F.Supp.3d 417

Moath Hamza Ahmed AL–ALWI, Petitioner,

v.Donald J . TRUMP,¹ et. al., Respondents.

Civil Action No. 15–0681 (RJL)

United States District Court, District of Columbia.

Signed February 21, 2017

Filed February 22, 2017

John J. Connolly, Zuckerman Spaeder, Llp, Baltimore, MD, Ramzi Kassem, City University of New York School of Law, New York, NY, for Petitioner.

Andrew I. Warden, Kristina Ann Wolfe, Terry Marcus Henry, U.S. Department of Justice, Washington, DC, for Respondent.

MEMORANDUM OPINION

[Dkts. ## 1, 15]

RICHARD J. LEON, United States District Judge

Petitioner Moath Hamza Ahmed Al–Alwi ("Al–Alwi" or "petitioner") challenges his continued detention at the United States Naval Station at Guantanámo Bay, Cuba, where he has been held since January 2002. Although this Court, Al–Alwi v. Bush , 593 F.Supp.2d 24, 28 (D.D.C. 2008), and our Court of Appeals, Al–Alwi v. Obama , 653 F.3d 11, 17 (D.C. Cir. 2011), previously determined that Al–Alwi could lawfully be detained as an enemy combatant under the Authorization for the Use of Military Force ("AUMF"), Pub. L. No. 107–40 § 2(a), 115 Stat. 224 (2002), Al–Alwi now argues that the relevant conflict in Afghanistan that justified his detention has now ended, thereby extinguishing the United States' authority to detain him any longer.

Currently before the Court is Al–Alwi's Petition for Writ of Habeas Corpus [Dkt. # 1] and respondents' Response to Petition for Writ of Habeas Corpus and Motion to Dismiss or for Judgment [Dkt. # 15]. Upon consideration of the pleadings, the law, and the record, and for the reasons stated below, I find that Al–Alwi's detention remains lawful, DENY his petition for writ of habeas corpus, and GRANT respondents' Motion to Dismiss.

BACKGROUND

Moath Hamza Ahmed Al–Alwi is a Yemeni citizen who was captured in Pakistan in late 2001 and ultimately delivered to United States custody. He has been detained at Guantanámo Bay since January 2002. Pet. for Writ of Habeas Corpus, ¶¶ 14–16 [Dkt. # 1]; Government's Resp. to Pet. at 4 [Dkt. # 15]. In 2005, Al–Alwi filed a petition for writ of habeas corpus, challenging the legality of his detention. Pet. for Writ of Habeas Corpus, Al–Alwi v. Bush , No. 05–cv–2223 [Dkt. # 1]. After the Supreme Court held in Boumediene v. Bush , 553 U.S. 723, 732, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), that Guantanámo detainees are entitled to challenge the legality of their detention through habeas corpus, I held an evidentiary hearing to assess his habeas claim. In December 2008, I denied his petition, finding that the government had established by a preponderance of the evidence that (1) he stayed at guesthouses in Afghanistan and Pakistan that were associated with the Taliban (and, in at least one instance, al Qaeda); (2) he voluntarily surrendered his passport at a guesthouse closely associated with al Qaeda; (3) he received military training at a Taliban-related camp and travelled to two separate fronts to support Taliban fighting forces; and (4) he remained with his Taliban unit after September 11, 2001 and several United States bombing runs in Afghanistan. Al–Alwi v. Bush , 593 F.Supp.2d 24, 28 (D.D.C. 2008). Based on those findings, I determined that it was "more probable than not that he was ‘part of or supporting Taliban or al Qaeda forces' both prior to and after the initiation of U.S. hostilities" and thus could be lawfully detained under the AUMF. Id. at 29. In 2011, our Circuit Court held that Al–Alwi was "part of" al Qaeda or Taliban forces and affirmed his detention. Al–Alwi v. Obama , 653 F.3d 11, 17 (D.C. Cir. 2011).

Al–Alwi filed his second and current petition for a writ of habeas corpus in May 2015. Pet. for Writ of Habeas Corpus, [Dkt. #1]. In his petition, Al–Alwi does not challenge the Court's prior determination that he is an enemy combatant. Id. ¶ 21. Instead, he alleges that the relevant conflict in Afghanistan that originally justified his detention has concluded and his detention is no longer authorized by the AUMF (and violates the Geneva Convention and the Convention Against Torture). Id. ¶¶ 35–47. In the alternative, Al–Alwi argues that his detention has gone on for so long that it can no longer be reconciled with traditional law of war principles, and he must therefore be released whether or not the conflict is still ongoing. Pet'r's Opp'n to Resp'ts' Mot. to Dismiss at 28 [Dkt. # 16]. For the following reasons, I disagree as to both positions.

STANDARD OF REVIEW

The government bears the burden of proving by a preponderance of the evidence that Al–Alwi is lawfully detained. If the government fails to meet that burden, the Court must grant the petition and order Al–Alwi's release. This is the standard that governed the Court's review of Al–Alwi's original habeas petition. See Case Management Order, Al–Alwi v. Bush , 05–cv–2223, at 3 (Oct. 31, 2008) [Dkt. # 76] ("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."). Our Circuit has repeatedly affirmed that a preponderance standard is constitutionally appropriate when reviewing Guantanamo detainee habeas petitions. See Al Odah v. United States , 611 F.3d 8, 13 (D.C. Cir. 2010) ("It is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF."); Awad v. Obama , 608 F.3d 1, 10 (D.C. Cir. 2010) ("[A] preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantanámo Bay, Cuba.").

ANALYSIS

Shortly after the September 11, 2001 terrorist attacks, Congress passed the Authorization of the Use of Military Force ("AUMF"), which states

[T]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Pub. L. 107–40, § 2(a), 115 Stat. 224 (Sept. 18, 2001). The AUMF gives the President authority to detain enemy combatants—i.e., individuals who were "part of" or provided support to al Qaeda and Taliban forces in Afghanistan. Al–Bihani v. Obama , 590 F.3d 866, 872 (D.C. Cir. 2010) ("[An individual] is lawfully detained [under the AUMF if he] is ... ‘an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners' "). This Court has already determined that Al–Alwi is an enemy combatant who can be lawfully detained under the AUMF. Al–Alwi v. Bush , 593 F.Supp.2d 24, 29 (D.D.C. 2008), aff'd, Al–Alwi v. Obama , 653 F.3d 11 (D.C. Cir. 2011). As a result, the issue presented by this petition is not whether the government had the initial authority to detain him, but whether that authority has lapsed in the fifteen years since.

In 2004, a plurality of the Supreme Court observed in Hamdi v. Rumsfeld that it was a "clearly established principle of the law of war that detention may last no longer than active hostilities." 542 U.S. 507, 520–21, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion) (citing Geneva Convention (III) Relative to the Treatment of Prisoners art. 118, Aug. 12, 1949, [1955] 6 U.S.T. 3316, 3406, T.I.A.S. No. 3364 ). Informed by the principles of the law of war, the Court held that the AUMF's grant of authority to use "necessary and appropriate force" included within it the "authority to detain [combatants] for the duration of the relevant conflict." Id. at 521, 124 S.Ct. 2633. In the National Defense Authorization Act of 2012 ("NDAA"), Congress explicitly clarified that the AUMF gives the President authority to detain combatants "under the law of war without trial until the end of hostilities ...." NDAA, Pub. L. No. 112–81, §§ 1021(c), (b)(2), 125 Stat. 1298, 1562 (2012). See also Aamer v. Obama , 742 F.3d 1023, 1041 (D.C. Cir. 2014) ("[U]nder the [AUMF] ... individuals may be detained at Guantanámo so long as they are determined to have been part of al Qaeda, the Taliban, or associated forces, and so long as hostilities are ongoing." (citation omitted)). Thus, the Court must determine whether "active hostilities" have ceased, such that Al–Alwi's detention is no longer permitted.

Al–Alwi argues that the Court must undertake its own wide-ranging evidentiary review of the facts on the ground in Afghanistan and determine for itself whether and when active hostilities ended. Pet'r's Opp'n to Resp'ts' Mot. to Dismiss at 12–15 [Dkt. #16]. But controlling authority in this Circuit requires a much more circumscribed inquiry than that. In Al–Bihani v. Obama , our Circuit Court rejected a Guantanámo detainee's argument that the United States' war against the Taliban had ended and that he must therefore be released. 590 F.3d 866, 874 (D.C. Cir. 2010). The Court noted that release was required upon the cessation of active hostilities, but held that the "determination of when hostilities have ceased is a political decision, and we defer to the Executive's opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war." Id. at 874.

Al–Bihani was rooted in a long line of Supreme Court authority recognizing that the courts lack the institutional ability to decide when active hostilities conclude and should afford the political branches substantial deference in the national security arena. See, e.g., Ludecke v. Watkins , 335 U.S. 160, 170, 68 S.Ct. 1429, 92 L.Ed. 1881 (1948) (holding that determining when active hostilities conclude is a "matter[ ] of political judgment for which judges have neither technical competence nor...