Al-Alwi v. Trump

• Citation: 901 F.3d 294
• Decision Date: 07 August 2018
• Docket Number: No. 17-5067,17-5067
• Parties: Moath Hamza Ahmed AL-ALWI, Appellant v. Donald J. TRUMP, President, et al., Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

901 F.3d 294

Moath Hamza Ahmed AL-ALWI, Appellant

v.Donald J. TRUMP, President, et al., Appellees

No. 17-5067

United States Court of Appeals, District of Columbia Circuit.

Argued March 20, 2018

Decided August 7, 2018

Ramzi Kassem, New Haven, CT, argued the cause for the appellant. John J. Connolly, Brooklyn, NY, and Beth D. Jacob, were with him on the briefs.

Jennifer R. Cowan, Atlanta, GA, was on brief for the amicus curiae Experts on International Law and Foreign Relations Law in support of initial hearing En Banc.

Sonia M. Carson, Attorney, United States Department of Justice, argued the cause for the appellees. Douglas N. Letter, Matthew M. Collette and Sonia K. McNeil, Attorneys, were on brief. Sharon Swingle, Attorney, Washington, DC, entered an appearance.

Before: Garland, Chief Judge, and Henderson and Griffith, Circuit Judges.

Opinion for the Court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge:

Moath Hamza Ahmed Al-Alwi, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, petitioned for a writ of habeas corpus. The district court denied the petition. On appeal, Al-Alwi argues that the conflict resulting in his detention is so unprecedented that the United States’ authority to detain him has unraveled. He also argues in the alternative that the conflict has ended, thereby terminating the United States’ authority to detain him. Finally, he advances due process claims and a request for further fact-finding. For the following reasons, we affirm the judgment of the district court denying Al-Alwi’s petition.

I. Background

Shortly after the terrorist attacks of September 11, 2001, the Congress authorized the President 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001) (AUMF).

Ten years later, the Congress "affirm[ed] that the authority of the President to use all necessary and appropriate force pursuant to" the AUMF "includes the authority" to "detain" persons who "w[ere] a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States." National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1021(a), (b)(2), 125 Stat. 1298, 1562 (Dec. 31, 2011). The Congress granted authority to detain such persons "under the law of war without trial until the end of the hostilities authorized by the" AUMF. Id. § 1021(c)(1).

Al-Alwi is a Yemeni citizen who grew up in Saudi Arabia. According to the Government and uncontested in this appeal, Al-Alwi stayed in Taliban guesthouses, traveled to a Taliban-linked training camp to learn how to fire rifles and grenade launchers and joined a combat unit led by an al Qaeda official that fought alongside the Taliban. Al Alwi v. Obama ( Al Alwi I ), 653 F.3d 11, 13–14 (D.C. Cir. 2011) ; see id. at 20 (noting that Al-Alwi "did not deny" that "majority of the principal facts" Government asserted "were true" (internal quotation omitted) ). Al-Alwi was captured in December 2001 and turned over to United States authorities, who detained him at Guantanamo Bay pursuant to the AUMF. Al-Alwi remains at Guantanamo Bay today.

In 2005, Al-Alwi petitioned for a writ of habeas corpus. The district court denied the petition after concluding that the Government’s account of Al-Alwi’s Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained. Al Alwi v. Bush , 593 F.Supp.2d 24, 27–29 (D.D.C. 2008). This Court affirmed. Al Alwi I , 653 F.3d at 15–20.

In 2009, the President established an intra-branch process to "review ... the factual and legal bases for the continued detention of all individuals" held at Guantanamo Bay. Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities, Exec. Order No. 13,492 § 2(d), 74 Fed. Reg. 4,897, 4,898 (Jan. 22, 2009). As part of the ongoing process, a Periodic Review Board comprised of senior Executive Branch officials must "periodic[ally] review" detentions at Guantanamo Bay to "ensure" that continued military detentions are "justified." Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (Mar. 7, 2011). In October 2015, the Periodic Review Board determined that continued detention of Al-Alwi "remain[ed] necessary to protect against a continuing significant threat to the security of the United States." Joint Appendix (JA) 641.

In 2015, Al-Alwi filed a second petition for a writ of habeas corpus, which is the subject of this appeal. Al-Alwi did not challenge the district court’s earlier determination that he remains an enemy combatant. Instead, Al-Alwi alleged that the conflict in Afghanistan that resulted in his detention had ended and therefore the United States "no longer [had] any lawful basis" to detain him. JA 11.

The district court denied the petition. Al-Alwi v. Trump , 236 F.Supp.3d 417 (D.D.C. 2017). This appeal followed.

II. Analysis

On appeal from denial of a habeas petition, we review the "district court’s findings of fact for clear error, its habeas determination de novo , and any challenged evidentiary rulings for abuse of discretion." Barhoumi v. Obama , 609 F.3d 416, 423 (D.C. Cir. 2010). As stated earlier, the Government’s initial authority to detain Al-Alwi as an enemy combatant after his capture has been asked and answered in the affirmative, Al Alwi I , 653 F.3d 11, and remains unaffected by this petition and appeal. Instead, Al-Alwi’s petition advances two arguments to support his claim that the Government’s established detention authority has expired. First, Al-Alwi argues that the United States’ authority to detain him has "unraveled" because the conflict in which he participated is a new species of conflict uninformed by the previous law of war. Second, and alternatively, Al-Alwi argues that the conflict has ended. On a separate and final note, Al-Alwi asserts on appeal due process violations and a need for further discovery in district court. We reject all of Al-Alwi’s arguments.

A. Authority to detain has not unraveled

The Congress’s "grant of authority" in the AUMF "for the use of ‘necessary and appropriate force,’ " the United States Supreme Court has held, authorizes detention of enemy combatants "for the duration of the particular conflict in which they were captured." Hamdi v. Rumsfeld , 542 U.S. 507, 518, 521, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion) (quoting AUMF); accord id. at 579, 124 S.Ct. 2633 (Thomas, J., dissenting) ("The Executive Branch ... has determined that [petitioner] is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail...."); see Uthman v. Obama , 637 F.3d 400, 402 (D.C. Cir. 2011) ("The AUMF ... authorizes the Executive Branch to detain" enemy combatants "for the duration of hostilities."). And the 2012 National Defense Authorization Act permits "[d]etention under the law of war ... until the end of the hostilities authorized by the" AUMF. Pub. L. No. 112-81, § 1021(c)(1). Neither of these enactments places limits on the length of detention in an ongoing conflict. Our baseline, then, is that the AUMF remains in force if hostilities between the United States and the Taliban and al Qaeda continue. See Ali v. Obama , 736 F.3d 542, 552 (D.C. Cir. 2013) ("[T]he 2001 AUMF does not have a time limit, and the Constitution allows detention of enemy combatants for the duration of hostilities."). Such hostilities continue, as discussed in more detail infra . See, e.g. , Redacted Declaration of Rear Admiral Andrew L. Lewis ¶¶ 11–12 (Feb. 1, 2016), JA 754–55 ("Fighting [between the Taliban and U.S. forces] has been nearly continuous since February 2015.... From January 2015 to [February 2016], there have been numerous, specific instances of hostile forces, including the Taliban and al-Qaeda, attacking or planning to attack U.S. personnel and facilities in Afghanistan."); United States Air Forces Central Command, 2010–2015 Airpower Statistics (Oct. 31, 2015), JA 579 (indicating United States released 847 weapons during 2015).

Nevertheless, Al-Alwi maintains that traditional law-of-war principles, which the Hamdi plurality said grounded its "understanding" of the AUMF’s detention authority, 542 U.S. at 521, 124 S.Ct. 2633, do not apply to the conflict here because of the conflict’s duration, geographic scope and variety of parties involved. The "unprecedented" circumstances of the Afghanistan-based conflict, Al-Alwi argues, "ha[ve] eroded the United States’ detention authority under the AUMF." Appellant’s Br. 17. But Al-Alwi’s cited authorities, see Appellant’s Br. 16, merely suggest the possibility that the duration of a conflict may affect the Government’s detention authority and, in any event, are not controlling. See Hamdi , 542 U.S. at 521, 124 S.Ct. 2633 (plurality opinion) ("understanding" of detention authority "may unravel" if circumstances of conflict "are entirely unlike those" of previous conflicts (emphasis added) ); Boumediene v. Bush , 553 U.S. 723, 771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (holding that Constitution applies at Guantanamo Bay and noting, in context of rejecting Government argument that such holding would be unprecedented, conflict resulting in Guantanamo Bay detention "is already...