Al Ginco v. Obama
| Decision Date | 22 June 2009 |
| Docket Number | Civil Case No. 05-1310 (RJL). |
| Citation | 626 F.Supp.2d 123 |
| Parties | Abdulrahim Abdul Razak AL GINCO, Petitioner, v. Barack H. OBAMA, et al.,<SMALL><SUP>1</SUP></SMALL> Respondents. |
| Court | U.S. District Court — District of Columbia |
Stephen R. Sady, Chief Deputy Public Defender, Federal Public Defender for the District of Oregon, Portland, OR, Steven T. Wax, Office of the Federal Public Defender, Portland, OR, for Petitioner.
Judry Laeb Subar, Peter James McVeigh, Scott Michael Marconda, Terry Marcus Henry, Andrew I. Warden, August Edward Flentje, Edward Martin, Edward H. White, James C. Luh, Preeya M. Noronha, Scott Douglas Levin, Timothy Burke Walthall, United States Dept. of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Respondents.
Petitioner Abdulrahim Abdul Razak Al Ginco (who now prefers the surname Janko) ("petitioner" or "Janko") is a detainee being held at the U.S. Naval Base at Guantanamo Bay, Cuba. He alleges that he is being unlawfully detained by Respondents President Barack H. Obama, Secretary of Defense Robert M. Gates, Rear Admiral David M. Thomas, Jr., and Army Colonel Bruce Vargo (collectively, "respondents" or the "Government"). On May 28, 2009, this Court commenced habeas corpus proceedings for petitioner Janko. That morning, counsel for both parties made unclassified opening statements in a public hearing. Petitioner Janko listened to a live translation of these opening statements via a telephone transmission to Guantanamo Bay, Cuba.
Thereafter, the Court went into a closed-door session to hear each side present an opening statement that included relevant classified information. Upon completion of those statements, each side presented its evidence, most of which included classified material, and arguments regarding various material issues of fact in dispute by the parties. Because those presentations were not completed by the early evening of May 28, 2009, the Court reconvened the following day to hear final arguments from both sides. In the interim, petitioner Janko decided not to testify on his own behalf. After the Court heard each side's closing arguments, the Court informed the parties that it would hold a public hearing in the near future to announce its decision. A classified version of this opinion setting forth in greater detail the factual basis of the Court's ruling will be distributed in the near future through the Court Security Office, together with the final judgment.
Before stating the Court's ruling, a brief statement of the relevant factual and procedural background of this case is appropriate.
Petitioner Janko, a Syrian citizen who spent his teen years in the United Arab Emirates, was taken into custody by U.S. forces in January 2002 in Kandahar, Afghanistan. (Unclassified Return ¶¶ 1-2, 19 [Dkt. # 117]; Unclassified Traverse at 81-82, 92 [Dkt. # 151].) Initially he was held and questioned at Kandahar Air Base, until he was ultimately taken to Guantanamo Bay, Cuba, after approximately 100 days. (Unclassified Return ¶ 42, n. 12; Unclassified Traverse at 2.)
In the aftermath of the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466, 473, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (), petitioner Janko filed his habeas corpus petition with this Court on June 30, 2005. As with hundreds of other petitions filed around that time, no action was taken by this Court on the petition until the Supreme Court ruled on June 12, 2008 in Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), that Guantanamo detainees are "entitled to the privilege of habeas corpus to challenge the legality of their detention." Id. at 2262.
In the month following the Boumediene decision, I met with counsel in petitioner Janko's case on a number of occasions to discuss issues unique to his case and procedural issues attendant to the habeas process. On July 30, 2008, I ordered respondents to file their Factual Return by October 24, 2008. (Briefing and Scheduling Order, July 30, 2008 [Dkt. # 84].) On September 9, 2008, the Government sought a thirty-day extension for the production of the Janko Factual Return. (Mot. for Partial Relief, Sept. 9, 2008 [Dkt. # 102].) The Government's motion was granted on September 23, 2008, and respondents were ordered to file their Factual Return by November 21, 2008, (Order, Sept. 23, 2008 [Dkt. #104]), which they did.
On November 28, 2008, the Court issued its Case Management Order ("CMO") for the case. (Case Management Order, Nov. 28, 2008 [Dkt. # 111].) That order was essentially a duplicate of the earlier CMO I had issued on August 27, 2008 in the Boumediene v. Bush case, No. 04-cv-1166.
On December 4, 2008, the Court met with counsel to discuss any issues raised after reviewing respondents' Factual Return. On December 5, 2008, the Government filed an unclassified version of the Factual Return. (Notice of Filing of Unclassified Factual Return, Dec. 5, 2008 [Dkt. # 117].) Between October 22, 2008 and April 3, 2009, petitioner's counsel filed a series of motions seeking, or related to, discovery. Four hearings were held to address those motions between December 10, 2008 and April 1, 2009.
On December 22, 2008, a possible conflict of interest issue arose as to petitioner's counsel's continued representation of Janko. As a result, the schedule in the case was indefinitely continued until that issue was resolved. Ultimately it was resolved on February 27, 2009, and the Court ordered petitioner's counsel to file petitioner's Initial Traverse by March 16, 2009. (Order, Feb. 27, 2009 [Dkt. # 127].) Petitioner's counsel complied. Indeed, petitioner's counsel subsequently sought to supplement petitioner's Traverse on three occasions, and the Court granted each request. The Government also sought leave to supplement its Factual Return on May 18, 2009, which the Court permitted. On May 26, 2009, a prehearing conference was held with counsel in an effort to narrow the factual issues to be covered at the merits hearing.
Based on a careful review of the Factual Return and Traverse and after a day and a half of hearings on the factual issues in dispute and the arguments of counsel, the following is the Court's ruling on Janko's petition.
Under the CMO, the Government bears the burden of proving the lawfulness of the petitioner's detention by a preponderance of the evidence. (CMO ¶ II.A.) The Government contends that petitioner Janko is being lawfully detained pursuant to the Authorization for Use of Military Force ("AUMF").2 In specific, the Government initially argued that petitioner Janko was being lawfully detained because he is an "enemy combatant" who can be held pursuant to the AUMF. (Notice of Filing of Statement of the Legal Bases for Petitioner's Lawful Detention as an Enemy Combatant, Dec. 9, 2008 [Dkt. # 118].) In that regard, the following definition of "enemy combatant" was previously adopted by this Court in the Boumediene cases to delineate those who could be lawfully detained:
An "enemy combatant" 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 includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Boumediene v. Bush, 583 F.Supp.2d 133, 133 (D.D.C.2008). In the aftermath of the change in administrations in January 2009, however, the Government, for reasons not known to this Court, now eschews the use of the phrase "enemy combatant" and simply argues instead that petitioner Janko is the type of individual that is detainable under the AUMF. (Notice of Refinement of Position with Regard to Authority to Detain, May 4, 2009 [Dkt. # 143].) In fact, they go so far as to advocate that the Court adopt an even higher standard regarding the "supporting Taliban or al Qaeda forces" portion of this Court's definition of enemy combatant, by requiring a showing of "substantial support" to the Taliban or al Qaeda. (Id. at 1-2.)
Fortunately, however, the Court need not decide whether to adopt the Government's new definition in this case. The Government's theory of lawful detention here is not based on "support" to either the Taliban or al Qaeda, but rather petitioner's being "part of the Taliban or al Qaeda when he was taken into custody. (Unclassified Oral Arg. Tr. 31, May 28, 2009.) Accordingly, the question before this Court is simply whether the Government has shown by a preponderance of the evidence that petitioner Janko is being lawfully detained—i.e., is an enemy combatant— because he was "part of the Taliban or al Qaeda at the time he was taken into custody by U.S. forces. Because the Government's evidence principally consists of classified intelligence reports from various government law enforcement and intelligence services, the Court is limited to the following discussion of unclassified information relied upon in the Government's case.
The Government contends, in essence, that petitioner Janko is an enemy combatant because he was "part of ... Taliban or al Qaeda forces" at the time he was taken into custody by U.S. forces in 2002. In particular, the Government argues that petitioner Janko: (1) traveled to Afghanistan to participate in jihad on behalf of the Taliban; (2) stayed for several days at a guesthouse used by Taliban and al Qaeda fighters and operatives in early 2000, where he helped clean some weapons; and (3) thereafter attended the al Farouq training camp for a brief period of time. (Unclassified Return ¶¶ 27-30, 32-40; Unclassified Oral Arg. Tr. 21-27.) The Government effectively concedes, however, that petitioner Janko was not only imprisoned, but...
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