In re Guantanamo Bay Detainee Litigation

• Decision Date: 09 October 2008
• Docket Number: Civil Action No. 08-1310 (RMU).,Civil Action No. 05-2370 (RMU).,Civil Action No. 05-1704 (RMU).,Civil Action No. 05-1602 (RMU).,Civil Action No. 05-2398 (RMU).,Civil Action No. 05-1509 (RMU).,Misc. No. 08-0442 (TFH).
• Citation: In re Guantanamo Bay Detainee Litigation, 581 F.Supp.2d 33 (D. D.C. 2008)
• Parties: In re: GUANTANAMO BAY DETAINEE LITIGATION.
• Court: U.S. District Court — District of Columbia

581 F.Supp.2d 33

In re: GUANTANAMO BAY DETAINEE LITIGATION.

Misc. No. 08-0442 (TFH).

Civil Action No. 05-1509 (RMU).

Civil Action No. 05-1602 (RMU).

Civil Action No. 05-1704 (RMU).

Civil Action No. 05-2370 (RMU).

Civil Action No. 05-2398 (RMU).

Civil Action No. 08-1310 (RMU).

United States District Court, District of Columbia.

October 9, 2008.

Jerry Cohen, Burns & Levinson, LLP, Boston, MA, Sylvia Royce, Washington, DC, for Guantanamo Bay Detainee Litigation.

MEMORANDUM OPINION

GRANTING THE PETITIONERS' MOTIONS FOR JUDGMENT ON THEIR PENDING HABEAS PETITIONS AND DENYING AS MOOT THE PETITIONERS' MOTIONS FOR IMMEDIATE RELEASE ON PAROLE INTO THE UNITED STATES

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

There comes a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with the constitutional imperative. Such a time has come in the case of the 17 Uighurs in Guantanamo Bay, Cuba ("Guantanamo") whom the government has detained for 7 years without an opportunity for judicial redress until recently. In reviewing the evidence leading to the designation of one Uighur petitioner as an enemy combatant, the D.C. Circuit described the evidence supporting that determination as "lack[ing] sufficient indicia of ... reliability." Parhat v. Gates, 532 F.3d 834, 836 (D.C.Cir.2008). Prompted by the Parhat decision, the government decided that it would no longer consider the 17 Uighur detainees enemy combatants. In light of developments and the Supreme Court's recent ruling in Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), restoring the court's jurisdiction over detainee habeas petitions, the detainees filed motions alleging that their continued detention is unlawful and requesting that the court order the government to release them into the United States. Because the Constitution prohibits indefinite detention without just cause, this court rules that the government's continued detention of the petitioners is unlawful. Furthermore, because separation-of-powers concerns do not trump the very principle upon which this nation was founded—the unalienable right to liberty—the court orders the government to release the petitioners into the United States.

II. BACKGROUND

A. Factual Background

The 17 petitioners are Uighurs (a Turkic Muslim minority group) who arrived in Afghanistan after fleeing far-western China where they faced oppression. See Parhat, 532 F.3d at 837. Once in Afghanistan, the petitioners lived together in "Uighur camps." Id. The nature of these camps is hotly contested. The government contends that the camps were run by the East Turkistan Islamic Movement ("ETIM") and supported by the Taliban. Govt's Opp'n at 10. But the government has only produced evidence that one of the Uighurs was "part of or supporting forces" in Afghanistan. Parhat, 532 F.3d at 843 (stating that Parhat's own statements indicate that "he received training on a Kalashnikov rifle and a pistol, which `consisted of weapon disassembly and cleaning'"). The Parhat court did not decide whether the camp was run by ETIM because the government's other evidence was independently insufficient to support the Combatant Status Review Tribunal's ("CSRT") determination that Parhat is an enemy combatant. Id. at 844 (explaining that the government's evidence that ETIM was "associated" with al Qaida or the Taliban and that ETIM engaged in hostilities against the United States or its allies "does not disclose from whence it came [and] is therefore insufficient"). The government concedes that there are no material factual differences among the petitioners and that the holding in Parhat applies to them all equally. Accordingly, this court recognizes that the petitioners acquired weaponry skills at "training camps" in Afghanistan after fleeing China, but will not draw adverse inferences based on other unsubstantiated allegations.

Although it remains unclear how long they remained in these "training camps," once the U.S. military began bombing the area, the petitioners relocated to Pakistan. Id. at 837. Local villagers there handed the petitioners over to Pakistani officials in late 2001. Id.; but see Joint Status Report (Aug. 18, 2008), Ex. 1 (noting that one petitioner was captured in May 2002). These officials then turned the petitioners over to the U.S. military for $5,000 a head. Parhat, 532 F.3d at 837; Uighur Petrs' Notice of Supp. Auth. (Sept. 25, 2008), Ex. E ("Decl. of J. Wells Dixon") at 3. In June 2002, the military transferred the petitioners to Guantanamo Bay. Parhat, 532 F.3d at 837.

B. Procedural History

The 17 Uighur detainees began filing habeas petitions with this court in July 2005. Approximately two years before filing their first petition, the government had already cleared 10 of the petitioners for release. Joint Status Report (Aug. 18, 2008), Ex. 1. The government cleared an additional 5 for release or transfer in 2005, 1 for transfer in 2006 and 1 for transfer in May of this year. Id. To date, all 17 petitioners remain at Guantanamo.

On July 10, 2008, Judge Thomas F. Hogan ordered that all the Uighur petitions be "consolidated for consideration before Judge Urbina." Order (July 10, 2008), 2008 WL 2872179. Over the next few months, the government determined that it would treat all Uighur petitioners "as if they are no longer enemy combatants." Govt's Opp'n at 2; Joint Status Report (Aug. 18, 2008) at 14; Notice of Status (Sept. 30, 2008) at 2. As "no longer enemy combatants," the government provides these detainees "special housing" "while efforts continue to resettle them in a foreign country." Notice of Status (Sept. 30, 2008) at 2.

Because the government no longer treats the detainees as enemy combatants, it will not be filing factual returns in any of their cases. Accordingly, the only issues to be resolved are whether the government has authority to "wind up" the petitioners' detention and whether the court has the authority to order the petitioners released into the United States. Parhat filed motions on July 23 and 25, 2008, requesting that the court release him into the United States pending final judgment of his habeas petition and also as the ultimate relief sought from his petition. The government opposed both motions. At a status hearing on August 21, 2008, the court granted a motion by 4 other petitioners to join the Parhat's pending motions, and on October 1, 2008, the remaining petitioners filed a motion incorporating by reference the arguments articulated in Parhat's motions.

III. ANALYSIS

A. Legality of Detention

1. Enemy Combatant Status

Congress passed the Authorization for Use of Military Force ("AUMF"), authorizing 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.

50 U.S.C. § 1541 note Pub.L. No. 107-40, § 2(a), 115 Stat. 224 (2001). Inclusive in this grant is the authority to detain individuals "who fought against the United States in Afghanistan for the duration of the particular conflict." Boumediene, 128 S.Ct. at 2240-41 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 518, 588-89, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)). The Deputy Secretary of Defense issued an Order on July 7, 2004 setting forth an "enemy combatant" standard to assist military tribunals in deciding whether to detain someone caught in the theater of war. Parhat, 532 F.3d at 837-38 (reciting the military's definition of enemy combatant as "an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners"). Thus far, this standard is the only one recognized by the Supreme Court for legally detaining individuals under the AUMF. Hamdi, 542 U.S. at 517, 124 S.Ct. 2633.

In this case, because the government has already absolved the petitioners of this status, Govt's Opp'n at 5; Joint Status Report (Aug. 18, 2008); Govt's Notice (Sept. 30, 2008), its theory for continued detention is based on an inherent Executive authority to "wind up" detentions in an orderly fashion, Govt's Opp'n at 10. Initially, the petitioners protest that this "wind-up" authority, should it exist, would not apply to them because they were never lawfully detained. Petrs' Reply at 3. But the Supreme Court has made clear that habeas is not available "the moment a prisoner is taken into custody," Boumediene, 128 S.Ct. at 2275, and in any event, the record is too undeveloped as to the circumstances regarding their transfer from Pakistan to United States custody to determine whether they were, at the time of their capture, lawfully detained, see Qassim v. Bush, 407 F.Supp.2d 198, 200 (D.D.C.2005) (expressing displeasure that "[t]he government's use of the Kafkaesque term `no longer enemy combatants' deliberately begs the question of whether these petitioners ever were enemy combatants"). Accordingly, the court assumes, for the sake of this discussion, that the petitioners were lawfully detained and that the Executive does have some inherent authority to "wind up" wartime detentions.

2. "Wind-up" Authority

The parties strongly disagree over how long the Executive may detain individuals pursuant to its "wind-up" authority. The petitioners contend that the government determined long ago that it cannot effect transfer and after 5 years of failed efforts, any "wind-up" authority has been "used up." Petrs' Reply at 3. The government, on the other hand, recites examples of past wars in which the United States has detained prisoners of war for "several years" after the end of hostilities. Govt's Opp'n at 10-12 (noting the thousands of Iraqis...