Lep v. Trump
| Decision Date | 14 December 2020 |
| Docket Number | Civil Action No. 20-3344 (JDB) |
| Parties | MOHAMMED NAZIR BIN LEP, Petitioner, v. DONALD J. TRUMP et al., Respondents. |
| Court | U.S. District Court — District of Columbia |
Petitioner Mohammed Nazir Bin Lep is a detainee at the Guantanamo Bay Naval Station in Guantanamo Bay, Cuba. Bin Lep has been held in U.S. custody for seventeen years pursuant to the 2001 Authorization for Use of Military Force ("AUMF"), which permits the U.S. to detain persons who were part of or substantially supported al-Qaida, the Taliban, or associated forces. See Pub. L. No. 107-40, 115 Stat. 224 (2001). The Guantanamo Review Task Force identified Bin Lep as a target for prosecution in January 2010. Two sets of draft charges have since been sworn against him, but no formal charges have yet been brought. Bin Lep now seeks a court order enjoining the government from "taking any further steps to unlawfully try him by military commission" because he contends that the delays in prosecuting his case and bringing him to trial, as well as the disparate treatment of non-citizens by the commission system, have rendered any future prosecution unlawful. See Pet'r's Mot. for a Prelim. Inj. ("Pet'r's Mot.") [ECF No. 41] at 1. At the same time, he has filed a habeas petition seeking his immediate release. See Pet. for a Writ of Habeas Corpus ("Habeas Pet.") [ECF No. 40]. For the reasons explained below, the Court will deny Bin Lep's motion for a preliminary injunction at this time.
Bin Lep is a citizen of Malaysia who has been detained by the United States at Guantanamo as an "enemy combatant" pursuant to the AUMF for his alleged participation in various al-Qaida operations against the United States. Habeas Pet. ¶¶ 1, 8. Bin Lep was captured by local authorities in 2003 and placed in the custody of the Central Intelligence Agency ("CIA") shortly thereafter. Redacted Decl. of Mark S. Martins ("Martins Decl.") [ECF No. 51-1] ¶ 4. He has been held at Guantanamo since 2006. Id. In 2009, President Obama ordered an interagency task force to evaluate the status of each Guantanamo detainee to determine if transfer, prosecution, or continued detention was appropriate. See Exec. Order No. 13,493, 74 Fed. Reg. 4901 (Jan. 27, 2009). That task force recommended Bin Lep for prosecution in January 2010. See Guantanamo Review Dispositions, Letter from U.S. Dep't of Justice (June 17, 2013) Enclosure at 4, https://perma.cc/23H5-5ZXP (referring to petitioner as Bashir bin Lap).
The Military Commissions Act of 2009 ("MCA") authorizes the President to establish military commissions to try alien unprivileged enemy combatants for war crimes or other offenses triable by military commissions. 10 U.S.C. § 948b(a)-(b). Before a military commission proceeding begins, charges against the accused must be sworn by a member of the armed forces having knowledge or reason to believe the matters alleged are true. Id. § 948q. Then, the Secretary of Defense or his designee—here, the Convening Authority—considers the sworn charges and supporting evidence and decides whether to dismiss or modify the charges, forward them to another authority for disposition, or refer the charges to a military commission. Rules for Military Commissions ("R.M.C.") 401, 406, 601. Finally, a military commission must be convened. Id. at 504, 601. All of these elements are required for a "referral" of charges, which is "the order of a convening authority that charges against an accused will be tried by a specified militarycommission." Id. at 601(a), 601(a) Discussion.
"Service of charges" on the accused and his counsel is required "as soon as practicable" after referral. See Regulation for Trial by Military Commission § 4-4(2011), https://www.mc.mil/Portals/0/2011%20Regulation.pdf. The service of charges also entitles the accused to specific disclosures and other discovery-related privileges. See R.M.C. 701. And once charges are served, the accused must be arraigned within thirty days, a military commission must be assembled within 120 days, and an appropriate schedule for discovery must be set "as soon as practicable." Id. at 707(a). However, neither the MCA nor the Rules for Military Commissions impose a specific deadline by which the Convening Authority must refer charges to a military commission and thus trigger these various procedural rights.
In 2011, President Obama also established a Periodic Review Board ("PRB") to consider on an intermittent basis whether continued detention of individuals held at Guantanamo remains "necessary to protect against a significant threat to the security of the United States." Exec. Order No. 13,567, 76 Fed. Reg. 13277 (Mar. 10 2011). If the PRB determines, in its discretion, that continued detention is unnecessary, then the Secretaries of State and Defense must take "vigorous efforts . . . to identify a suitable transfer location" for the detainee. Id. Congress has mandated that the PRB consider at least five factors in making its assessment, including "the likelihood the detainee may be subject to trial by military commission." Nat'l Def. Auth. Act for Fiscal Year 2012 ("NDAA 2012"), Pub. L. No 112-81, § 1023(b)(4), 125 Stat. 1298, 1564-65 (2011).
The crimes that Bin Lep allegedly committed transpired between 1996 and 2003. See Habeas Pet. ¶ 25. The Office of the Chief Prosecutor of the Department of Defense first swore draft charges against Bin Lep for that conduct on December 7, 2017. Martins Decl. ¶ 5. Those charges were returned by the Convening Authority at least twice because they did not attach therequisite endorsement attesting whether a trial would be harmful to national security. Id. ¶¶ 6-7. On April 5, 2019, the Chief Prosecutor swore a second set of charges against Bin Lep—adding "additional specifications to existing charges and alleg[ing] an additional charge of conspiracy." Id. ¶ 14. These charges were sent to the Convening Authority on October 8, 2019, id. ¶ 17, but no charges have yet been referred.
On October 15, 2020, Bin Lep filed his petition for a writ of habeas corpus challenging, inter alia, the legality of any future prosecution against him.1 Habeas Pet. at 1. Bin Lep also moved for a preliminary injunction precluding the government from "taking any further steps to . . . try him by military commission" until his habeas petition has been resolved. Pet'r's Mot. at 1. As grounds for the injunction, he asserts that the government's continued threat to prosecute him before a military commission is unlawful because (1) that threat arbitrarily impairs his right to seek habeas relief; (2) any prosecution would necessarily violate his speedy trial rights; and (3) any prosecution would violate principles of equal justice because only non-citizens can be tried by military commission under the MCA. Mem. of Law in Supp. of Pet'r's Mot. for a Prelim. Injunc. ("Pet'r's Br.") [ECF No. 41-1] at 11, 16, 24. The government opposes Bin Lep's motion on all three grounds. See Resp'ts' Opp'n to Pet'r's Mot. for Prelim. Inj. ("Resp'ts' Opp'n") [ECF No. 38]. The motion has been fully briefed and is now ripe for the Court's consideration.
Before reaching the merits of Bin Lep's request for preliminary relief, the Court mustexamine the threshold issues of jurisdiction and abstention. For the reasons summarized below, the Court is confident that it has jurisdiction to review Bin Lep's claims and that abstention, at this time, is unwarranted.
28 U.S.C. § 2241(e)(2) strips this Court of jurisdiction to review a detainee's non-habeas claims, and therefore the controlling jurisdictional question is whether Bin Lep's claims sound in habeas. Aamer v. Obama, 742 F.3d 1023, 1030 (D.C. Cir. 2014). "[A] person is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits." Id. at 1036 (quoting Miller v. Overholser, 206 F.2d 415, 420 (D.C. Cir. 1953)). Challenges to the place, fact, or duration of confinement, as well as to the conditions of confinement, are all proper habeas claims. Id.
The government argues that Bin Lep's claims do not sound in habeas because they "do[] not go to any aspect of his confinement or its lawfulness," but instead "concern only an 'aspect' of his possible 'trial.'" Resp'ts' Opp'n at 8. According to the government, Aamer requires that a conditions-of-confinement claim render the claimant's detention "illegal," and "where a detainee is, like Petitioner, an alien unprivileged enemy combatant legitimately detained under the AUMF," no such argument can be made. See id. at 9. This assertion, however, does not square with the plain language of Aamer analyzing whether the alleged deprivation "serves to make [petitioner's] imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits." 742 F.3d at 1036 (quoting Miller, 206 F.2d at 420) (emphases added). Rather,the Court finds that Bin Lep's claims are cognizable in habeas whether viewed as challenges to the place, fact, or duration of his confinement, or as conditions-of-confinement claims.
Bin Lep seeks to prohibit an allegedly unlawful threat of prosecution by a military commission on the theory that this threat deprives him of his right to seek meaningful habeas review of his detention status and otherwise violates his rights to a speedy trial and equal protection. Although the government rightly states that jurisdiction should not hinge on an "overly speculative" prediction about a series of events, see Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C. Cir. 2015), it seems straightforward that the status of Bin Lep's prosecution—whether it were to proceed or be prohibited altogether—could affect the fact, duration, or place...
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