EXPIRED - Bagram v. Guantanamo & Abu Graib

.
Click here to view possible topics for future meetings. Participants of each monthly meeting vote for the topic of the next monthly meeting.

If you would like to suggest a topic, it is requested as a courtesy that your suggestion be posted here at least 24 hours in advance so that others will have time to give it proper consideration.

EXPIRATION. We have always had a rule that a Possible Topic remains active so long as it receives at least one vote every six meetings. However, if a possible-topic proposal contains a wealth of information that is worth preserving but has not received a vote for six consecutive meetings, it is retained but listed as “Expired."

**********************
SHORT-FUSE NOTICE

*****
EXPLANATION

Occasionally, a Proposed Topic for Future Meetings has a SHORT-TIME FUSE because a governmental unit is soliciting PUBLIC COMMENTS for a limited time period with a SPECIFIED DEADLINE.

Exhibit A would be the 8/5/2016 Proposed Topic entitled “Clone Rights -- Involuntary Soldiers, Sex Slaves, Human Lab Rats, Etc.”

We had already focused on this topic for our 4/9/2008 meeting more than 8 years ago when the PBS Newshour interviewed a Yale U. Biology Professor who had already created a “Chimaera” with 25% Human DNA and 75% Chimp DNA (Chimps are the animals that share the most DNA with humans).

The Yale U. Biology Professor stated that he was then (2008) in the process of creating a “Chimaera” with 50% Human DNA and 50% Chimp DNA, and that he planned to create in the near future (2008 et seq.) a “Chimaera” with 75% Human DNA and 25% Chimp DNA.

As our 4/9/2008 meeting materials posted on http://www.ReadingLiberally-SaltLake.org disclose, Gwen Ifill who conducted the interview, was oblivious to the issue of the Nazi’s definition of a Jew based on the percentage of Jewish heritage and the Ante-Bellum American South’s definition of African-American based on the percentage of Sub-Saharan-African heritage.

But, even more appallingly, Gwen Ifill failed to ask the obvious question = What happens if the 50%-50% “Chimaera” then already being created happens to exhibit as DOMINANT TRAITS 100% Human DNA and as RECESSIVE TRAITS 100% Chimp DNA!!! Which, of course, would mean that Yale U. was treating as a lab rat a “Chimaera” that is 100% Human!!!

Unfortunately, the 8/5/2016 Proposed Topic was prompted by a Proposal from the National Institute of Health (NIH) which appeared in The Federal Register of 8/5/2016 and which had a 9/6/2016 deadline for public comments!!!

So our 9/14/2016 meeting, which was the first for which our focus had not already been determined as of 8/5/2016 under our normal rules, was too late.

So the reason for inaugurating this Short-Fuse Notice Section is to provide a Special Heads Up that a Proposed Topic has a Public-Comment Deadline that will occur before the first regular meeting date at which the topic can be discussed -- so that any of our readers who want to comply with the Public-Comment Deadline can contact the Proposer of the Topic in order to confer with anyone else who may be considering comments by the deadline.

*****
PENDING SHORT-FUSE PROPOSALS

1. Re “Clone Rights -- Involuntary Soldiers, Sex Slaves, Human Lab Rats, Etc.” (proposed 8/5/2016), although the 9/6/2016 public-comment deadline of the National Institute of Health (NIH) has passed, this Topic Proposal is still active. PLEASE NOTE ATTACHED TO THIS PROPOSAL THE 1/29/2017 UPDATE ENTITLED0 “HUMAN-PIG CHIMERAS -- DECENT BEHAVIOR DESPITE OPEN BARN DOOR.”

2. Re “Destroying Great Salt Lake To Grow Low-Profit Hay For China” (proposed 9/27/2016), there is a 10/24/2016 public-comment deadline that will occur before our first possible regular meeting (11/16/2016) at which this Proposed Topic could be considered.
Post Reply
solutions
Site Admin
Posts: 212
Joined: Fri Jul 13, 2007 8:38 pm

EXPIRED - Bagram v. Guantanamo & Abu Graib

Post by solutions »

.
During the 2008 Presidential election, both Sen. John McCain and Sen. Barack Obama said repeatedly that they would like to close our detention facility for terrorists at Guantanamo Bay, Cuba -- BECAUSE IT WAS AN EFFECTIVE RECRUITING TOOL FOR TERRORIST GROUPS SUCH AS AL QAEDA.

However, it is respectfully suggested that the pictures from Abu Graib in Iraq were probably a more effective recruiting tool.

And now the American detention facility for terrorists at the American air base at Bagram, Afghanistan, is probably as effective a recruiting tool for terrorist organizations as Abu Graib and Guantanamo Bay ever were.

Accordingly, I propose that we focus on the 5/21/2010 decision of the U.S. Court of Appeals for the D.C. Circuit holding that the 2007 decision of the U.S. Supreme Court in Boumediene v. Bush that foreign prisoners at Guantanamo Bay were entitled to habeas corpus review in U.S. federal courts does not apply to foreign prisoners held by the U.S. at its detention facility at the American air base at Bagram, Afghanistan -- AND, ACCORDINGLY, THE PETITIONS OF THREE FOREIGN PRISONERS OF THE U.S. AT ITS AIR BASE AT BAGRAM, AFGHANISTAN WERE DISMISSED.

It would appear that the Obama Administration, in arguing for the 5/21/2010 decision, does not believe the rhetoric of Candidate Obama.

Suggested reference materials would be the DC Circuit Court's 5/21/2010 Opinion in Maqaleh v. Gates that follows immediately below, the 2007 US Supreme Court opinion in Boumediene v. Bush, and any other materials that our members would like to post on our bulletin board.

************************************************************
FADI AL MAQALEH, DETAINEE AND AHMAD AL MAQALEH, AS NEXT FRIEND OF FADI AL MAQALEH, APPELLEES v. ROBERT M. GATES, SECRETARY, UNITED STATES DEPARTMENT OF DEFENSE, ET AL., APPELLANTS

No. 09-5265 Consolidated with 09-5266, 09-5267

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

2010 U.S. App. LEXIS 10384

January 7, 2010, Argued
May 21, 2010, Decided

PRIOR HISTORY: [*1]
Appeals from the United States District Court for the District of Columbia. (No. 1:06-cv-01669-JDB).
Maqaleh v. Gates, 604 F. Supp. 2d 205, 2009 U.S. Dist. LEXIS 49437 (D.D.C., 2009)
CORE TERMS: detainee, military, detention, territory, enemy, alien, habeas corpus, sovereignty, sovereign, de jure sovereignty, combatant, detained, military commission, jurisdiction to hear, theater of war, captured, weigh, abroad, constitutional protections, de facto, enumerated factors, jurisdictional, confinement, bright-line, citizenship, commander, lease, habeas petitions, interlocutory appeal, hostility


COUNSEL: Neal Kumar Katyal, Deputy Solicitor General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Beth S. Brinkmann, Deputy Assistant Attorney General, and Douglas N. Letter and Robert M. Loeb, Attorneys.

David B. Rivkin Jr., Lee A. Casey, and Carlos Ramos-Mrosovsky were on the brief for amici curiae Special Forces Association, et al. in support of appellants.

Tina Monshipour Foster argued the cause for appellees. With her on the brief were Barbara J. Olshansky and Ramzi Kassem.

George Brent Mickum IV was on the brief for amici curiae Constitutional Law Scholars in support of appellees and affirmance.

Walter Dellinger and Matthew Shors were on the brief for amici curiae Non-Governmental Organizations in support of appellees.

Paul M. Smith and Emily Berman were on the brief for amicus curiae Retired Military Officers in support of appellees.

Douglas W. Baruch was on the brief for amici curiae Professors of International Human Rights Law and Related Subjects in support of appellees.

JUDGES: Before: SENTELLE , Chief Judge, TATEL, Circuit Judge, and EDWARDS , Senior Circuit [*2] Judge. Opinion for the Court filed by Chief Judge SENTELLE .

OPINION BY: SENTELLE


OPINION


SENTELLE , Chief Judge: Three detainees at Bagram Air Force Base in Afghanistan petitioned the district court for habeas corpus relief from their confinement by the United States military. 1 Appellants (collectively "the United States" or "the government") moved to dismiss for lack of jurisdiction based on § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) ("MCA"). The district court agreed with the United States that § 7(a) of the MCA purported to deprive the court of jurisdiction, but held that this section could not constitutionally be applied to deprive the court of jurisdiction under the Supreme Court's test articulated in Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008). The court therefore denied the motion to dismiss but certified the three habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b). Pursuant to that certification, the government filed a petition to this court for interlocutory appeal. We granted the petition and now consider the jurisdictional question. Upon review, and applying the Supreme Court decision in Boumediene, we determine that the district court [*3] did not have jurisdiction to consider the petitions for habeas corpus. We therefore reverse the order of the district court and order that the petitions be dismissed.

FOOTNOTES

1 A fourth petition consolidated with these three in the district court was dismissed by the district court for lack of jurisdiction and is not a part of this interlocutory appeal.


I. Background

A. The Petitioners

All three petitioners are being held as unlawful enemy combatants at the Bagram Theater Internment Facility on the Bagram Airfield Military Base in Afghanistan. 2 Petitioner Fadi Al-Maqaleh is a Yemeni citizen who alleges he was taken into custody in 2003. While Al-Maqaleh's petition asserts "on information and belief" that he was captured beyond Afghan borders, a sworn declaration from Colonel James W. Gray, Commander of Detention Operations, states that Al-Maqaleh was captured in Zabul, Afghanistan. Redha Al-Najar is a Tunisian citizen who alleges he was captured in Pakistan in 2002. Amin Al-Bakri is a Yemeni citizen who alleges he was captured in Thailand in 2002. Both Al-Najar and Al-Bakri allege they were first held in some other unknown location before being moved to Bagram.

FOOTNOTES

2 As the distinction generally makes [*4] little difference, we will use "Bagram" to refer to both the Internment Facility and the Military Base, unless the context indicates otherwise.


B. The Place of Confinement

Bagram Airfield Military Base is the largest military facility in Afghanistan occupied by United States and coalition forces. The United States entered into an "Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield" with the Islamic Republic of Afghanistan in 2006, which "consigns all facilities and land located at Bagram Airfield . . . owned by [Afghanistan,] or Parwan Province, or private individuals, or others, for use by the United States and coalition forces for military purposes." (Accommodation and Consignment Agreement for Lands and Facilities at Bagram Airfield Between the Islamic Republic of Afghanistan and the United States of America) (internal capitalization altered). The Agreement refers to Afghanistan as the "host nation" and the United States "as the lessee." The leasehold created by the agreement is to continue "until the United States or its successors determine that the premises are no longer required for its use." Id. (internal capitalization altered).

Afghanistan remains [*5] a theater of active military combat. The United States and coalition forces conduct "an ongoing military campaign against al Qaeda, the Taliban regime, and their affiliates and supporters in Afghanistan." These operations are conducted in part from Bagram Airfield. Bagram has been subject to repeated attacks from the Taliban and al Qaeda, including a March 2009 suicide bombing striking the gates of the facility, and Taliban rocket attacks in June of 2009 resulting in death and injury to United States service members and other personnel.

While the United States provides overall security to Bagram, numerous other nations have compounds on the base. Some of the other nations control access to their respective compounds. The troops of the other nations are present at Bagram both as part of the American-led military coalition in Afghanistan and as members of the International Security Assistance Force (ISAF) of the North Atlantic Treaty Organization. The mission of the ISAF is to support the Afghan government in the maintenance of security in Afghanistan. See S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec. 20, 2001); S.C. Res. 1510, U.N. Doc. S/RES/1510 (Oct. 13, 2003); S.C. Res. 1833, U.N. Doc. [*6] S/RES/1833 (Sept. 22, 2008). According to the United States, as of February 1, 2010, approximately 38,000 non-United States troops were serving in Afghanistan as part of the ISAF, representing 42 other countries. See International Security Assistance Force, International Security Assistance Force and Afghan National Army Strength & Laydown, http://www.nato.int/isaf/docu/epub/pdf/placemat.pdf.

C. The Litigation

Appellees in this action, three detainees at Bagram, filed habeas petitions against the President of the United States and the Secretary of Defense in the district court. The government moved to dismiss for lack of jurisdiction, relying principally upon § 7(a) of the Military Commissions Act of 2006. The district court consolidated these three cases and a fourth case, not a part of these proceedings, for argument. After the change in presidential administrations on January 22, 2009, the court invited the government to express any change in its position on the jurisdictional question. The government informed the district court that it "adheres to its previously articulated position."

The district court, recognizing that the issue of whether the court had jurisdiction presented a [*7] controlling question of law as to which there were substantial grounds for difference of opinion, certified the question for interlocutory appeal under 28 U.S.C. § 1292(b). Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 54-56 (D.D.C. 2009). We accepted the case for interlocutory review, In re Gates, No. 09-8004, 2009 U.S. App. LEXIS 17032 (D.C. Cir. July 30, 2009), bringing the jurisdictional issue before us in the present appeal.

II. Analysis

A. The Legal Framework

While we will discuss specific points of law in more detail below, for a full understanding, we must first set forth some of the legal history underlying the controversy over the availability of the writ of habeas corpus and the constitutional protections it effectuates to noncitizens of the United States held beyond the sovereign territory of the United States. The Supreme Court first addressed this issue in Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936, 94 L. Ed. 1255 (1950). In Eisentrager 21 German nationals petitioned the district court for writs of habeas corpus. The Eisentrager petitioners had been convicted by a military commission in China of "engaging in, permitting or ordering continued military activity against the United States after surrender [*8] of Germany and before surrender of Japan." Id. at 766. Because, during that period, the United States and Germany were no longer at war, hostile acts against the United States by German citizens were violations of the law of war. Petitioners were captured in China, tried in China, and repatriated to Germany to serve their sentences in Landsberg Prison, a facility under the control of the United States as part of the Allied Powers' post-war occupation. Id. None ever entered the United States, nor were any held in the United States.

Petitioners sought habeas relief, alleging that their confinement was in violation of the Constitution and laws of the United States and the Geneva Convention. Id. at 767; see also Eisentrager v. Forrestal, 174 F.2d 961, 84 U.S. App. D.C. 396 (D.C. Cir. 1949). The district court held that under Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898 (1948), statutory jurisdiction over habeas petitions did not extend to aliens who were neither confined nor convicted in the district of the court and whose custodians were beyond geographic boundaries of the district in which the court sat. The court dismissed the writ. The petitioners appealed. The Court of Appeals reversed the district court's judgment.

The [*9] Court of Appeals read Ahrens as having left open the governing questions of the controversy before it, and held that since "[t]he right to habeas corpus is an inherent common law right," Eisentrager v. Forrestal, 174 F.2d at 965, a jurisdictional statute could not deprive anyone of whatever would be the fundamental right to habeas corpus because of the provision in Article I of the Constitution that the "Federal Government cannot suspend the privilege, except when, in cases of rebellion or invasion, the public safety may so require." 174 F.2d at 965-66 (citing U.S. CONST. Art. I, § 9, cl. 2).

The court reasoned that as "Congress could not effectuate by omission that which it could not accomplish by affirmative action," if the existing jurisdictional act had the effect of depriving a person entitled to the writ of his substantive right, the act would be unconstitutional, and therefore the court must construe it "if possible to avoid that result." Id. at 966. The court ruled that the district court that had jurisdiction over the superior officers of the immediate jailer would have jurisdiction to hear the petition and grant or deny the writ. Id. at 967. The Secretary of Defense became [*10] the relevant official. He sought certiorari from the Supreme Court. The Supreme Court granted review and reversed. By way of introduction to its reasoning, the Court noted that "[w]e are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction." Eisentrager, 339 U.S. at 768.

The Court went on to hold that the writ was unavailable to the enemy aliens beyond the sovereign territory of the United States. The Court did not end its discussion with the language concerning sovereignty, however. It noted that trial of the writ "would hamper the war effort and bring aid and comfort to the enemy." Id. at 779. The Court further noted that such trial would constitute "effective fettering of a field commander," by allowing "the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home." Id.

The Eisentrager case remained the governing precedent concerning the jurisdiction of United [*11] States courts over habeas petitions on behalf of aliens held outside the sovereign territory of the United States until the Court revisited the question in Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (2004). In Rasul the petitioners were aliens (not from enemy nations) who were captured abroad during hostilities between the United States and the Taliban. The United States transported them to the naval base at Guantanamo Bay, Cuba, which the United States holds under a 1903 lease agreement specifying that: "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the [leased areas]." Id. at 471 (quoting the lease agreement). Thus, the habeas corpus petitioners were foreign nationals, not from nations currently in a state of war with the United States, taken by the United States military, and transported to locations outside the sovereign territory of the United States. Relying on Eisentrager, the district court dismissed the case for lack of jurisdiction. Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002). This court affirmed. In Al Odah v. United States, 321 F.3d 1134, 355 U.S. App. D.C. 189 (D.C. Cir. 2003), we called it "the heart of Eisentrager," that the writ cannot be "made [*12] available to aliens abroad when basic constitutional protections are not." Id. at 1141. The detainees petitioned for certiorari to the Supreme Court. The Supreme Court granted review.

The district court and the Court of Appeals had accepted the government's argument that the relevant facts of Rasul were not distinguishable from those in Eisentrager in any material way. The Supreme Court, while not overruling Eisentrager, explained that the lower courts had misinterpreted the earlier Supreme Court decision. The Rasul Court stated that the consolidated cases before it "present the narrow but important question whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba." 542 U.S. at 470. The Court explained that the Eisentrager decision dealt primarily with constitutional jurisdiction, with little to say as to the "petitioners' statutory entitlement to habeas review." Id. at 476 (emphasis in the original). More specifically, the Rasul Court opined that the Eisentrager Court was construing the effect of Ahrens v. Clark. The [*13] posture of the petitions before the Eisentrager Court was that the Court of Appeals had concluded that the Ahrens decision created a "statutory gap" which the Court of Appeals in Eisentrager had seen as an unconstitutional gap to be filled by reference to "fundamentals." Rasul at 478 (quoting 174 F.2d at 963). The Supreme Court in Eisentrager agreed that the Ahrens decision controlled as to statutory jurisdiction but did not agree with the Court of Appeals that the gap was unconstitutional. The Rasul Court treated the Ahrens analysis as being essential to the decision in Eisentrager, and held that Ahrens has been overruled by Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973), in which, according to the Rasul Court, the Supreme Court held "contrary to Ahrens, that the prisoner's presence within the territorial jurisdiction of the district court is not 'an invariable prerequisite' to the exercise of district court jurisdiction under the federal habeas statute." Id. at 478.

The Rasul Court reasoned that because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager did not compel a holding that the courts lack jurisdiction to issue the writ. [*14] The Rasul Court then held that the habeas statute did extend geographically to the base at which the petitioners were held in Guantanamo. "At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm . . . ." Id. at 481. Citing Lord Mansfield from 1759, the Rasul majority stated that "there was 'no doubt' as to the court's power to issue writs of habeas corpus if the territory was 'under the subjection of the Crown.'" Id. at 482 (citing King v. Cowle, 2 Burr. 834, 854-55, 97 Eng. Rep. 587, 598-99 (K.B.)). The Court noted that no one questioned the district court's jurisdiction over the custodians of the petitioners and "therefore [held] that § 2241 confers on the district court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base." Id. at 484. Finally, the Court concluded that
[w]hat is presently at stake is . . . whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.
542 U.S. at 485. The Court "[a]nswer[ed] that question [*15] in the affirmative, . . . reverse[d] the judgment of the Court of Appeals and remand[ed] the[] cases for the district court to consider in the first instance the merits of the petitioners' claims." Id.

Responding to the Rasul decision, Congress passed the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739 (2005) (DTA), which President Bush signed into law on December 30 of that year. Among other things, that Act added a new provision to the Habeas Act which provided that:
Except as provided in section 1005 of the [DTA] 3, no court, justice, or judge shall have jurisdiction to hear or consider --
(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who

(A) is currently in military custody; or

(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit . . . to have been properly detained as an enemy combatant.


FOOTNOTES

3 The reference to § 1005 as an exception to the jurisdiction stripping [*16] provision refers to subsections of the DTA which provided for exclusive judicial review of Combatant Status Review Tribunal determinations and military commission decisions by the United States Court of Appeals for the District of Columbia Circuit.


In June of 2006, the Supreme Court decided Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006), which reversed another decision of this court. See Hamdan v. Rumsfeld, 415 F.3d 33, 367 U.S. App. D.C. 265 (D.C. Cir. 2005). In Hamdan, the Supreme Court held that the DTA did not operate to strip the federal courts of jurisdiction to hear petitions for writs of habeas corpus on behalf of Guantanamo detainees that were pending at the time of the DTA's enactment. Therefore, the Supreme Court reversed this court's dismissal of the petitions and remanded again for further proceedings.

In October of 2006, in response to the Hamdan decision, Congress passed the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120 Stat. 2600 (2006). That Act, among many other things, included a further amendment to the habeas statute. The new amendment reads:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf [*17] of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
Congress went on to explicitly state:
The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
This clearer statement of congressional intent to strip the courts of habeas jurisdiction set the stage for an inevitable determination [*18] of the constitutionality of such a stripping in light of the Suspension Clause, U.S. CONST. Art. I, § 9, cl. 2. That case came to us in Boumediene v. Bush, 476 F.3d 981, 375 U.S. App. D.C. 48 (2007). A divided panel held that the statute was constitutional.

In Boumediene, we reasoned that the Rasul decision had not overruled Eisentrager, and therefore the earlier case remained precedentially binding upon us. We read Eisentrager as holding that constitutional habeas rights did not extend to any aliens who had never been in or brought into the sovereign territory of the United States. We further reasoned that Congress's power to regulate our jurisdiction permitted Congress to strip the courts of any jurisdiction to hear habeas claims for aliens who had no constitutional right to habeas relief, without regard to the Suspension Clause. The Supreme Court in Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229, 171 L. Ed. 2d 41 (2008), reversed our decision.

At the outset, the Supreme Court agreed with our court that the Military Commissions Act, 28 U.S.C. § 2241(e), did in fact "deprive[] the federal courts of jurisdiction to entertain the habeas corpus actions" by the detainees held at Guantanamo Bay. 128 S. Ct. at 2244. The Court [*19] therefore faced the constitutional questions
whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, . . . designation by the Executive Branch as enemy combatants, or their physical location . . . at Guantanamo Bay.
Id.

In a thorough and detailed opinion, the Court undertook its inquiry into the constitutional questions on two levels. First, it explored the breadth of the Court's holding in Eisentrager (still not overruled) in response to the argument by the United States that constitutional rights protected by the writ of habeas corpus under the Suspension Clause extended only to territories over which the United States held de jure sovereignty. Second, it explored the more general question of extension of constitutional rights and the concomitant constitutional restrictions on governmental power exercised extraterritorially and with respect to noncitizens. In so doing, the Court set forth a "broad historical narrative of the writ [of habeas corpus] and its function . . . ." Id. at 2248. While the Court concluded that the historical record did not provide a clear answer, it accepted the government's position [*20] that the United States did not exercise de jure sovereignty over Guantanamo Bay, but took notice of "the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory." Id. at 2253 (citing Rasul, 542 U.S. at 480). However, the Court further concluded that "the Government's premise that de jure sovereignty is the touchstone of habeas jurisdiction. . . . is unfounded." Id.

The Court reasoned that the adoption of a bright-line rule based on de jure sovereignty would be inconsistent with a long line of Supreme Court cases exploring "the Constitution's geographic scope." Id. In explaining this proposition, the Court explored the series of opinions known as the "Insular Cases," in which the Court had "addressed whether the Constitution, by its own force, applies in any territory that is not a state." Id. at 2254 (citing De Lima v. Bidwell, 182 U.S. 1, 21 S. Ct. 743, 45 L. Ed. 1041 (1901); Dooley v. United States, 182 U.S. 222, 21 S. Ct. 762, 45 L. Ed. 1074 (1901); Armstrong v. United States, 182 U.S. 243, 21 S. Ct. 827, 45 L. Ed. 1086 (1901), Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (1901); Hawaii v. Mankichi, 190 U.S. 197, 23 S. Ct. 787, 47 L. Ed. 1016 (1903); Dorr v. United States, 195 U.S. 138, 24 S. Ct. 808, 49 L. Ed. 128 (1904)). The Boumediene [*21] Court recalled the practical doctrine drawn from the Insular Cases and applied in such later decisions as Reid v. Covert, 354 U.S. 1, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957), and United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), applying the Constitution by its own force in territories which were destined for apparent statehood, but recognizing a more practical and selective application of constitutional protection of rights in territories temporarily held by the United States, or in acts by the United States government outside United States territory altogether.

More directly pertinent to the issue before us today, the Court stated that "nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus." 128 S. Ct. at 2258. The Court explained that such a holding would have been inconsistent with the Insular Cases and Reid. Seeing no need to create such a conflict between its holdings, the Court found what it called "a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism." Id.

Applying [*22] the "common thread" to the question of the jurisdiction of United States courts to consider habeas petitions from detainees in Guantanamo, the Court concluded that "at least three factors are relevant in determining the reach of the Suspension Clause." Id. at 2259. Those three factors, which we must apply today in answering the same question as to detainees at Bagram, are:
(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.
Id. Applying these factors to the detainees at Guantanamo, the Court held that the petitioners had the protection of the Suspension Clause.

B. Application to the Bagram Petitioners

Our duty, as explained above, is to determine the reach of the right to habeas corpus and therefore of the Suspension Clause to the factual context underlying the petitions we consider in the present appeal. In doing so, we are controlled by the Supreme Court's interpretation of the Constitution in Eisentrager as construed and explained in the [*23] Court's more recent opinion in Boumediene. This is not an easy task, as illustrated by the thorough and careful opinion of the district court. While we are properly respectful of the district court's careful undertaking of this difficult task, as we review rulings on motions to dismiss under Federal Rule of Civil Procedure 12 de novo, we reexamine the issue and ultimately reach a different conclusion.

At the outset, we note that each of the parties has asserted both an extreme understanding of the law after Boumediene and a more nuanced set of arguments upon which each relies in anticipation of the possible rejection of the bright-line arguments. The United States would like us to hold that the Boumediene analysis has no application beyond territories that are, like Guantanamo, outside the de jure sovereignty of the United States but are subject to its de facto sovereignty. As the government puts it in its reply brief, "[t]he real question before this Court, therefore, is whether Bagram may be considered effectively part of the United States in light of the nature and history of the U.S. presence there." Reply Br. of the United States at 7. We disagree.

Relying upon three independent [*24] reasons, the Court in Boumediene expressly repudiated the argument of the United States in that case to the effect "that the Eisentrager Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause." 128 S. Ct. at 2257. Briefly put, the High Court rejected that argument first on the basis that the Eisentrager Court's further analysis beyond recitations concerning sovereignty would not have been undertaken by the Court if the sovereignty question were determinative. The Boumediene Court explicitly did "not accept the idea that . . . the [sovereignty discussion] from Eisentrager is the only authoritative language in the opinion and that all the rest is dicta. The Court's further determinations, based on practical considerations, were integral to Part II of its opinion and came before the decision announced its holding." Id. Second, the Court rejected the Government's reading of Eisentrager because the meaning of the word "sovereignty" in the Eisentrager opinion was not limited to the "narrow technical sense" of the word and could be read "to connote the degree of control the military asserted over the facility." Id. The third reason is the one [*25] we noted above, that is, that the Court concluded that such a reading of Eisentrager as proposed by the United States "would have marked not only a change in, but a complete repudiation of, the Insular Cases' (and later Reid's) functional approach to questions of extraterritoriality." Id. at 2258.

True, the second factor articulated in Boumediene for rejecting the government's reading of Eisentrager might apply differently in this case because of differences in the levels of control over the military facilities. But we must keep in mind that the second factor is only one of the three reasons offered by the Boumediene Court for the rejection of "a formalistic, sovereignty-based test for determining the reach of the Suspension Clause." Id. at 2257. Whatever the force of the second reason offered by the Court in Boumediene, the first and third reasons make it plain that the Court's understanding of Eisentrager, and therefore of the reach of the Suspension Clause, was based not on a formalistic attachment to sovereignty, but on a consideration of practical factors as well. We note that the very fact that the Boumediene Court set forth the three-factor test outlined above parallels the Eisentrager [*26] Court's further reasoning addressed by the Boumediene Court in its rejection of the bright-line de jure sovereignty argument before it. That is, had the Boumediene Court intended to limit its understanding of the reach of the Suspension Clause to territories over which the United States exercised de facto sovereignty, it would have had no need to outline the factors to be considered either generally or in the detail which it in fact adopted. We therefore reject the proposition that Boumediene adopted a bright-line test with the effect of substituting de facto for de jure in the otherwise rejected interpretation of Eisentrager.

For similar reasons, we reject the most extreme position offered by the petitioners. At various points, the petitioners seem to be arguing that the fact of United States control of Bagram under the lease of the military base is sufficient to trigger the extraterritorial application of the Suspension Clause, or at least satisfy the second factor of the three set forth in Boumediene. Again, we reject this extreme understanding. Such an interpretation would seem to create the potential for the extraterritorial extension of the Suspension Clause to noncitizens held [*27] in any United States military facility in the world, and perhaps to an undeterminable number of other United States-leased facilities as well. Significantly, the court engaged in an extended dialog with counsel for the petitioners in which we repeatedly sought some limiting principle that would distinguish Bagram from any other military installation. Counsel was able to produce no such distinction. See Transcript of Oral Argument, pp. 30-47. Again, such an extended application is not a tenable interpretation of Boumediene. If it were the Supreme Court's intention to declare such a sweeping application, it would surely have said so. Just as we reject the extreme argument of the United States that would render most of the decision in Boumediene dicta, we reject the first line of argument offered by petitioners. Having rejected the bright-line arguments of both parties, we must proceed to their more nuanced arguments, and reach a conclusion based on the application of the Supreme Court's enumerated factors to the case before us.

The first of the enumerated factors is "the citizenship and status of the detainee and the adequacy of the process through which that status determination was [*28] made." Citizenship is, of course, an important factor in determining the constitutional rights of persons before the court. It is well established that there are "constitutional decisions of [the Supreme] Court expressly according differing protection to aliens than to citizens." United States v. Verdugo-Urquidez, 494 U.S. at 273. However, clearly the alien citizenship of the petitioners in this case does not weigh against their claim to protection of the right of habeas corpus under the Suspension Clause. So far as citizenship is concerned, they differ in no material respect from the petitioners at Guantanamo who prevailed in Boumediene. As to status, the petitioners before us are held as enemy aliens. But so were the Boumediene petitioners. While the Eisentrager petitioners were in a weaker position by having the status of war criminals, that is immaterial to the question before us. This question is governed by Boumediene and the status of the petitioners before us again is the same as the Guantanamo detainees, so this factor supports their argument for the extension of the availability of the writ.

So far as the adequacy of the process through which that status determination was [*29] made, the petitioners are in a stronger position for the availability of the writ than were either the Eisentrager or Boumediene petitioners. As the Supreme Court noted, the Boumediene petitioners were in a very different posture than those in Eisentrager in that "there ha[d] been no trial by military commission for violations of the laws of war." 128 S. Ct. at 2259. Unlike the Boumediene petitioners or those before us, "[t]he Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them." Id. at 2260. The Eisentrager detainees were "entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution's witnesses" in an adversarial proceeding. Id. The status of the Boumediene petitioners was determined by Combatant Status Review Tribunals (CSRTs) affording far less protection. Under the CSRT proceeding, the detainee, rather than being represented by an attorney, was advised by a "Personal Representative" who was "not the detainee's lawyer or even his 'advocate.'" Id. The CSRT proceeding was less protective than the military tribunal procedures in Eisentrager in other [*30] particulars as well, and the Supreme Court clearly stated that "[t]he difference is not trivial." Id. at 2259.

The status of the Bagram detainees is determined not by a Combatant Status Review Tribunal but by an "Unlawful Enemy Combatant Review Board" (UECRB). As the district court correctly noted, proceedings before the UECRB afford even less protection to the rights of detainees in the determination of status than was the case with the CSRT. 4 Therefore, as the district court noted, "while the important adequacy of process factor strongly supported the extension of the Suspension Clause and habeas rights in Boumediene, it even more strongly favors petitioners here." Al Maqaleh, 604 F. Supp. 2d at 227. Therefore, examining only the first of the Supreme Court's three enumerated factors, petitioners have made a strong argument that the right to habeas relief and the Suspension Clause apply in Bagram as in Guantanamo. However, we do not stop with the first factor.

FOOTNOTES

4 The Government argues that in our analysis of this first factor, we should consider new procedures that it has put into place at Bagram in the past few months for evaluating the continued detention of individuals. But we will [*31] decide this case based on the procedures that have been in place, not on the new procedures that are being implemented only now when the case is before the Court of Appeals.


The second factor, "the nature of the sites where apprehension and then detention took place," weighs heavily in favor of the United States. Like all petitioners in both Eisentrager and Boumediene, the petitioners here were apprehended abroad. While this in itself would appear to weigh against the extension of the writ, it obviously would not be sufficient, otherwise Boumediene would not have been decided as it was. However, the nature of the place where the detention takes place weighs more strongly in favor of the position argued by the United States and against the extension of habeas jurisdiction than was the case in either Boumediene or Eisentrager. In the first place, while de facto sovereignty is not determinative, for the reasons discussed above, the very fact that it was the subject of much discussion in Boumediene makes it obvious that it is not without relevance. As the Supreme Court set forth, Guantanamo Bay is "a territory that, while technically not part of the United States, is under the complete [*32] and total control of our Government." 128 S. Ct. at 2262. While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the "host" country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the petitioners, it is not determinative.

But we hold that the third factor, that is "the practical obstacles inherent in resolving the prisoner's entitlement [*33] to the writ," particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantanamo, the position of the United States is even stronger in this case than it was in Eisentrager. As the Supreme Court recognized in Boumediene, even though the active hostilities in the European theater had "c[o]me to an end," at the time of the Eisentrager decision, many of the problems of a theater of war remained:
In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military's efforts to contain "enemy elements, guerilla fighters, and 'were-wolves.'"
128 S. Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784).

In ruling for the extension of the writ to Guantanamo, the [*34] Supreme Court expressly noted that "[s]imilar threats are not apparent here." 128 S. Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene that at Guantanamo, "[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be 'impractical or anomalous' would have more weight." Id. at 2261-62 (emphasis added). Indeed, the Supreme Court supported this proposition with reference to the separate opinion of Justice Harlan in Reid, where the Justice expressed his doubts that "every provision of the Constitution must always be deemed automatically applicable to United States citizens in every part of the world." See 354 U.S. at 74 (Harlan, J., concurring in the result). We therefore conclude that under both Eisentrager [*35] and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.

We are supported in this conclusion by the rationale of Eisentrager, which was not only not overruled, but reinforced by the language and reasoning just referenced from Boumediene. As we referenced in the background discussion of this opinion, we set forth more fully now concerns expressed by the Supreme Court in reaching its decision in Eisentrager:
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting [*36] to enemies of the United States.
Eisentrager, 339 U.S. at 779. Those factors are more relevant to the situation at Bagram than they were at Landsberg. While it is true, as the Supreme Court noted in Boumediene, that the United States forces in Germany in 1950 faced the possibility of unrest and guerilla warfare, operations in the European theater had ended with the surrender of Germany and Italy years earlier. Bagram remains in a theater of war. We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.

We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able "to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will." Brief of Appellees at 34 (quotation marks and citation omitted). However, [*37] that is not what happened here. Indeed, without dismissing the legitimacy or sincerity of appellees' concerns, we doubt that this fact goes to either the second or third of the Supreme Court's enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation. In so stating, we note that the Supreme Court did not dictate that the three enumerated factors are exhaustive. It only told us that "at least three factors" are relevant. Boumediene, 128 S. Ct. at 2259 (emphasis added). Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present. However, the notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to "turn off the Constitution" would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history set [*38] forth above and predict the Boumediene decision long before it came down.

Also supportive of our decision that the third factor weighs heavily in favor of the United States, as the district court recognized, is the fact that the detention is within the sovereign territory of another nation, which itself creates practical difficulties. Indeed, it was on this factor that the district court relied in dismissing the fourth petition, which was filed by an Afghan citizen detainee. Al Maqaleh, 604 F. Supp. 2d at 229-30, 235. While that factor certainly weighed more heavily with respect to an Afghan citizen, it is not without force with respect to detainees who are alien to both the United States and Afghanistan. The United States holds the detainees pursuant to a cooperative arrangement with Afghanistan on territory as to which Afghanistan is sovereign. While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that relationship, neither can we say with certainty what the reaction of the Afghan government would be.

In sum, taken together, the second and especially the third factors compel us to hold that the petitions should have been [*39] dismissed.

CONCLUSION

For the reasons set forth above, we hold that the jurisdiction of the courts to afford the right to habeas relief and the protection of the Suspension Clause does not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war. We therefore reverse the order of the district court denying the motion for dismissal of the United States and order that the petitions be dismissed for lack of jurisdiction.

So ordered.

johnkarls
Posts: 2034
Joined: Fri Jun 29, 2007 8:43 pm

Mahmoad Abdah, et. al., v. Barack H. Obama - 5/26/2010

Post by johnkarls »

.
Editorial Note:

This is one of the habeas corpus petitions in the U.S. District Court for Washington DC reviewing the facts behind the detention of various foreigners at Guantanamo Bay, Cuba.

This petition involved the case of a Yemeni citizen who was seized by the Pakistani police in a 2002 raid of a house in which, from reading the opinion, it appears many of the occupants were connected to Al Qaeda.

However, it appears that the Yemeni citizen in question had arrived at the house for the first time just prior to the raid and did not have any connection to Al Qaeda.

Nevertheless, he has been in U.S. custody since shortly after being captured by Pakistani police – virtually all of that time at Guantanamo Bay but, interestingly, briefly at Bagram before being transferred to Guantanamo.

[It would appear that the reason for the transfer in 2002 would have been that Guantanamo was still thought at that time (like Abu Graib, Iraq and Bagram, Afghanistan) to be beyond the reach of habeas corpus but, unlike Abu Graib and Bagram, to be on U.S. territory which would preclude any foreign voice in what might transpire.]

One of the most fascinating aspects of this case is contained in the two paragraphs immediately preceding Footnote 21 (footnote numbers are better than page numbers for finding something in this opinion).

Those two paragraphs say that in June 2009, the U.S. Government decided to approve the Yemeni citizen for transfer from Guantanamo “consistent with the national security and foreign policy interests of the U.S.” to “an appropriate destination country” – whatever that first quoted phrase might mean. In November 2009, the Yemeni Ambassador to the U.S. signed a declaration indicating Yemen was willing to accept the Yemeni citizen. However, on January 8, 2010, the Court was informed “that, pursuant to a decision by President Obama, no Guantanamo detainees approved for transfer were to be sent to Yemen.”

It would be interesting to compare President Obama’s decision regarding Yemen with what was transpiring at that time in Yemen (perhaps someone else could “chase that rabbit”).


***************************************************************
MAHMOAD ABDAH, et al., Petitioners, v. BARACK H. OBAMA, et al, Respondents.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 26, 2010, Decided
May 26, 2010, Filed


COUNSEL: [*1] For MAHMOAD ABDAH, Detainee, Camp Delta, MAKHTAR YAHIA NAJI AL-WRAFIE, Detainee, Camp Delta, YASEIN KHASEM MOHAMMAD ESMAIL, Detainee, Camp Delta, OTHMAN ABDULRAHEEM MOHAMMAD, Detainee, Camp Delta, SALMAN YAHALDI HSAN MOHAMMED SAUD, Detainee, Camp Delta, Petitioners: Alan Arnold Pemberton, Schuyler William Livingston, Jr., LEAD ATTORNEYS, COVINGTON & BURLING, Washington, DC; David H. Remes, LEAD ATTORNEY, Appeal for Justice, Silver Spring, MD; Marc D. Falkoff, LEAD ATTORNEY, NORTHERN ILLINOIS UNIVERSITY, DeKalb, IL; Anthony J. Phillips, Brian E. Foster, Philip A. Scarborough, COVINGTON & BURLING LLP, Washington, DC.

For MAHMOAD ABDAH AHMED, as next friend of Mahmoad Abdah, also known as, MAHMOOD ABDO AHMED BIN AHMED, MAJID MAHMOUD AHMED, Detainee, Camp Delta, also known as, MAJED MOHMOOD, also known as, MAHMOUD AHMED, as next friend of Majid Abdah Ahmed, ABDULMALIK ABDULWAHHAB AL-RAHABI, Detainee, Camp Delta, AHMED ABDULWAHHAB, as next friend of Abdulmalik Abdulwahhab Al-Rahabi, FOADE YAHIA NAJI AL-WRAFIE, as next friend of Makhtar Yahia Naji Al-Wrafie, AREF ABD IL RHEEM, Detainee, Camp Delta, AREF ABD AL RAHIM, as next friend of Aref Abd Il Rheem, JAMEL KHASEM MOHAMMAD, as next friend [*2] of Yasein Khasem Mohammad Esmail, NABIL MOHAMED MAR'I, as next friend of Jamal Mar'i, ARAF ABDULRAHEEM MOHAMMAD, as next friend Othman Abdulraheem Mohammad, MOHAMED MOHAMED HASSAN ODAINI, Detainee, Camp Delta, BASHIR MOHAMED HASSAN ODAINI, as next friend of Mohamed Mohamed Hassan Odaini, ABD ALSALAM MOHAMMED SAEED, as next friend of Sadeq Mohammed Said, FAROUK ALI AHMED SAIF, Detainee, Camp Delta, SHEAB AL MOHAMEDI, as next friend of Farouk Ali Ahmed Saif, YAHIVA HSANE MOHAMMED SAUD AL-RBUAYE, as next friend of Salman Yahaldi Hsan Mohammed Saud, Petitioners: Alan Arnold Pemberton, Schuyler William Livingston, Jr., LEAD ATTORNEYS, COVINGTON & BURLING, Washington, DC; David H. Remes, LEAD ATTORNEY, Appeal for Justice, Silver Spring, MD; Marc D. Falkoff, LEAD ATTORNEY, NORTHERN ILLINOIS UNIVERSITY, DeKalb, IL; Anthony J. Phillips, Philip A. Scarborough, COVINGTON & BURLING LLP, Washington, DC.

For ADNAN FARHAN ABDUL LATIF, Detainee, Camp Delta, Petitioner: Alan Arnold Pemberton, Schuyler William Livingston, Jr., LEAD ATTORNEYS, COVINGTON & BURLING, Washington, DC; David H. Remes, LEAD ATTORNEY, Appeal for Justice, Silver Spring, MD; Marc D. Falkoff, LEAD ATTORNEY, NORTHERN ILLINOIS UNIVERSITY, [*3] DeKalb, IL; Anthony J. Phillips, Brian E. Foster, James McCall Smith, Philip A. Scarborough, COVINGTON & BURLING LLP, Washington, DC.

For MOHAMED FARHAN ABDUL LATIF, as next friend of Adnan Farhan Abdul Latif, ADIL EL HAJ OBAID, Detainee, Camp Delta, NAZEM SAEED EL HAJ OBAID, as next friend of Adil Saeed El Haj Obaid, Petitioners: Alan Arnold Pemberton, Schuyler William Livingston, Jr., LEAD ATTORNEYS, COVINGTON & BURLING, Washington, DC; David H. Remes, LEAD ATTORNEY, Appeal for Justice, Silver Spring, MD; Marc D. Falkoff, LEAD ATTORNEY, NORTHERN ILLINOIS UNIVERSITY, DeKalb, IL; Anthony J. Phillips, James McCall Smith, Philip A. Scarborough, COVINGTON & BURLING LLP, Washington, DC.

For SADEQ MOHAMMED SAID, Detainee, Camp Delta, Petitioner: David H. Remes, LEAD ATTORNEY, Appeal for Justice, Silver Spring, MD; Marc D. Falkoff, LEAD ATTORNEY, NORTHERN ILLINOIS UNIVERSITY, DeKalb, IL; Schuyler William Livingston, Jr., LEAD ATTORNEY, COVINGTON & BURLING, Washington, DC; Anthony J. Phillips, Philip A. Scarborough, COVINGTON & BURLING LLP, Washington, DC.

For ALL PETITIONERS, Petitioner: Alan Arnold Pemberton, Schuyler William Livingston, Jr., LEAD ATTORNEYS, COVINGTON & BURLING, Washington, [*4] DC; David H. Remes, LEAD ATTORNEY, Appeal for Justice, Silver Spring, MD; Marc D. Falkoff, LEAD ATTORNEY, NORTHERN ILLINOIS UNIVERSITY, DeKalb, IL; Anna Elizabeth Cross, Anthony J. Phillips, Brian E. Foster, James McCall Smith, Philip A. Scarborough, COVINGTON & BURLING LLP, Washington, DC.

For GEORGE W. BUSH, JR., President of the United States, Respondent: Ann E. Nash, John P. Lohrer, Jonathan S. Needle, Linda Beth Alberty, Phillip Michael Truman, Rodney Patton, Scott Michael Marconda, Stephen P. Finn, LEAD ATTORNEYS, Alexander Kenneth Haas, David Hugh White, Jean Lin, Joseph Charles Folio, III, Julia A. Berman, Kathryn Celia Mason, Kristina Ann Wolfe, Nicole Newcomb Murley, Patrick D. Davis, Paul A. Dean, Scott Douglas Levin, Sean W. O'Donnell, Jr., Timothy Andrew Johnson, Timothy Burke Walthall, William G. Kanellis, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Hector G. Bladuell, Sarah Maloney, LEAD ATTORNEYS, Stephen McCoy Elliott, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Andrew I. Warden, Robert J. Prince, U.S. Department of Justice, Civil Division, Washington, DC; Norman Christopher Hardee, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For DONALD RUMSFELD, [*5] Secretary, United States Department of Defense, Respondent: Hector G. Bladuell, Sarah Maloney, LEAD ATTORNEYS, Stephen McCoy Elliott, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Jonathan S. Needle, Linda Beth Alberty, Phillip Michael Truman, Rodney Patton, Scott Michael Marconda, LEAD ATTORNEYS, Alexander Kenneth Haas, David Hugh White, Jean Lin, Joseph Charles Folio, III, Julia A. Berman, Kathryn Celia Mason, Kristina Ann Wolfe, Mark A. Vetter, Nicole Newcomb Murley, Patrick D. Davis, Paul A. Dean, Scott Douglas Levin, Sean W. O'Donnell, Jr., Timothy Andrew Johnson, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Andrew I. Warden, Robert J. Prince, U.S. Department of Justice, Civil Division, Washington, DC; Norman Christopher Hardee, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For JAY HOOD, Army Brig. Gen. Commander, Joint Task Force-GTMO, Respondent: Hector G. Bladuell, Sarah Maloney, LEAD ATTORNEYS, Stephen McCoy Elliott, U.S. DEPARTMENT OF JUSTICE, Washington, DC; John P. Lohrer, Jonathan S. Needle, Linda Beth Alberty, Phillip Michael Truman, Rodney Patton, Scott Michael Marconda, Stephen P. Finn, LEAD ATTORNEYS, Alexander Kenneth Haas, David Hugh White, Jean Lin, [*6] Joseph Charles Folio, III, Julia A. Berman, Kathryn Celia Mason, Kristina Ann Wolfe, Mark A. Vetter, Nicole Newcomb Murley, Patrick D. Davis, Paul A. Dean, Scott Douglas Levin, Sean W. O'Donnell, Jr., Timothy Andrew Johnson, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Andrew I. Warden, Robert J. Prince, U.S. Department of Justice, Civil Division, Washington, DC; Norman Christopher Hardee, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For NELSON J. CANNON, Army Col., Commander, Camp Delta, all Respondents are sued in their official and personal capacities, Respondent: Hector G. Bladuell, Sarah Maloney, LEAD ATTORNEYS, Stephen McCoy Elliott, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Jonathan S. Needle, Linda Beth Alberty, Phillip Michael Truman, Rodney Patton, Scott Michael Marconda, Stephen P. Finn, LEAD ATTORNEYS, Alexander Kenneth Haas, David Hugh White, Jean Lin, Joseph Charles Folio, III, Julia A. Berman, Kathryn Celia Mason, Kristina Ann Wolfe, Mark A. Vetter, Nicole Newcomb Murley, Patrick D. Davis, Paul A. Dean, Scott Douglas Levin, Sean W. O'Donnell, Jr., Timothy Andrew Johnson, Terry Marcus Henry, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Andrew I. Warden, [*7] Robert J. Prince, U.S. Department of Justice, Civil Division, Washington, DC; Norman Christopher Hardee, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For ASSOCIATED PRESS, NEW YORK TIMES COMPANY, USA TODAY, Movants: Jeanette Melendez Bead, LEAD ATTORNEY, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC.

For CHARLES B. GITTINGS, JR., Amicus: Charles B. Gittings, Jr., LEAD ATTORNEY, Fort Bragg, CA.


MEMORANDUM OPINION

Mohamed Mohamed Hassan Odaini (ISN 681), a Yemeni citizen, was seized by Pakistani authorities on March 28, 2002 and has been held by the United States at the naval base detention facility in Guantanamo Bay, Cuba since June 2002. Odaini has filed a petition for a writ of habeas corpus contending that he is unlawfully detained. Respondents in this case, President Barack H. Obama and other high-level officials in the United States Government, argue that is lawfully detained and therefore should remain in U.S. custody. The parties filed cross-Odaini motions for judgment on the record and appeared before the Court for a hearing on the merits of Odaini's petition on May 10 and 11, 2010. Upon consideration of [*8] the motions and the evidence presented at the merits hearing, the Court concludes that respondents have failed to demonstrate that the detention of Odaini is lawful. Therefore, Odaini's petition shall be granted.

I. LEGAL STANDARDS

A. Scope of the Government's Detention Authority

The Authorization for Use of Military Force ("AUMF"), Pub. L. No. 107-40,115 Stat. 224 (2001), authorizes 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." Pub. L. 107-40, § 2(a), 115 Stat, at 224. The U.S. Supreme Court has held that the District Court for the District of Columbia has jurisdiction over petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay pursuant to the AUMF. See Boumediene v. Bush, 553 U.S. 723, , 128 S. Ct. 2229, 2274 (2008); Rasul v. Bush, 542 U.S. 466,483-84 (2004). The Supreme Court has provided "scant guidance," however, [*9] as to whom respondents may lawfully detain under the statute. Al-Bihani v. Obama, 590 F.3d 866, 870 (D.C. Cir. 2010) (noting that the Supreme Court has "consciously le[ft] the contours of the substantive and procedural law of detention open for lower courts to shape in a common law fashion" (citing Hamdi v. Rumsfeld, 542 U.S. 507, 522 n.l (2004) (plurality opinion of O'Connor, J.); Boumediene, 128 S. Ct. at 2276)).

In the absence of controlling law governing the question of by what standard to evaluate the lawfulness of the detention of the individuals held at Guantanamo Bay, the Court shall rely on the reasoning of other Judges of this Court who have thoroughly and thoughtfully addressed this issue. Accordingly, consistent with Judge Bates's ruling in Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009), the government may detain "those who are 'part of the 'Taliban or al Qaida forces.'" Id. at 69-70. 1 As Judge Walton ruled in Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009), such membership requires that the person in question "have some sort of 'structured' role in the 'hierarchy' of the enemy force." Id. at 68.

FOOTNOTES

1 "It is not in dispute that Al Qaeda is the organization responsible [*10] for September 11," Al-Bihani, 590 F.3d at 873, and is therefore among the entities to which the AUMF refers.


B. Burden of Proof

As stated in the Amended Case Management Order that governs this case, "[t]he government bears the burden of proving by a preponderance of the evidence that the petitioner's detention is lawful." In re Guantanamo Bay Litig., Misc. No. 08-442, CMO § II.A (Nov. 6, 2008). Accordingly, Odaini need not prove that he is unlawfully detained; rather, respondents must produce "evidence which as a whole shows that the fact sought to be proved," that Odaini was part of Al Qaeda, "is more probable than not." United States v. Mathis, 216 F.3d 18, 28 (D.C. Cir. 2000) (quoting United States v. Montague, 40 F.3d 1251, 1255 & n.2 (D.C. Cir. 1994)); see also Al-Bihani, 590 F.3d at 878 (rejecting Guantanamo Bay detainee's argument that application of the preponderance of the evidence standard in his habeas case was unconstitutional). If respondents do not meet this burden, the Court must grant Odaini's petition and order his release.

C. Evidentiary Issues

The Court notes at the outset two issues regarding the evidence in this case.

First, as explained in an order entered in this [*11] case on August 26, 2009 [# 606], the Court has permitted the admission of hearsay evidence but considers at this merits stage the accuracy, reliability, and credibility of all of the evidence presented to support the parties' arguments. This approach is consistent with a directive from the D.C. Circuit. See Al Bihani, 590 F.3d at 879 ("[T]he question a habeas court must ask when presented with hearsay is not whether it is admissible--it is always admissible--but what probative weight to ascribe to whatever indicia of reliability it exhibits."). The Court's assessment of the weight properly accorded to particular pieces of evidence appears throughout this memorandum opinion.

Second, the nature of the evidence before the Court is atypical of evidence usually presented in federal actions. Respondents have offered a variety of types of documents produced and used by government intelligence agencies that are not the direct statements of the individuals whose personal knowledge they reflect. The evidence in this case includes Form 40s ("FM40s"), Intelligence Information Reports ("IIRs"), Summary Interrogation Reports ("SIRs"), Memorandum for Records ("MFRs"), Field Documents ("FD-302s") [TEXT [*12] REDACTED BY THE COURT] FM40s are records of investigation activities, here witness interviews, conducted by the Criminal Investigation Task Force, a federal law enforcement agency. IIRs are Department of Defense documents for recording human intelligence. 2 SIRs [TEXT REDACTED BY THE COURT] An SIR differs from an IIR, which might contain the same substantive information, because an SIR [TEXT REDACTED BY THE COURT] MFRs are similar to SIRs. FD-302s are forms completed by FBI agents summarizing interviews. [TEXT REDACTED BY THE COURT] Joint Exhibit ("JE") 32 at 7 (declaration of a Defense Intelligence Agency employee describing, inter alia, types of intelligence reports). Neither party called any live witnesses.

FOOTNOTES

2 Human intelligence, or HUMINT, is "information derived from a person(s)." Joint Exhibit ("JE") 32 at 1.


II. ANALYSIS

A. The Evidence Before the Court Overwhelmingly Supports Odaini's Contention that He is Unlawfully Detained.

The Court begins by summarizing the evidence in the record directly related to Odaini's case. This evidence consists of statements Odaini has made while in detention about his time in Pakistan, statements other Guantanamo Bay detainees seized at the same time [*13] and location as Odaini have made while in U.S. custody, and respondents' records regarding Odaini's detention.

1. Odaini's Statements

From the first time he was interrogated in American captivity to the declaration he created for use in this litigation, Odaini has told the same story. He was bom in Taiz, Yemen 3 on September 20, 1983. JE 4 at 2 (SIR of interrogation at Bagram detention facility in Afghanistan on [TEXT REDACTED BY THE COURT] JE 73 P 1 (Declaration of Odaini dated January 29, 2009). 4 He is Muslim. JE 2 at 2 (FD-302 summarizing [TEXT REDACTED BY THE COURT] interrogation at Guantanamo Bay). His father, who works for the Yemeni Security Service, 5 has two wives and sixteen children. JE 2 at 2; JE 27 at 1 (FD-302 summarizing [TEXT REDACTED BY THE COURT] interrogation at Guantanamo Bay). 6 Odaini went to high school in his hometown. JE 2 at 1; JE 4 at 2. Odaini's father wanted Odaini to pursue religious studies in Pakistan after his graduation from high school in 2001. JE 2 at 2; JE 4 at 2; JE 47 at 4 (undated summary of Administrative Review Board ("ARB") proceedings for Odaini); JE 73 P 3. Odaini's father provided his son with a passport, a visa for travel to Pakistan, a [*14] plane ticket to Lahore, Pakistan via Karachi, Pakistan, and money to take with him on his journey. JE 2 at 1, 2; JE 4 at 2; JE 27 at 2; JE 41 at 2 (MFR summarizing [TEXT REDACTED BY THE COURT] interrogation); JE 46 at 2-3 (undated transcript of Odaini's Combatant Status Review Tribunal ("CSRT") hearing); JE 73 P 3. [TEXT REDACTED BY THE COURT]

FOOTNOTES

3 In some interviews, he provided his family's address and/or phone number in Taiz. See JE 2 at 1; JE 4 at 2.

4 The Court notes here for the purpose of emphasizing that the documents that serve as evidence in this case contain errors, whether of translation or reporting, that two of the interrogation reports in the record indicates that Odaini was bom in April rather than September. JE 2 at l; JE 29 at 1.

5 Neither party presented any evidence as to what the Yemeni Security Service is, although both accept, as suggested in some of Odaini's interviews, that it is an agency within the Yemeni government.

6 During at least one interview, Odaini provided his interrogator with the names, ages, and occupations or educational status of his six brothers, who ranged in age in 2002 from four to twenty-seven as well as the names of his nine sisters. See JE 2 at [*15] 2.


After arriving in Lahore, Odaini took a bus to Raiwand, Pakistan, the site of the headquarters of an organization called Jama'at Al Tabligh. JE 2 at 2; JE 4 at 2; JE 27 at 2. 7 In Raiwind, Jama'at Al Tabligh runs a center for the study of Islam, which thousands of students attend. JE 2 at 2. Odaini studied there for approximately five months, between June 2001 and November 2002. See JE 4 at 2; JE 27 at 2; JE 73 P 4. 8 At some point, a man there 9 suggested to Odaini that he could complete his studies more quickly in an advanced course at Salafia University in Faisalabad, Pakistan. JE 2 at 2; JE 4 at 2; JE 7 at 1 (FM40 summarizing [TEXT REDACTED BY THE COURT] interrogation at Guantanamo Bay).

FOOTNOTES

7 Jama'at Al Tabligh means "The Party of Missionary Work." JE 95 at 1 (Letter from Qamar-ul Huda, Senior Program Officer, Religion and Peacemaking Center of Innovation, United States Institute of Peace, to Darold Killmer and Mari Newman, Partners, Killmer, Lane & Newman, LLP (February 23, 2009)). Participation involves traveling with a small group of men to instruct Muslims in following Islamic practices. JE 96 at 1 (Letter from Barbara D. Metcalf, Professor of History at the University of Michigan [*16] to Darold Killmer and Mari Newman, Partners, Killmer, Lane & Newman, LLP (February 12, 2009)); see also JE 97 at 1 (Letter from Jamal J. Elisa, Professor of Religion, Amherst College to Baher Azmy, Seton Hall School of Law (December 13, 2004)) (explaining that the central principle of the movement "refers to the obligation of members of the Tablighi Jama'at to take time from their regular lives to travel and actively engage in spreading the message of the movement in the Muslim community"). An imam at the mosque Odaini attended in Taiz, who Odaini's father had known for many years, was a member of Jama'at Al Tabligh and directed Odaini to Raiwand. JE 4 at 2; JE 27 at 1.

8 At this school, Odaini "was taught the history of the Prophet Mohammed and Islam, how to conduct sermons, and the proper dress for conducting religious ceremonies." JE 2 at 2.

9 In one interrogation report, the author wrote that Odaini said the man, named Mohammed Ijaz, a Pakistani, "was on staff at the [Jama'at Al Tabligh] mosque." JE 2 at 2. In another, the interrogation report spells the name as "E'eghazi" and indicates that he was a Pakistani student. JE 4 at 2.


Odaini took this advice and, in November 2001, enrolled [*17] in Salafia University, where he was one of approximately two hundred students. JE 2 at 2; JE 7 at 1; JE 40 at 1; JE 46 at 2,4; JE 73 P 5. 10 He lived in a university dormitory. JE 2 at 2-3; JE 7 at 1; JE 44 at 1 (FM40 summarizing [TEXT REDACTED BY THE COURT] interrogation at Guantanamo Bay); JE 46 at 1. Another student, whose name was Emad, told Odaini he was welcome to visit Emad's off-campus home, which was a guesthouse. JE 2 at 3; JE 4 at 2; JE 7 at 1; JE 46 at 5; JE 47 at 3; JE 73 P8. (The Court will refer to this house as "Issa House," as it has been designated because a man named Issa, who Odaini did not know, JE 4 at 3, and who did not live at the house, see, e.g., JE 105 at 6, ran it, see, e.g., JE 5 at 1.) Odaini accepted this invitation on the evening of March 27, 2002, when he went to Issa House for dinner; after spending the evening talking to other Yemeni, Salafia University students who lived there about religion as well as "their past and where they lived in Yemen," he decided to spend the night. JE 2 at 3; JE 4 at 3; JE 7 at 1; JE 46 at 6; JE 73 P 9. 11 There were other people in the house, but Odaini did not know them. JE 2 at 3; JE 44 at 1.

FOOTNOTES

10 At Salafia, Odaini's "whole [*18] day consisted of memorizing the Koran and reciting what he learned for the instructors." JE 2 at 2.

11 In many intelligence reports quoted in this opinion, all or some text appears in the exhibit in all capital letters. For ease of reading, the Court will not reproduce quoted text in that manner.


At around 2:00 a.m., Pakistani police raided the house and seized all of its occupants. JE 2 at 3; JE 7 at 1; JE 731 P 10. [TEXT REDACTED BY THE COURT]

If this story is true, Odaini was not part of Al Qaeda or any other force associated with Al Qaeda and therefore without question is not lawfully detained.

2. Evidence Derived From Other Individuals Seized in the Raid of Issa House

The record before the Court includes intelligence reports summarizing interrogations of twelve other men seized in the raid of Issa House. These men made statements that corroborate various assertions reported in Odaini's interrogation summaries, suggesting that Odaini's explanation of events is true.

i. ISN 679

According to an interrogation summary, ISN 679 "stated that he attended Salafeyah University and studied the Koran." JE 33 at 1 (FM40 summarizing [TEXT REDACTED BY THE COURT] interrogation at Guantanamo Bay). At [*19] first ISN 679 "lived in the dormitory," but a man named Issa, who "was employed by Salafeyah University," "instructed [ISN 679] and four other students to go to the Issa House." Id. According to ISN 679's interrogation summary, Odaini was among the students to whom Issa gave this instruction. Id. ISN 679 "followed Issa's instructions and reported to the Issa House." Id. ISN 679 "stated that he did not observe or hear anyone [TEXT REDACTED BY THE COURT] preaching about the Jihad or recruiting for the Taliban and Al Qaeda" at the house. Id.

ISN 679 has been released from Guantanamo Bay and returned to Yemen. JE 118 at 1 (Declaration of Amie Draves, Paralegal, Covington & Burling LLP, reporting information she viewed on the New York Times website).

ii. ISN 680

[TEXT REDACTED BY THE COURT]

When asked about his authority to invite people to Issa House, ISN 680 said "Americans do not understand his culture and how common such an[] act is to [his] culture." JE 76 at 2 (SIR of [TEXT REDACTED BY THE COURT] interrogation of ISN 680). When asked "about the individuals [he] had arranged to stay at the house," Odaini 13 and ISN 688, ISN 680 "said that he had asked [Odaini] only to visit, although the [*20] night of the visit was the night of the raid" and that "the reason he had asked ISN 688 to stay at the house was because ISN 688 was homeless." Id.

[TEXT REDACTED BY THE COURT]

FOOTNOTES

13 ISN 680's name is Emad, JE 76 at 2, which, as noted, is the name by which Odaini identified the student he said invited him to Issa House.


iii. ISN 684

ISN 684 stated during an interrogation at Guantanamo Bay that he spent time at the Jama'at Al Tabligh center in Raiwind. JE 49 at 1 (FM40 of [TEXT REDACTED BY THE COURT] interrogation). He left, intending to go to Afghanistan, but was dissuaded from doing so and, after returning to Lahore, Pakistan, "met a Pakistani man who invited [ISN 684] to his home in Faisalabad." Id. After staying at the man's home for three days, ISN 684 told the man that he "wanted to attend a Tablique school in Multan, Pakistan," at which point ISN 684 was "sent by taxi to the Issa guesthouse located approximately one kilometer away." Id. ISN 684 "could not provide any information" about the other men seized in the raid of Issa House because "he kept to himself at the guesthouse studying the Koran and everyone else at the house did the same." Id.

iv. ISN 686

An interrogation summary describing [*21] the statements of ISN 686 reports that this detainee, a Yemeni, went to the "Raywarnd Religious Center [] in Lahore, Pakistan" to study Koran. JE 51 at 3-4 (IIR reporting information acquired from an FD-302 summarizing an interrogation of ISN 686 [TEXT REDACTED BY THE COURT]). A man at this center "told [ISN 686] about the Salafia Unviersity in Faisalabad" where "many Arabs [were] studying," so ISN 686 traveled to Faisalabad and met with "the sheik of Al Salafia College." Id. at 4. The sheik "told [ISN 686] he couldn't stay at the college because [ISN 686] did not want to take classes but only wanted to memorize the Koran," and informed ISN 686 of "a house with other Arabs who were also interested in only memorizing the Koran." Id. ISN 686 was introduced to students who lived at the house, "and he went with them to the house where they asked the owner, ((Issa)), if he could stay." Id. at 4-5. ISN 686 stayed at Issa House until he was seized in the March 28 raid. See id. at 5.

v. ISN 687

ISN 687 "traveled to Faisalabad, Pakistan on the advice of a male Palestinian by the name of Ali, who[m] [ISN 687] met at the Jamat Tabligh, located in Raywan, Pakistan." JE 26 at 1 (FM40 summarizing [*22] interrogation of ISN 687 in Guantanamo Bay on [TEXT REDACTED BY THE COURT]). ISN 687 stayed at Issa House "for approximately two months before being captured by the Pakistani Police." Id. He told his interrogator that "his main purpose for being at the house was to continue his medical treatment for his back." Id. 14 He "participated in reading the Koran with other occupants of the guesthouse." Id.

FOOTNOTES

14 The Court notes that ISN 687's assertion that he "was tak[ing] prescription medication that he had been prescribed by a doctor in Karachi, Pakistan, JE 26 at 1, [TEXT REDACTED BY THE COURT] ISN 691, whose circumstances are described below, also stated that he was sick while at Issa House and that the "medication [he] was taking in Pakistan … was in the house with [him]." JE 77 at 5.


ISN 687 identified Odaini as a "follower[] of the Jamat Tabligh." Id. 15

FOOTNOTES

15 In [TEXT REDACTED BY THE COURT] Odaini was interrogated for the purpose of collecting information about ISN 687. When shown a photograph of ISN 687, Odaini told his interrogator that "he first saw this individual in a jail in Pakistan" and "later learned that this individual had been at [Issa House] in Faisalabad on the same night as [Odaini] [*23] had stayed at the guesthouse. [Odaini] stated that he had only spent one night at the guesthouse, and as such, didn't know or recognize many of the other residents." JE 44 at 1. Odaini added that "as far as he knew, ISN 687 was not a student at Salifast University." Id.


ISN 687 has been released from Guantanamo Bay and returned to Saudi Arabia. JE 118 at 1.

vi. ISN 688

ISN 688 admitted in an interrogation that he knew several Al Qaeda operatives and spent a year and a half on the "front lines of Kabul." JE 18 at 1-2 (SIR of [TEXT REDACTED BY THE COURT] interrogation). He then explained that after being "dropped off at a mosque in Faisalabad where he stayed for three weeks," he met ISN 680, who "invited [ISN 688] to stay at the house where [ISN 680] was staying," which was Issa House. Id. at 2. ISN 688 moved to Issa House and was there for three weeks before being seized in the raid. Id. 16

FOOTNOTES

16 In testimony before the CSRT, ISN 688 described a quite different version of events, denying that he had ever been in Afghanistan. JE 105 at 7 (undated summary of transcript of CSRT proceedings). There too, however, he said he met "Ahmed Abdullah"--ISN 680, see JE 76 at 1--who brought him to Issa [*24] House. JE 105 at 3-4. ISN 688 said he "didn't have any relationships with anyone in that house" and "[the other students] were trying to inspire me and to do the religious things, like look at my religion because most of the students were studying the Koran and all things related to religious studies." Id at 4 (alteration in original). He also mentioned that he was not "in harmony" with the students at the house because he "used to use drugs and hashish and things like that, id.,[TEXT REDACTED BY THE COURT]


ISN 688 identified a photo of Odaini as "Mohammed Odani who was a student at Salafia University and present at the house upon [ISN 688']s arrival." Id.

vii. ISN 690

[TEXT REDACTED BY THE COURT] Koran student" who "arrived at the house the day that they were all arrested." JE 53 at 3 (MFR summarizing [TEXT REDACTED BY THE COURT] interrogation of ISN 690 at Guantanamo Bay).

viii. ISN 691

ISN 691 traveled from Yemen to Pakistan to learn about Islam. JE 77 at 2-3,16-17 (undated, unidentified document that appears to be a CSRT transcript). He took a tour of Salafia University but did not become a student there. JE 6 at 1, 2 (FM40 summarizing interrogation of ISN 691 at Guantanamo Bay on September [*25] 16, 2003); JE 77 at 6. He was directed to Issa House, which he believed "was the property of Jaamia Salafeyah University," by people at the university. JE 6 at 1. He became ill, so he "decided to stay" at Issa House "to get treated and get well." JE 77 at 9. He was there for approximately a month and a half before the March 28, 2002 raid. JE 6 at 1.

When shown a photograph of Odaini, ISN 691 stated that Odaini was an occupant of Issa House. JE 6 at 1. During his CSRT hearing, ISN 691 called Odaini as a witness, and ISN 691 told the CSRT that "[Odaini] came in the night we were arrested." JE 77 at 15.

ix. ISN 692

ISN 692 testified as a witness in Odaini's CSRT hearing. 18 See JE 46 at 8. ISN 692 told the CSRT he is from Yemen, and when he flew to Pakistan because he was interested in attending university, people he met suggested that he go to Issa House. Id. at 12-14. He stayed at Issa House, which "belonged to the university," for approximately three months. Id. at 12. Although he wanted to enroll at Salafia University, he did not become a student because, although staying at the house was free, he "ran out of money" necessary to "buy clothes and books." Id., at 11-12. ISN 692 made essentially [*26] the same assertions during a July 2003 interrogation at Guantanamo Bay. JE 52 at 1 (FM40 summarizing [TEXT REDACTED BY THE COURT] interrogation).

FOOTNOTES

18 The witness was identified by name, rather than ISN number, during the hearing, JE 46 at 8, but it is apparent from the record that Alah Ali Bin Ali is ISN 692, JE 52 at 1 (identifying ISN 692 as Ala'a Ali Bin All).


He told the CSRT that he met Odaini at Issa House and that Odaini, like "[t]he majority" of people at the house, "was a student at the Salafi University." JE 46 at 8-9,15. ISN 692 testified that Odaini "live[d] at" Issa House "[j]ust the day he was arrested," when he was visiting "4 or 5 friends he knew." Id. at 11.

ISN 692 has been released from Guantanamo Bay and returned to Yemen. JE 118 at 1.

x. ISN 695

ISN 695 admitted "he was a member of a group that opposed Qadaff's regime in Libya. "JE 5 at 1 (FM40 summarizing interrogation of ISN 695 at Guantanamo Bay [TEXT REDACTED BY THE COURT] ISN 695 reportedly stated that he traveled from Afghanistan to Pakistan and was ultimately directed to Issa House. Id. He was told "that he would be safe at this guesthouse because it belonged to Al Solafiya University and students from the university [*27] resided at the house." Id.

ISN 695 told an interrogator that "upon his arrival at the guesthouse … he was greeted by several of the students" and that "there were Islamic books located inside of the house, and the students mostly engaged in reading the Koran. [He] reported that he did not hear the students discussing the Taliban or Al Qaeda." Id.

ISN 695 identified Odaini from a photograph as "a student at Al Solafiya University" and "noted that [Odaini] arrived at the house approximately two days prior to them being captured by the Pakistani Police." Id. at 2.

Another Judge of this Court denied ISN 695's habeas petition on the basis of evidence about his activities before his arrival at Issa House. Government Exhibit 4 (transcript of hearing in Khalifh v. Obama, Civil Action No. 05-1189, dated April 20, 2010).

xi. ISN 702

The record of this case indicates that ISN 702 told his interrogators that he "could not communicate with anyone in [Issa H]ouse because he does not speak Arabic." JE 124 at 2 (interrogator notes summarizing a [TEXT REDACTED BY THE COURT] interrogation at Bagram). 19 This Court granted the petition for a writ of habeas corpus filed by ISN 702 on May 13, 2010. Al-Harbi [*28] v. Obama, Civil Action No. 05-2479 (D.D.C. May 13, 2010).

FOOTNOTES

19 Respondents attempt to paint ISN 702 as a member of Al Qaeda, citing an interrogation summary of this detainee in which he admits to attending Al Farouq, an Al Qaeda military training camp. JE 13 at 1. (This interrogation summary does not discuss Issa House.) It is not relevant to the outcome of this case whether ISN 702 attended Al Farouq, so the Court will make no determination regarding that issue. The Court notes, however, that it recently presided over the merits hearing for ISN 702 and is well aware that there is conflicting evidence in respondents' possession as to this point, none of which is part of this record.


xii. ISN 728

ISN 728 accompanied a friend to Afghanistan but wanted to go to Pakistan, so he traveled by vehicle and "was smuggled into the country." JE 58 at 1 (FD-302 summarizing [TEXT REDACTED BY THE COURT] interrogation of ISN 728 at Guantanamo Bay). ISN 728 "next made his way to Faisalabad, Pakistan," where he "stayed in a house owned by a Pakistani" after being sent there by three Yemeni men who were from his hometown who he had met in Faisalabad." Id. There were "approximately 14 other people" in the house, [*29] "some of whom were students and some who appeared sick." Id. While ISN 728 was staying at this house, "Pakistani authorities raided the home and arrested everyone inside. [ISN 728] stated he did not know why he was arrested." Id.

xiii. Conclusion

The consistency of these statements as they relate to Issa House and Odaini speaks for itself. To emphasize what is, to any reasonable reader, an obvious point, the Court notes that each of the men who identified Odaini stated that he was, as he asserts, a student.

3. Events Subsequent to Odaini's Seizure

There are several indications in the record that respondents themselves have repeatedly concluded that Odaini is not part of Al Qaeda.

After his initial seizure, Odaini was held in Lahore and then taken to Islamabad, Pakistan. JE 2 at 3; JE 73 PP 11-12. He was transported to Bagram, Afghanistan, then Kandahar, Afghanistan, and ultimately to Guantanamo Bay, Cuba. JE 2 at 3; JE 73 PP 13-15. He was told shortly after being taken into custody and upon arrival at Guantanamo Bay that he would be released within two weeks. JE 73 PP 11, 16. Odaini has been repeatedly interrogated while in U.S. custody, and has consistently told the story described in [*30] this memorandum opinion. He has also consistently, explicitly denied membership in Al Qaeda. See, e.g., JE 2 at 2 ("[Odaini] related he first heard about Al Queada while he was in Pakistan…. According to [Odaini] he did not like what Al Queada and Usama Bin Laden did on 11 September 01. During that time, [Odaini] said he was in Pakistan studying religion…. [Odaini] explained he has no personal knowledge of Al Queada, Usama Bin Laden, or the Taliban."); JE 44 at 1 ("[Odaini] denied ever being approached by a Taliban or Al Qaida recruiter. He also denied ever being pressured by [Salifast University] to travel to Afghanistan to fight.. .. [Odaini] also denied any knowledge concerning the possibility some of the men living at [Issa House] might have been aligned with, or sympathetic to the Taliban or Al Qaeda."); JE 46 at 5 (reporting that when asked if he was "ever a member of Al Qaida," Odaini replied "[n]ever" and that he "only heard of Al Qaida here in Guantanamo"); JE 47 at 2 (reporting that Odaini said he "[did]n't know anyone from al Qaida."); JE 42 at 1 ("[Odaini] denied any affiliation with Al Qaeda and did not believe the fourteen people captured with him were Al Qaeda").

In June [*31] 2002, just after Odaini's arrival at Guantanamo Bay, based on the assessment that Odaini "appeared to be telling the truth," an interrogator's report indicated: "Recommend [Odaini] be utilized to identify individuals at house in Faisalabad [TEXT REDACTED BY THE COURT] Pending [TEXT REDACTED BY THE COURT], [Odaini] should be considered for repatriation." JE 40 at 3 (MFR summarizing interrogation at Guantanamo Bay).

[TEXT REDACTED BY THE COURT]

In April 2004, nearly two years after Odaini's arrival at Guantanamo Bay, an employee of the Criminal Investigation Task Force ("CITF") of the Department of Defense reviewed five interrogations of Odaini and wrote that "[t]here is no information that indicates [he] has clear ties to mid or high level Taliban or that he is a member of Al Qaida." JE 101 at 2 (Memorandum by [TEXT REDACTED BY THE COURT] The employee reported that "CITF believes that further investigation is unlikely to produce new information relevant to this case" and, "in the absence of further information," he "recommend[ed] the release of [Odaini] under a conditional release agreement." Id. at 4.

A memorandum of the Joint Task Force Guantanamo of the Department of Defense dated June [*32] 2004 summarizes information collected about Odaini, indicates that "[t]here is no information to confirm Taliban or Al Qaeda ties on his part," and concludes that Odaini "may be transferred to another country or released [TEXT REDACTED BY THE COURT]" JE 102 at 2 (Regional Team Memo Assessment for purposes of evaluating whether to retain ISN [TEXT REDACTED BY THE COURT] or begin processing for transfer (June 5, 2004)).

In February 2007, four and a half years after Odaini's arrival at Guantanamo Bay, a Staff Judge Advocate for the Department of Defense, Office for the Administrative Review for the Detention of Enemy Combatants, sent an email to Odaini's counsel. JE 78 (Email sent by [TEXT REDACTED BY THE COURT] but signed by [TEXT REDACTED BY THE COURT] to, inter alia, David Remes (Feb. 22, 2007, 1:57 PM)). The email indicated that "[t]hrough either the Administrative Review Board (ARB) process or the process DOD had in place prior to ARBs, your client has been approved to leave Guantanamo, subject to the process for making appropriate diplomatic arrangements for his departure." Id. 20 Needless to say, Odaini was not released from Guantanamo Bay.

FOOTNOTES

20 The email also noted that "such a decision [*33] does not equate to a determination that your client is not an enemy combatant, nor is it a determination that he does not pose a threat to the United States or its allies." JE 78 at 1.


In June 2009, an attorney representing respondents in this case sent an email to Odaini's counsel indicating that "[t]he Guantanamo Review Task Force has completed its review of [Odaini]'s case" and "[a]s a result of that review, [Odaini] has been approved for transfer from Guantanamo Bay." JE 79 at 1 (Email from Robert J. Branman, Department of Justice, to Brian Foster, et al. (June 30, 2009,4:54 PM)). The email indicates that "the United States will take appropriate diplomatic steps, consistent with the national security and foreign policy interests of the United States, to facilitate [Odaini]'s transfer from Guantanamo Bay to an appropriate destination country." Id.

In response to the information in the June 2009 email, on September 9, 2009, the Court granted respondents' motion to stay this case [# 623]. In November 2009, the Ambassador of the Republic of Yemen to the United States signed a declaration indicating that "[t]he government of Yemen is willing to accept" Odaini, as well as other Yemenis [*34] held at Guantanamo Bay, "back to their home country of Yemen." JE 98 at 1 (Declaration of Abdulwahab Alhajjri). 21 On January 8, 2010, respondents informed the Court that, pursuant to a decision by President Obama, no Guantanamo detainees approved for transfer were to be sent to Yemen. On January 13, 2010, the Court lifted the stay of this case [# 743]; shortly thereafter, it set the date for a merits hearing regarding Odaini.

FOOTNOTES

21 The ambassador added that "it is the Yemeni government's position that, if any man named … has been cleared by the Inter-Agency Review Team established pursuant to President Obama's Executive Order, he should be transferred to Yemen immediately." JE 98 at 1-2.


B. Respondents Have Failed to Show that Odaini is Lawfully Detained.

Pursuant to an order the Court issued in advance of the merits hearing in this case, the parties identified the issues in dispute and structured their presentations to address each issue in turn during the hearing. Accordingly, respondents first argued that Odaini's stay in Issa House supports the conclusion that he is lawfully detained and second that his version of events is so implausible as to further support denial of the writ of habeas [*35] corpus. Both arguments fail.

1. Issue one: whether Odaini's stay at Issa House supports the conclusion that he is lawfully detained

Respondents insist that Odaini's presence at Issa House demonstrates that he is part of the Al Qaeda-affiliated network of a man named Abu Zubaydah. They vehemently argue that the fact that the occupants of Issa House allowed Odaini to come inside demonstrates that he was, like them, part of this network.

Respondents made a lengthy presentation, citing portions of Abu Zubaydah's diary, JE 9; JE 10; JE 60, as well as testimony about Abu Zubaydah by another man who apparently knew him in Afghanistan, JE 8; JE 66; JE 67, designed to show that Abu Zubaydah supported Al Qaeda in its efforts to fight the United States. In particular, Abu Zubaydah was allegedly involved in assisting men in traveling to Afghanistan to train for fighting before September 11, 2001 and in fleeing Afghanistan after the United States attacked that country. Abu Zubaydah feared for his own safety after the September 11 attacks, when the United States began searching for Al Qaeda operatives, so he did not want to be recognized by anyone who was not part of his network. Although Odaini has [*36] submitted some evidence calling into question Abu Zubaydah's importance and the strength of his connection to Al Qaeda, see JE 120; JE 121, the Court need not reach those questions. For purposes of this opinion, the Court will assume that respondents' allegations about Abu Zubaydah are true. These allegations do nothing to change the appropriate outcome in Odaini's case.

i. [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT] Id. P 20. Based on this statement, respondents argue that the Court should find that Odaini is part of Al Qaeda and therefore lawfully detained. The Court will not do so. It is standard practice to tell jurors evaluating expert testimony that if "they [find] that the opinion is not based on sufficient education or experience,… the reasons supporting the opinion are not sound, or … the opinion is outweighed by other evidence, [they may] completely or partially disregard the opinion." Criminal Jury Instructions for the District of Columbia (4th ed. 2008), Instruction 1.08. [TEXT REDACTED BY THE COURT]

a. Guesthouses in general

[TEXT REDACTED BY THE COURT] To the contrary, some of the men seized at Issa House stated directly that the house was not a tightly controlled [*37] environment. JE 5 at 1 (reporting that ISN 695 said that upon arrival at Issa House, "his handbag was not inspected, nor did anyone question where he came from" and that "the guesthouse did not have any specific rules as people were allowed to come and go as they pleased"); JE 49 at 1 (reporting that ISN 684 noted "[t]here were no restrictions imposed on visitors at the house").

b. [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]

c. [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]

d. [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]

e. [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT] some of the men seized at Issa House stated during interrogations that they had not met Abu Zubaydah. JE 33 at 1 (reporting that ISN 679 stated he did not recognize a photograph of Abu Zubaydah); JE 76 at 2 (reporting that when an interrogator asked ISN 680 during a 2006 interrogation about a connection between Issa and Abu Zubaydah, ISN 680 responded "that he has heard this name [Abu Zubaydah] many times, but only from interrogators"). 25 [TEXT REDACTED BY THE COURT]

FOOTNOTES

25 Odaini also denied ever having seen Abu Zubaydah. JE 7 at 1 ("[Odaini] was shown a photograph of Abu Zubaida. [*38] [Odaini] advised that he recognized the photograph because previous Interviewers showed it to him. [Odaini] stated that he heard of the name Abu Zubaida from previous American Interviewers.").


f. [TEXT REDACTED BY THE COURT]

[TEXT REDACTED BY THE COURT]29

FOOTNOTES

29 In an interrogation summary, [TEXT REDACTED BY THE COURT], ISN 703 repeated that he had spoken to "Dawoud," who "appeared to be running things in [the Faisalabad H]ouse," and that "Dawoud asked [ISN 703] a lot of questions." JE 16 at 3 (FM40 summarizing interrogation a Guantanamo Bay noting that "[ISN 703] did not appear to be deceptive"). Again, there is no indication that ISN 703 knew who this man was or that he had any connection to Al Qaeda.


iii. Conclusion

Respondents make additional, minor arguments in which they focus on certain statements from the interrogation summaries described above in an effort to incriminate Odaini. The Court acknowledges that there may have been Issa House residents whose activities before arriving at the house were questionable and perhaps render them detainable pursuant to the AUMF. But nothing in respondents' presentation demonstrates by a preponderance of the evidence, or anything close to it, that [*39] Odaini's presence at Issa House supports his detention.

2. Issue two: Whether Odaini's version of events present a plausible account of his activities

Remarkably, respondents find ways to argue that Odaini's statements to interrogators are so inconsistent and implausible as to call into serious question his truthfulness. They then make the leap that Odaini has been untruthful because he is covering up his involvement in Al Qaeda. As to each point respondents make and as to the general assertion that Odaini's statements are unreliable, the Court disagrees.

i. Odaini's visa

[TEXT REDACTED BY THE COURT] Odaini believed, or at least told his interrogators, that he had a three-month visa. JE 4 at 2; JE 27 at 2. During an interrogation [TEXT REDACTED BY THE COURT] he said "he was unconcerned about over[]staying his visa and stated renewing the visa was as simple as visiting any police station in Pakistan. Once he arrived in Pakistan, [Odaini] never renewed his visa in the nine months he was there." JE 27 at 2. When asked about his visa in 2004, Odaini "stated he didn't think about fixing it while he was there." JE 28 at 1 (FM40 summarizing [TEXT REDACTED BY THE COURT] interrogation). In 2006, [*40] when "confront[ed with] the discrepanc[y]" that "his Pakistan visa states his travel was [for] medical treatment," Odaini responded that "his father filled out the paper[]work and medical visa[]s are cheaper." JE 29 at 2.

Respondents argue that this visa and Odaini's statements about it demonstrate that he is a liar. It is only possible--and barely possible--to reach this conclusion if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence. Odaini has said repeatedly that his father arranged for his passport and visa, so anything questionable about those documents cannot be imputed to Odaini, who was a seventeen-year-old high school student at the time they were obtained. It seems likely that Odaini did not even know what the visa said, given how simple-minded it would be to lie about the number of months the visa lasted knowing respondents were [TEXT REDACTED BY THE COURT] in possession of it. Furthermore, even if Odaini was involved in the decision to obtain a visa for travel other than for the purpose of study, that the visa purports to be for medical travel [*41] is in no way an indication that Odaini was traveling to join a terrorist organization.

In their effort to make Odaini appear suspicious, respondents contended during the merits hearing that Odaini could have obtained a student visa had he truly been traveling for that purpose. First, respondents have submitted no evidence about the availability of Pakistani visas for students from Yemen; perhaps he could not have obtained such a visa. Second, Odaini has offered a logical explanation for having a medical visa. Although respondents argued at the hearing that Odaini's father could easily have afforded a more expensive type of visa, the Court simply will not draw any conclusions from respondents' conjecture that Odaini's father could have chosen to purchase a more costly (by how much, there is no indication) visa. Certainly Odaini's father was not concerned with keeping his son's paperwork in order so that his son would have a clean record upon being seized by Pakistani police working with the United States government.

In sum, nothing about Odaini's visa is evidence that he was in any way connected to Al Qaeda.

ii. Odaini's arrival at Issa House

Respondents rely on the reported statement of [*42] ISN 688 that Odaini was present at Issa House when ISN 688 arrived there weeks before the March 28, 2002 raid to demonstrate that Odaini's statements--here, in particular, the claim that he was not a resident of Issa House, but merely a visitor there--are false. See JE 18 at 2 (SIR of interrogation of ISN 688). The Court rejects this proposition. ISN 688 is the only man seized in the raid of Issa House who said that Odaini was there for any extended period of time. There is absolutely no basis to credit ISN 688's statement over Odaini's and the comments of several other detainees that are consistent with Odaini's assertions. See, e.g., JE 2 at 3 (Odaini's statement that he arrived at Issa House the night of the raid); JE 76 at 2 (ISN 680 's statement that Odaini came to Issa House the night of the raid); JE 53 at 3 (ISN 690's statement that Odaini came to Issa House the night of the raid); JE 77 at 15 (ISN 691 's statement that Odaini came to Issa House the night of the raid); JE 52 at 11 (ISN 692's statement that Odaini was only at Issa House the night of the raid). 31 It is a misrepresentation of the evidence before the Court to point only to ISN 688's statement, which is so clearly [*43] outweighed by the rest of the record. 32

FOOTNOTES

31 Odaini even responded to the allegation that he was at Issa House for longer than one night during [TEXT REDACTED BY THE COURT] interrogation, stating that "this is not true" and "the university could prove it." JE 29 at 2.

32 Furthermore, the length of Odaini's stay is irrelevant to the Court's ruling here. ISN 688, like all the other men who identified Odaini, said that Odaini was a student at Salafia University. JE 18 at 2. His interrogation simply does nothing to incriminate Odaini.


iii. Jama'at Al Tabligh

Respondents argue that there is an inculpatory inference to be made from Odaini's connection to Jama'at Al Tabligh. Despite admitting repeatedly that Jama'at Al Tabligh is a large, respected movement with the legitimate purpose of teaching about the Islamic faith, respondents argue that Odaini's statements about it are suspicious. 33 Respondents have presented some evidence to show that members of Al Qaeda used the organization as a cover for their true activities and purposes. JE 30 at 3-4 (IIR reporting that Usama bin Laden used Jama'at Al Tabligh preachers to spread his message and that Jama'at Al Tabligh activity was banned in Afghanistan). [*44] But they have no basis upon which to argue that Odaini was anything other than a religious student or that anything questionable took place at the center in Pakistan.

FOOTNOTES

33 At the merits hearing, respondents argued repeatedly that because Odaini's statements are unreliable, it might not even be true that Odaini went to the Jama'at Al Tabligh center. Respondents' argument is not convincing. They have not shown that Odaini is untruthful or unreliable. They have also offered no evidence whatsoever suggesting that Odaini was anywhere other than the center for his first several months in Pakistan.


iv. Inconsistencies in Odaini's statements

Respondents argue that inconsistencies in Odaini's statements demonstrate that he is untruthful. The Court again notes that respondents distort the evidence. For example, respondents point out as inconsistencies that, according to interrogation summaries, Odaini said on one occasion that the man who suggested he go to Salafia University was a student of the Jama'at Al Tabligh center, JE 4 at 2, and on another that he was an employee at the Jama'at Al Tabligh mosque, JE 2 at 2. They also note that Odaini's interrogation summaries indicate that he said he went [*45] to Issa House on a Thursday, JE 4 at 4, but the evening before the raid, March 27, 2002, was a Wednesday. These issues are minor and therefore insignificant. They may be the result of translation or reporting errors, or it may be that Odaini was uncertain of the identity of the man who told him about Salafia University and mistaken about the day of the week on which he was seized. The suggestion that these small discrepancies give rise to an inference that Odaini was lying to hide that he was fighting for Al Qaeda is simply unreasonable.

v. Cover story

Respondents also argue that Odaini's assertion that he was a student is a cover story the occupants of Issa House had agreed to use. Only by refusing to deviate from a predetermined conclusion could this explanation of consistent statements from so many men over so many years seem at all reasonable. This theory ignores the fact that several occupants of the house did not claim to be students but nevertheless said that Odaini was a student. See JE 18 at 2; JE 53 at 3; JE 46 at 9,15. Furthermore, to find that Odaini's version of events is a cover story in the complete absence of information suggesting that he was anything other than a student [*46] would render meaningless the principle of law that places the burden of proof on respondents rather than Odaini.

C. Conclusion

Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda. Consequently, his detention is not authorized by the AUMF. The Court therefore emphatically concludes that Odaini's motion must be granted.

III. CONCLUSION

For the foregoing reasons, Odaini's petition for a writ of habeas corpus shall be granted. An appropriate order accompanies this memorandum opinion.

Henry H. Kennedy, Jr.

United States District Judge

May 26, 2010

solutions
Site Admin
Posts: 212
Joined: Fri Jul 13, 2007 8:38 pm

Chasing The Rabbit Re Reversal On Releasing Yemenis to Yemen

Post by solutions »

.
The PBS Newshour With Jim Lehrer (aka, The MacNeil-Lehrer Report)
January 6, 2010

Title: Yemen’s Instability Muddles Plan To Close Guantanamo

Summary: “President Obama has made closing Guantanamo Bay (sic) a top priority. Yet as Margaret Warner reports, that effort has been complicated by the failed plot of an al-Qaida group in Yemen to blow up a U.S. airliner on Christmas.”


**************************************************************
RL Editorial Notes:

Re the “sic” note in the “Summary” above, and the lack thereof at another point – (1) Guantanamo Bay is a U.S. Naval Base comprising U.S. territory on the main Cuban Island and President Obama has never promised to close the U.S. Naval Base and return it to Cuba (only to close the terrorist-detention facility on the base); (2) there was no “sic” after “al-Qaida” because it is still an acceptable alternative spelling (NB: it was the most-common spelling at the time of 9/11, but “al Qaeda” has become more common since then).

The following transcript is a bit confusing because it makes President Obama appear to be the first member of Margaret Warner’s panel and Rep. Pete Hoekstra to have spoken up later in the program. President Obama was actually appearing in news footage that was shown at the beginning of the PBS Newshour segment and Rep. Hoekstra was also appearing in news footage.
**************************************************************


TRANSCRIPT FROM 1/6/2010

MARGARET WARNER: Ever since taking office, President Obama has worked to honor his pledge to shut the prison at Guantanamo Bay, Cuba. But his January 2010 deadline has already slipped. Now the apparent connection between the suspect in the Christmas Day plot and an al-Qaida offshoot in Yemen has raised a new hurdle.

Nearly 100 Yemenis are still at Guantanamo, about half the total inmate population remaining there. Nearly half of those Yemenis have been cleared for release. But that was before yesterday's announcement from the president.

U.S. PRESIDENT BARACK OBAMA: Given the unsettled situation, I have spoken to the attorney general and we've agreed that we will not be transferring additional detainees back to Yemen at this time.

MARGARET WARNER: For retired U.S. Navy Commander Kirk Lippold, the decision came not a moment too soon.

COMMANDER KIRK LIPPOLD (RET.), U.S. Navy: I'm actually very pleased that the administration chose to do that. I think it shows that they recognize that the Yemeni government right now is having a very difficult time in maintaining control throughout the country.

MARGARET WARNER: Lippold was skipper of the USS Cole in October of 2000 when it was attacked by al-Qaida suicide bombers off the coast of Yemen. Seventeen American sailors were killed.

COMMANDER KIRK LIPPOLD: It would be unwise for us to return people back to that country, if in fact they have the potential to return back to al-Qaida and begin to fight on the battlefield.

MARGARET WARNER: In fact, only some 20 Yemenis have been released to date from Guantanamo. And Benjamin Wittes at the Brookings Institution in Washington says there's a reason for that.

BENJAMIN WITTES, Brookings Institution: The problem is, in short, that you have a group of people, a very large percentage of the total population of Guantanamo, many of whom are, from the U.S. government's point of view, pretty scary people, and a country that is very badly positioned to manage the risks that they pose in absorbing them.

MARGARET WARNER: And that, says Wittes, has meant that Yemenis have always been treated differently from others set for release at Guantanamo.

BENJAMIN WITTES: In addition to the scary Yemenis, there are a group of people there who, had they been Saudi, had they been from, you know, some other countries, would have gone home a long time ago.

MARGARET WARNER: Indeed, Yemen is a country of 22 million with a fragile government, facing secession in the south and rebellion in the north, not to mention crippling poverty.

It's proven fertile ground for al-Qaida in the Arabian Peninsula, the group claiming responsibility for the Christmas Day bombing attempt. Only one released Yemeni has returned to the battlefield, but many former Saudi Guantanamo detainees are now in al-Qaida's leadership there.

BENJAMIN WITTES: They went to Yemen for a reason. And the reason is that the long arm of the Saudi state and the long arm of any state has a lot more trouble reaching you in Yemen than it does in other places.

MARGARET WARNER: Washington attorney George Clarke represents two Yemenis at Guantanamo. He says decisions on who gets released should continue to be made on a case-by-case basis.

GEORGE CLARKE: I think both the Bush administration and the Obama administration tried to release people that they thought were not dangerous to the United States and -- or its interests. And I think that that analysis should continue into the future, as opposed to sort of some sort of blanket.

MARGARET WARNER: But, after what President Obama said Tuesday, Clarke says it isn't clear what happens next for one of his clients who had been slated for release.

GEORGE CLARKE: I don't -- I honestly don't know what happens to him. I mean, I think that's part of the problem. We know that there's a group of people who the Obama administration wants to move back to Yemen. And I think, with -- clearly, with this blanket prohibition, they're not going to be going anywhere for a while.

MARGARET WARNER: It's not just the fate of individual inmates that hangs in the balance. The president's temporary ban doesn't yet resolve larger politically charged questions that he and Congress have to wrestle with.

Republicans have argued the president was wrong from the start on Guantanamo. In a recent letter, Congressman Pete Hoekstra, ranking Republican on the House Intelligence Committee, said the Christmas Day incident requires Mr. Obama to abandon his -- quote -- "brazen and naive pledge to close Guantanamo Bay."

Hoekstra followed up Sunday on ABC's "This Week."

REP. PETE HOEKSTRA, R-Mich.: The core group of al-Qaida on the Arabian Peninsula is formed by former Gitmo detainees. These are people that were held in Gitmo, have been returned, and have now gone back to the battlefield.

MARGARET WARNER: Democratic Congresswoman Jane Harman, chairman of a House subcommittee on terrorism risk assessment, takes issue with that.

REP. JANE HARMAN, D-Calif.: It's way too simplistic. It is true that there was a connection between the Christmas Day bomber and Yemen. But Yemen is not the whole ball game. And I think that Guantanamo affords a recruiting tool that is unique worldwide to al-Qaida and other bad guys.

MARGARET WARNER: Harman does support the temporary freeze on repatriating Yemeni detainees, but says indefinitely holding them is not a permanent solution to this thorny problem.

One of the alternatives is to transfer the Yemeni prisoners, even those cleared for release, to a federal facility in Thomson, Illinois. The prison was chosen recently by the Obama administration to take detainees who are being prosecuted or can't be released elsewhere.

But that prospect remains murky, since it's unclear when or if Congress will fund the security upgrades needed at the prison.

REP. JANE HARMAN: I think the administration is sorting that out right now. This wrinkle about Yemen is fairly recent, and it is very serious. But we're going to have find -- they're going to have to find another answer.

MARGARET WARNER: Delay in finding an answer could pose another danger, warns Benjamin Wittes, that the courts could order the government to free those cleared for release in the U.S., if no other country will take them.

BENJAMIN WITTES: You could imagine a situation in which the government has a choice between Yemen and Cleveland. And that's, you know, a very unappealing choice from the government's point of view.

MARGARET WARNER: It could be a politically hazardous choice as well, given the passions already aroused by talk of releasing any Gitmo detainees anywhere here at home.

solutions
Site Admin
Posts: 212
Joined: Fri Jul 13, 2007 8:38 pm

New Executive Order On Guantanamo

Post by solutions »

.
New Executive Order On Guantanamo

Reading Liberally Editorial Note =

President Obama’s new Executive Order issued on Monday (3/7/2011) reversed his two-year-old Executive Order halting military tribunals at Guantanamo Bay.

Implied is that the Guantanamo Bay prison for terrorists will never be closed because the President admits that at least 48 terrorists will never be tried or released – and there is nothing else that can be done than continue to hold them at Guantanamo Bay. For such detainees, there will be periodic review similar to what they received during the Bush years.

There was also no mention of what will be done with Khalid Sheikh Muhammed, mastermind of 9/11.

Rather than post the new Executive Order itself (which would be hard to understand by itself), the following NY Times article is offered.

*****************************************
Obama Clears Way for Guantánamo Trials
By Scott Shane and Mark Landler
New York Times - March 7, 2011

WASHINGTON — President Obama on Monday reversed his two-year-old order halting new military charges against detainees at Guantánamo Bay, Cuba, permitting military trials to resume with revamped procedures but implicitly admitting the failure of his pledge to close the prison camp.

Mr. Obama said in a statement that he remained committed to closing Guantánamo someday and to charging some terrorism suspects in civilian criminal courts. But Congress has blocked the transfer of prisoners from Guantánamo to the United States for trial, frustrating the administration’s plan to hold civilian trials for Khalid Shaikh Mohammed, the self-professed chief plotter of the Sept. 11 attacks, and others accused of terrorism.

Officials declined to say whether Mr. Mohammed would be scheduled for a military commission or would await a trial in federal court if Congress lifts its prohibition.

Separately, for detainees who will not get trials, Mr. Obama set out new rules in an executive order Monday requiring a review of their status within a year and every three years after that to determine whether they remain a threat, should be scheduled for a military trial or should be released. The order also requires compliance with the Geneva Conventions and the international treaty that bans torture and inhumane treatment.

Mr. Obama said in a statement that from the beginning of his administration, “the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values.” He said the new procedures, which had been forecast in news reports, “broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees.”

Administration officials declined to discuss individual cases, but one senior official said he expected new charges to be brought against detainees within days or weeks. A second official said the administration was committed to bringing “9/11 plotters to justice” but did not explain how that might occur. Among detainees believed most likely to face a military commission soon is Abd al-Rahim al-Nashiri, a Saudi accused of planning the bombing of the American destroyer Cole in Yemen in 2000. He was subjected to waterboarding, which could open the way to assertions by the defense that he was tortured, complicating any trial.

Civil liberties advocates, who have long been critical of Guantánamo, expressed disappointment that the military system remained in place more than two years after Mr. Obama took office.

“This is a step down the road toward institutionalizing a preventive-detention regime,” said Elisa Massimino, president of Human Rights First. “People in the Mideast are looking to establish new rules for their own societies, and this sends a mixed message at best.”

Still, some lawyers for detainees said the executive order might speed the release of men imprisoned for years without trial, either after a review, a trial or a plea agreement.

“If this leads to a meaningful process and a conclusion that a person should be released, that would be an improvement,” said Joseph Margulies, a law professor at Northwestern who has represented Guantánamo prisoners and written a book on the detention camp.

Mr. Obama had suggested that he might go to Congress for a law governing indefinite detention. Human rights groups were relieved that he instead issued an executive order, which is easier to undo in the future. They were also pleased that Mr. Obama limited his order to 172 prisoners currently held at Guantánamo rather than extending it to any future detainees.

Karen J. Greenberg, director of the Center on Law and Security at New York University, said she was pleased that the executive order left open the possibility that prisoners might be transferred to the United States at some point and that the review panels would include representatives from the Departments of State, Justice and Homeland Security as well as Defense and the director of national intelligence.

But Ms. Greenberg added that the order “does nothing to address the underlying moral and philosophical issues at stake at Guantánamo.”

Republican lawmakers criticized the president for not working with Congress on a law that would govern the prosecution and detention of terrorism suspects, even as they applauded him for rescinding his ban on military commissions.

“I am disappointed the White House chose to put another Band-Aid on this problem, rather than working with Congress to develop the comprehensive and long-term legislative framework we need,” said Representative Mike Rogers, a Michigan Republican and chairman of the House Intelligence Committee.

But several Democrats rallied behind the White House, saying the executive order would guarantee timely trials for the remaining detainees, thus avoiding the risk that courts would just order their release.

“The executive order announced today helps clear the way to charge and try our enemies,” said Representative Adam Smith of Washington, the ranking Democrat on the House Armed Services Committee.

Administration officials insisted that Mr. Obama had not retreated from his pledge to close Guantánamo Bay, despite difficulties in transferring prisoners or trying them in federal courts. Detainees have been released to their home countries and to other countries as varied as Germany and Palau, and a senior official said that process would continue.

The new procedures for military commissions guarantee detainees access to a legal representative and to a broader range of classified information, which the detainee’s representative can use to argue his client’s case before the review board.

The administration also said it would ask for Senate approval to sign on to an additional protocol of the Geneva Conventions governing humane treatment and fair trials for prisoners held in wartime. Secretary of State Hillary Rodham Clinton said the step would “reaffirm the determination of the United States to treat humanely all detainees in our custody.”

Since the beginning of the Obama administration, the Defense Department has transferred 67 detainees from Guantánamo Bay to 24 destinations, including the transfer of 40 detainees to third countries, according to government figures. But the active status of Al Qaeda’s affiliate in Yemen, the home of the largest remaining group of detainees, has dissuaded the administration from sending prisoners there. And most countries have agreed to accept only tiny numbers of Guantánamo detainees.

Today’s total of 172 detainees is down from 242 when Mr. Obama entered office. About 500 detainees were released by the Bush administration.

johnkarls
Posts: 2034
Joined: Fri Jun 29, 2007 8:43 pm

Guantanamo vs. (1) High Seas, or (2) Release to Iran

Post by johnkarls »

.
Since the proposed topic of “Bagram vs. Guantanamo & Abu Grabi” expired after receiving no votes at our meetings from July - December 2011, it seemed appropriate to “complete the record” with two additional imbroglios that occurred during 2011.

Editorial Note = Iraq, of course, was the location of America’s famous (or infamous) “Abu Graib” prison for terrorists. Bagram, of course, is the American air base in Afghanistan that is used for imprisoning enemy combatants apprehended there.

*****
NY TIMES 6/16/2011 LEAD EDITORIAL RE 2-MONTH TERRORIST DETENTION IN A U.S. NAVAL VESSEL FOR INTERROGATION ON THE HIGH SEAS

The NY Times 6/16/2011 Lead Editorial (whose text appears below) addresses the case of Ahmed Abdulkadir Warsame who was captured by American forces in international waters and interrogated for 2 months aboard a U.S. Navy vessel which remained in international waters.

Approving his secret interrogation at sea gave the Obama Administration, according to the NY Times, a convenient alternative to sending him to Guantanamo. His interrogation completed on the high seas after two months, the Obama Administration was in the process, according to the NY Times, of bringing him to the U.S. for a civilian trial.

*****
WALL ST. JOURNAL 12/7/2011 OPED RE HEZBOLLAH TERRORIST CAPTURED BY U.S. FORCES IN IRAQ AFTER MASTER-MINDING THE KILLING OF 5 U.S. SOLDIERS AND NOW DESTINED FOR A HERO’S WELCOME IN IRAN

The WSJ 12/7/2011 OpEd (whose text appears below) addresses the case of Ali Musa Daqduq who was captured by U.S. forces in Iraq in March 2007 after masterminding the killing of 5 U.S. soldiers in Karbala on 1/20/2007.

For two years the Obama Administration faced opposition from U.S. Senators of both parties to bringing Daqduq to the U.S. for either a civilian trial or military tribunal.

Rather than taking him to Guantanamo for a military tribunal as recommended by many of the grand-standing Senators, the Obama Administration decided to hand over Daqduq to the Iraqi Government as the last U.S. soldiers depart Iraq -- even though the “track record” of releasing such Iranian-directed terrorists to the Iraqi Government means they immediately re-appear in Iran to a hero’s welcome.

Although subsequent to the WSJ OpEd, a provision requiring the Obama Administration to take Daqduq to Guantanamo for a military tribunal was contained in the late-Dec/2011 House-passed 12-month extension of the payroll tax cuts and unemployment benefits that died when the Senate went home for the holidays requiring the House to pass the Senate’s 2-month extensions which, inter alia, did NOT contain the Daqduq provision.

*********************
TEXT OF THE NY TIMES 6/16/2011 LEAD EDITORIAL RE OBAMA ADMINISTRATION’S 2-MONTH INTERROGATION OF A TERRORIST IN AN AMERICAN NAVAL VESSEL ON THE HIGH SEAS RATHER THAN TAKING HIM TO GUANTANAMO

New York Times – Lead Editorial – Sunday 6/16/2011

Terrorism and the Law

The prosecution of a Somali national accused of supporting Al Qaeda is now headed for trial in a federal court, where it belonged all along. The Obama administration finally made the right decision over the usual self-serving objections of grandstanding senators from both parties. But it is troubling that the administration delayed this step for almost two months.

During those months, Ahmed Abdulkadir Warsame, who was seized by American forces in international waters, was secretly held in extralegal detention on a United States naval vessel. There, he was interrogated without being read the Miranda rights that apply to all federal criminal prosecutions. After weeks of military investigation, a separate team of law enforcement officials concluded that he was not a legitimate candidate for military detention and trial. They read him his rights. He promptly waived them and continued cooperating with his captors, but it may prove hard to disentangle those later statements, fully admissible in court, from his earlier, inadmissible ones.

Approving his secret interrogation at sea gave the administration a convenient alternative to sending him to Guantánamo Bay, Cuba. That would have made trial in a civilian court nearly impossible, because Congress has inexcusably hamstrung the justice system by barring the use of funds to transfer prisoners from the detention camp.

Any suggestion that moving Mr. Warsame to civilian court shows weakness against terrorism is absurd. Had Mr. Warsame been brought before a military commission, prosecutors would have had to prove that he was either an actual member of Al Qaeda or was personally involved in plotting attacks on the United States. But Mr. Warsame is not accused of any actual terrorist acts, just “material support” of Al Qaeda and its alleged Somali affiliate, the Shabab. In a civilian court, proving material support for the Shabab alone would be enough to convict. Conviction on all counts of material support carries a possible life sentence.

So Mr. Warsame’s trial can proceed, but at an unfortunate cost. President Obama has created yet another parallel system of unlimited detention and interrogation without rights outside the constitutional norms that served us well for more than two centuries before the Bush administration carelessly and needlessly tossed them aside for terrorism cases after Sept. 11, 2001.

The Obama administration justifies its handling of the Warsame case under the laws of war. But Mr. Warsame was not picked up on any recognized battlefield. The administration claims continuing authority for military detention, interrogation and trial. This applies not just to battlefield detentions, where it is often appropriate, but to detentions anywhere, and not just to personal involvement in violent attacks, but to a broad range of offenses directly or indirectly related to terrorism. That is far too broad a claim.

Two important goals must guide terrorist-related cases — eliciting information to thwart future plots and punishing the guilty. The overwhelming evidence from the past decade is that both are most reliably served by lawful interrogation and prosecution in civilian courts.

Hundreds of accused terrorists have been convicted in civilian courts since 9/11. Only six — none of them major Qaeda figures — have been convicted in the military commissions carelessly confected by the Bush administration and renewed, with significantly stricter rules and procedures, by the Obama administration.

Mr. Obama came to office vowing to stop these costly travesties of justice that so damaged America’s international reputation. But he has steadily retreated, sometimes in the face of political opposition, sometimes on his own. Now he is drifting toward establishing his own system of extralegal detention and tainted questioning. It is time to stop that drift and return to a constitutional system of law enforcement.

*********************
TEXT OF THE WSJ 12/7/2011 OPED RE HEZBOLLAH KILLER OF 5 AMERICANS IN IRAQ AND HIS RELEASE BY THE OBAMA ADMINISTRATION TO AN IRANIAN HERO’S WELCOME RATHER THAN TAKING HIM TO GUANTANAMO

Wall Street Journal – OpEd – December 7, 2011

Obama and the Hezbollah Terrorist
By David B. Rivkin, Jr., and Charles D. Stimson

***********
Reading Liberally Editorial Notes –

David Rivkin served in the Justice Department under President Reagan and the First President Bush. He represents, inter alia, the 27 states whose lawsuit is currently before the U.S. Supreme Court on the issue of the Constitutionality of Obamacare.

Charles Stimson was the Defense Department Deputy Assistant Secretary for Detainee Affairs under the Second President Bush.
************

Call it the triumph of ideology over national interest and honor. Having dithered for nearly three years, the Obama administration has only a few weeks to bring to justice a Hezbollah terrorist who slaughtered five U.S. soldiers in Iraq in 2007. Unfortunately, it appears more likely that Ali Musa Daqduq will instead be transferred to Iran, to a hero’s welcome.

In the early evening of Jan. 20, 2007, in the city of Karbala, south of Baghdad, five black SUV’s approached the location of a regular meeting between U.S. and Iraqi military officers. Inside the vehicles, which mimicked U.S. transports (to avoid heightened security), were a dozen individuals dressed in U.S. military uniforms and bearing U.S. weapons. Their drivers spoke English.

Upon reaching their target, the occupants opened fire on the Americans. One U.S. soldier was killed on the spot. Four others were kidnapped, tortured and executed.

The mastermind of the brutal attack? Ali Musa Daqduq, a Lebanese national and Hezbollah commander. U.S. forces captured him in March 2007, and, in interrogation, he allegedly provided a wealth of information on Iran’s role in fomenting, training and arming Iraqi insurgents of all stripes.

With U.S. troops set to exit Iraq at the end of December, all detainees in American custody there have been transferred to Iraqi custody except for Daqduq. He is set to be turned over in a matter of weeks. Based on past experience with released detainees who were in Iranian employ, U.S. officials know that Daqduq will promptly re-emerge in Iran, shaking hands with leading dignitaries and leading parades, before rejoining his Hezbollah colleagues.

This outcome would be an insult to the American servicemen who have lost many comrades to insurgents such as Daqduq, who consistently failed to comply with the laws of war. Indeed, the Iraq is the first war in modern history where the U.S. – having complied with the laws of war by promptly prosecuting American troops believed to have violated those laws – did not bring to justice a single one of the hundreds of captured enemy combatants who have killed Iraqi civilians, American soldiers and contractors. Impunity for war criminals debases the laws of war, violates are international legal obligations, and is inconsistent with American values.

We have already failed to stop Iran’s nuclear-weapons program. We have also failed to punish Tehran for facilitating the death of American soldiers, or for plotting to assassinate the Saudi ambassador to Washington. Allowing Daqduq to slip through U.S. hands would further reinforce the impression of American impotence. That will have serious repercussions, measured in diplomatic defeats and lost lives.

There is an obvious solution: Transfer Daqduq from Iraq to Guantanamo Bay to be tried by a military commission there. But this is where the Obama administration’s rigid ideology comes into play – beginning with flawed, self-defeating legalistic arguments.

A successful prosecution of Daqduq would be relatively easy. He killed American soldiers and, as an unprivileged belligerent, has no combatant immunity. Yet the administration purports to be troubled by our lack of an extradition treaty with Iraq. It also points out that the Iraqis have refused to accord the U.S. legal custody of Daqduq, although the U.S. has him in physical custody. The Iraqis, of course, are being pressured by the Iranians not to accommodate this legal-custody request.

Yet we don’t need an extradition treaty with Iraq to transfer Daqduq, a Lebanese citizen captured by American forces in a war zone. Since his capture occurred while the U.S. and other coalition members were the occupying power in Iraq, there is ample basis in existing international law for the American exercise of legal jurisdiction over him.

A more serious obstacle is the administration’s policy of eschewing military tribunals. Earlier this year, the administration considered bringing Daqduq to the U.S. to face trial in a civilian court. In response, six Republican senators wrote President Obama, warning against trying Daqduq in a civilian court, and urging the president to refer him to a military commission.

The administration briefly flirted with the idea of a military commission, perhaps in Charleston, SC, or at Fort Leavenworth, KS. That idea seems to have been dropped after a Nov. 8 Senate Judiciary Committee hearing where Republican Sen. Lindsay Graham told Attorney General Eric Holder that if the administration were to bring Daqduq to the U.S. for a civilian or military trial, “all hell would break loose.”

The administration believes that brining anyone new, even high-value detainees, to Guantanamo is inconsistent with the goal of eventually closing the facility. This proposition is absurd, and not only because that facility remains vital and relevant to this day. It raises the question of whether this administration’s detention policy is actually shaped by a crass political calculus of not antagonizing its liberal base in advance of what promises to be a difficult 2012 election.

The administration should press the Maliki government in Baghdad harder to allow the U.S. to maintain custody of Daqduq following the withdrawal of U.S. forces from Iraq. If the Iraqis still refuse, the administration should unilaterally transfer Daqduq to Guantanamo to face justice.

While the Maliki government may protest publicly, it will rejoice privately, since Daqduq’s rendition would demonstrate Washington’s resolve in the face of Tehran’s pressure. Allowing him to go unpunished is both inexcusable and dangerous.

Post Reply

Return to “Section 3 – Possible Topics for Future Meetings”

Who is online

Users browsing this forum: No registered users and 2 guests