Judicial Activity Concerning
Enemy Combatant Detainees:
Major Court Rulings
Jennifer K. Elsea
Legislative Attorney
Michael John Garcia
Legislative Attorney
April 21, 2014
Congressional Research Service
7-5700
www.crs.gov
R41156
Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
Summary
As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained
numerous persons believed to have been part of or associated with enemy forces. Over the years,
federal courts have considered a multitude of petitions by or on behalf of suspected belligerents
challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive
rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many
others remain unresolved, with some the subject of ongoing litigation.
This report discusses major judicial opinions concerning suspected enemy belligerents detained in
the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions
concerning enemy combatants. It also discusses notable circuit court opinions addressing issues
of ongoing relevance. In particular, it summarizes notable decisions which have (1) addressed
whether the Executive may lawfully detain only persons who are “part of” Al Qaeda, the Taliban,
and affiliated groups, or also those who provide support to such entities in their hostilities against
the United States and its allies; (2) adopted a functional approach for assessing whether a person
is “part of” Al Qaeda; (3) decided that a preponderance of evidence standard is appropriate for
detainee habeas cases, but suggested that a lower standard might be constitutionally permissible,
and instructed courts to assess the cumulative weight of evidence rather than each piece of
evidence in isolation; (4) determined that Guantanamo detainees have a limited right to challenge
their proposed transfer to foreign custody, but denied courts the authority to order detainees
released into the United States; and (5) held that the constitutional writ of habeas does not extend
to noncitizen detainees held at U.S.-operated facilities in Afghanistan. Finally, the report
discusses a few criminal cases involving persons who were either involved in the 9/11 attacks or
were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and
associated entities, as well as reviews of military commission cases in federal appellate courts.
For over a decade, the primary legal authority governing the detention of enemy belligerents in
the conflict with Al Qaeda was the 2001 Authorization for Use of Military Force (“AUMF,” P.L.
107-40). In December 2011, Congress passed the National Defense Authorization Act for FY2012
(“2012 NDAA,” P.L. 112-81), which contains a provision that is largely intended to codify the
current understanding of the detention authority conferred by the AUMF, as has been interpreted
and applied by the Executive and the D.C. Circuit. The full implications of the 2012 NDAA upon
wartime detention jurisprudence remain to be seen. In any event, the act does not address many of
the legal issues involving wartime detention that have not been squarely resolved by the Supreme
Court. Among other things, these unresolved issues include the precise scope of the Executive’s
wartime detention authority, including the circumstances in which U.S. citizens may be detained;
the degree to which noncitizens (or in one case, U.S. citizens) held abroad are entitled to
protections under the Constitution; the authority of federal habeas courts to compel the release
into the United States of detainees determined to be unlawfully held; and the ability of detainees
to receive advance notice and to challenge their proposed transfer to foreign custody.
Several rulings addressed in this report are discussed in greater detail in other CRS products,
including CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in
Federal Court, by Jennifer K. Elsea and Michael John Garcia; CRS Report RL34536,
Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus, by Michael John Garcia;
CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions
Related to Detainees in the War on Terrorism, by Jennifer K. Elsea; and CRS Report R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
Contents
Supreme Court Decisions ................................................................................................................ 2
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .................................................................................. 2
Rumsfeld v. Padilla, 542 U.S. 426 (2004) ................................................................................. 3
Rasul v. Bush, 542 U.S. 466 (2004) ........................................................................................... 3
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ............................................................................... 4
Boumediene v. Bush, 553 U.S. 723 (2008) ................................................................................ 4
Gates v. Bismullah, 554 U.S. 913 (2008) .................................................................................. 5
Al-Marri v. Spagone, 555 U.S. 1220 (2009) .............................................................................. 5
Kiyemba v. Obama, 559 U.S. 131 (2010) .................................................................................. 6
Kiyemba v. Obama, 131 S. Ct. 1631 (2011) .............................................................................. 6
Rulings by the D.C. Circuit Court of Appeals ................................................................................. 6
Scope of Executive’s Detention Authority and Related Evidentiary Burdens ........................... 8
Al-Bihani v. Obama, 590 F.3d 866, en banc rehearing denied,
619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011)................................... 8
Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010), cert. denied,
131 S. Ct. 1001 (2011) ................................................................................................... 10
Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011) ......... 12
Al Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010), cert. denied, 131 S. Ct.
1812 (2011) .................................................................................................................... 13
Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) ......................................................... 14
Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010)............................................................... 14
Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739
(2012) ............................................................................................................................. 16
Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011), cert. denied, 132 S. Ct.
2739 (2012) .................................................................................................................... 17
Almerfedi v. Obama, 654 F.3d 1 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739
(2012) ............................................................................................................................. 17
Al Alwi v. Obama, 653 F.3d 11 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739
(2012) ............................................................................................................................. 19
Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011), 677 F.3d 1175 (reissued), cert.
denied, 132 S. Ct. 2741 (2012) ...................................................................................... 20
Al Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013) .......................................................... 22
Hussain v. Obama, 718 F.3d 964 (D.C. Cir. 2013), cert. denied, 572 U.S. ___
(April 21, 2014) .............................................................................................................. 23
Transfer and Release of Detainees .......................................................................................... 23
Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (“Kiyemba I”), vacated,
559 U.S. 131 (2010), reinstated as amended, 605 F.3d 1046 (D.C. Cir. 2010)
(“Kiyemba III”), cert. denied, 131 S. Ct. 1631 (2011) ................................................... 24
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“Kiyemba II”), cert. denied,
559 U.S. 1005 (2010) ..................................................................................................... 24
Gul v. Obama, 652 F.3d 12 (D.C. Circ. 2011), cert. denied, 132 S. Ct. 1906
(2012) ............................................................................................................................. 25
Other Notable Rulings ............................................................................................................. 25
Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008) ................................................................ 26
Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009) ......................................................... 27
Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (per curiam), cert. denied,
558 U.S. 1091 (2009) ..................................................................................................... 27
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Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), 899 F. Supp. 2d 10 (D.D.C.
2012) (“Al Maqaleh II”), remanded in part and aff’d in part, Maqaleh v. Hagel,
738 F.3d 312 (D.C. Cir. 2013). ....................................................................................... 28
Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012) .................................................. 30
Al Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014) ............................................................. 30
In re Guantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d 8
(D.D.C. 2012), appeal dismissed sub nom. Abdah v. Obama, 2013 WL 221445
(D.C. Cir. January 11, 2013) .......................................................................................... 31
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) ............................................................ 32
Rulings by the Fourth Circuit Court of Appeals ............................................................................ 32
Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005) ......................................................................... 33
Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam) ......................................... 34
Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), cert. denied, 132 S. Ct. 2751 (2012) ......... 35
Other Citizen Detention Cases ....................................................................................................... 36
Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013) ....................................................................... 36
Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc) ...................................................... 37
Criminal Cases ............................................................................................................................... 39
Moussaoui Litigation ............................................................................................................... 39
United States v. Lindh, 227 F. Supp. 2d 565 (E.D. Va. 2004) .................................................. 42
United States v. Ghailani, 733 F.3d 29 (2d Cir. 2013), cert. denied, 2014 WL 272119
(U.S. March 10, 2014) .......................................................................................................... 43
Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) (“Hamdan II”) ............................. 46
Al Bahlul v. United States, 2013 WL 297726, vacated and reh’g en banc granted, No.
11-1324 (D.C. Cir. 2013) ...................................................................................................... 48
Al Nashiri v. MacDonald, 741 F.3d 1002 (9th Cir. 2013) ......................................................... 49
Conclusion ..................................................................................................................................... 50
Contacts
Author Contact Information........................................................................................................... 51
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
s part of the conflict with the Taliban and Al Qaeda, the United States has captured and
detained numerous persons believed to have been part of or associated with enemy
Aforces. Over the years, federal courts have considered a multitude of petitions by or on
behalf of suspected belligerents challenging aspects of U.S. detention policy. The Supreme Court
has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda
and the Taliban, including executive authority under the 2001 Authorization for Use of Military
Force (“AUMF,” P.L. 107-40) to detain properly designated enemy belligerents captured on the
Afghan battlefield; the application of at least some provisions of the 1949 Geneva Conventions to
the conflict with Al Qaeda; and the ability of detainees held in the United States or at the U.S.
Naval Station in Guantanamo Bay, Cuba, to challenge the legality of their detention in habeas
corpus proceedings.
In December 2011, Congress passed the National Defense Authorization Act for FY2012 (“2012
NDAA,” P.L. 112-81), which contains a provision largely intended to codify the present
understanding of the detention authority conferred by the AUMF, as interpreted and applied by
the Executive and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).1
The full implications of the 2012 NDAA upon judicial activity concerning wartime detention
remains to be seen. In any event, the act does not address many of the legal issues involving
wartime detention which, while occasioning significant political debate, have not been squarely
resolved by the Supreme Court. These issues include the full scope of the Executive’s detention
authority, including the circumstances in which U.S. citizens may be detained as enemy
belligerents; the degree to which noncitizens held at Guantanamo and other locations outside the
United States are entitled to protections under the Constitution; the authority of federal habeas
courts to compel the release into the United States of detainees determined to be unlawfully held
if the Executive cannot effectuate their release to another country; and the ability of detainees to
receive advance notice and challenge their proposed transfer to a foreign country. Additionally,
the Supreme Court may be called upon to determine the nature of procedural rules to be applied
in habeas cases and the proper standard of evidence to be applied. To the extent that these rules
are found to differ from the Federal Rules of Civil Procedure and other court rules, it may be
necessary to determine whether the same procedural rules apply to both U.S. citizens and foreign
nationals who may be detained under the AUMF authority.
This report briefly summarizes major judicial opinions concerning suspected enemy belligerents2
detained in the conflict with Al Qaeda and the Taliban. It discusses all Supreme Court decisions
concerning enemy combatants. It also addresses notable appeals court opinions addressing issues
of ongoing relevance to U.S. detention policy. The report also discusses a few notable decisions
by federal district courts, including criminal cases involving persons who were either involved in
1 For further discussion of the detention provisions in the 2012 NDAA, see CRS Report R42143, The National Defense
Authorization Act for FY2012 and Beyond: Detainee Matters, by Jennifer K. Elsea and Michael John Garcia. For an
analysis of their application to U.S. persons, see CRS Report R42337, Detention of U.S. Persons as Enemy
Belligerents, by Jennifer K. Elsea.
2 The Obama Administration discontinued the use of the term “enemy combatant” to describe persons detained
pursuant to the law of war or the Authorization for Use of Military Force (“AUMF”). See Department of Justice (DOJ),
“Department of Justice Withdraws ‘Enemy Combatant’ Definition for Guantanamo Detainees,” press release, March
13, 2009, http://www.usdoj.gov/opa/pr/2009/March/09-ag-232.html (hereinafter “DOJ Press Release”); In re
Guantanamo Bay Detainee Litigation, Respondents’ Memorandum Regarding the Government’s Detention Authority
Relative to Detainees Held At Guantanamo Bay, No. 08-0442, filed March 13, 2009 (D.D.C.) (hereinafter “Detention
Authority Memorandum”). We use the terms “enemy combatant” or “enemy belligerent” broadly to describe persons
who might be subject to detention or prosecution in connection with the conflict authorized by the AUMF as
interpreted by the executive branch.
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the 9/11 attacks or were captured abroad by U.S. forces or allies during operations against Al
Qaeda and the Taliban. It also addresses some federal appellate reviews of matters involving
military commissions.
Many of the rulings discussed in this report are discussed in greater detail in other CRS products,
including CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in
Federal Court, by Jennifer K. Elsea and Michael John Garcia; CRS Report RL34536,
Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus, by Michael John Garcia;
CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions
Related to Detainees in the War on Terrorism, by Jennifer K. Elsea; and CRS Report R42337,
Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.
Supreme Court Decisions
Since 2004, the Supreme Court has made several rulings concerning enemy combatants. These
have addressed, inter alia, the Executive’s authority to detain enemy belligerents under the 2001
AUMF; the legality of military commissions established by presidential order to try suspected
belligerents for violations of the law of war; and detainees’ access to federal courts.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)3
The Hamdi case addressed the President’s authority to detain “enemy combatants” as part of the
conflict authorized by the AUMF, and whether a detained individual could seek independent
review of the legality of his detention. Four separate opinions were written, with none receiving
support of a majority of the Justices. However, a majority of the Court recognized that, as a
necessary incident to the 2001 AUMF, the President is authorized to detain persons captured
while fighting U.S. forces in Afghanistan (including U.S. citizens), and potentially hold such
persons for the duration of the conflict to prevent their return to hostilities.4 A divided Court
found that persons deemed “enemy combatants” have the right to challenge the legality of their
detention before a judge or other “neutral decision-maker,” with a majority of the Justices clearly
recognizing the existence of such a right in the case of a detained U.S. citizen.5
In a plurality opinion joined by three other Justices, Justice O’Connor wrote that a citizen
detained as an enemy combatant must receive notice of the factual basis for his classification and
a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker,
and has a right to counsel in connection with such a hearing. The plurality suggested, however,
that the exigencies of the circumstances of a detainee’s capture may allow for a tailoring of
3 For further discussion of Hamdi, see CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of
Opinions Related to Detainees in the War on Terrorism, by Jennifer K. Elsea; CRS Report R42337, Detention of U.S.
Persons as Enemy Belligerents, by Jennifer K. Elsea.
4 Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (O’Connor, J., plurality opinion); id. at 588-589 (Thomas, J.,
dissenting).
5 Id. at 518, 533 (O’Connor, J., plurality opinion, joined by Breyer, J., Kennedy, J., and Rehnquist, C.J.); 553 (Souter,
J., concurring in part and dissenting in part, joined by Ginsburg, J.). Justices Scalia and Stevens supported a more
limited view concerning the Executive’s authority to detain U.S. citizens, believing that detention without criminal
charge was only permissible if Congress suspended the writ of habeas corpus. Id. at 554 (Scalia, J., dissenting, joined
by Stevens, J.).
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enemy combatant proceedings “to alleviate their uncommon potential to burden the Executive at
a time of ongoing military conflict,” possibly allowing hearsay evidence and “a presumption in
favor of the Government’s evidence,” as long as a fair opportunity to rebut such evidence is
provided.6
Rumsfeld v. Padilla, 542 U.S. 426 (2004)7
The Padilla case, decided on the same day as Hamdi, concerned a habeas challenge by Jose
Padilla, a U.S. citizen who was designated as an “enemy combatant” and militarily detained in the
United States for his alleged involvement in an Al Qaeda plot to detonate a “dirty bomb.” Unlike
the petitioner in Hamdi, who was captured in the Afghan zone of combat, Padilla was captured on
U.S. soil. In a 5-4 ruling, the Court remanded the case without deciding the merits on the ground
that Padilla’s habeas petition had not been filed in the proper venue. In doing so, the majority did
not reach the merits of Padilla’s claim that any authority the President might have under the
AUMF to detain “enemy combatants” did not extend to persons captured on American soil and
away from the Afghan battlefield. Four Justices would have found jurisdiction based on the
“exceptional circumstances” of the case and affirmed the holding below that detention is
prohibited under the Non-Detention Act, 18 U.S.C. §4001(a) (prohibiting the detention of U.S.
citizens unless authorized by an act of Congress). Padilla filed a new petition in the Fourth
Circuit, and the appellate court considered the legality of his detention in Padilla v. Haft,
discussed infra.
Rasul v. Bush, 542 U.S. 466 (2004)8
In Rasul v. Bush, the Court held in a 6-3 ruling that the federal habeas corpus statute, 28 U.S.C.
§2241, provided federal courts with jurisdiction to consider habeas corpus petitions by or on
behalf of persons detained at the U.S. Naval Station in Guantanamo Bay, Cuba. Having found that
Guantanamo detainees were entitled by statute to seek habeas review of their detention, the Court
did not reach the issue of whether the constitutional writ of habeas also extended to noncitizens
held at Guantanamo. The Court also did not address whether a less rigorous burden of proof or
relaxed evidentiary procedures would be appropriate in comparison to ordinary habeas cases.
Congress subsequently attempted to limit the reach of the federal habeas statute to Guantanamo
detainees through the enactment of the Detainee Treatment Act of 2005 (DTA)9 and the Military
Commissions Act of 2006 (MCA).10
6 Id. at 533-534 (O’Connor, J., plurality opinion).
7 For further discussion of the Padilla decision, see CRS Report RS21884, supra footnote 3; CRS Report R42337,
supra footnote 1.
8 For a more detailed summary of the Rasul opinion, see CRS Report RS21884, supra footnote 3.
9 P.L. 109-148, Title X; P.L. 109-163, Title XIV.
10 P.L. 109-366.
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Hamdan v. Rumsfeld, 548 U.S. 557 (2006)11
In Hamdan v. Rumsfeld, the Supreme Court reviewed the validity of military tribunals established
pursuant to presidential order to try suspected terrorists for violations of the law of war. The
petitioner Hamdan was charged with conspiracy to commit a violation of the law of war. Prior to
reaching the merits of the case, the Hamdan Court first had to determine whether the DTA
stripped it of jurisdiction to review habeas corpus challenges by or on behalf of Guantanamo
detainees whose petitions had already been filed prior to enactment of the DTA. In a 5-3 opinion,
the Court held that the DTA did not apply to such petitions. Turning to the merits of the case, the
majority held that the convened tribunals did not comply with the Uniform Code of Military
Justice (UCMJ) or the law of war, as incorporated in the UCMJ and embodied in the 1949
Geneva Conventions, which the Court held applicable to the armed conflict with Al Qaeda. The
Court concluded that, at a minimum, Common Article 3 of the Geneva Conventions applies to
persons captured in the conflict with Al Qaeda, according to them a minimum baseline of
protections, including protection from the “passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted court, affording all
the judicial guarantees which are recognized as indispensable by civilized peoples.” The Court
held that military commissions were not “regularly constituted” because they deviated too far
from the rules that apply to courts-martial, without a satisfactory explanation of the need for
departing from such rules. In particular, the Court noted that the commission rules allowing the
exclusion of the defendant from attending portions of his trial or hearing some of the evidence
against him deviated substantially from court-martial procedures.
A four-Justice plurality of the Court also recognized that for an act to be triable under the
common law of war, the precedent for it being treated as an offense must be “plain and
unambiguous.”12 After examining the history of military commission practice in the United States
and internationally, the plurality further concluded that conspiracy to violate the law of war was
not in itself a crime under the common law of war or the UCMJ.
Boumediene v. Bush, 553 U.S. 723 (2008)13
In the aftermath of the Hamdan decision, Congress enacted the MCA, which, inter alia, expressly
eliminated court jurisdiction over all pending and future causes of action other than via the
limited review permitted under the DTA. In the 2008 case of Boumediene v. Bush, the Court ruled
in a 5-4 opinion that the constitutional privilege of habeas extends to Guantanamo detainees. In
doing so, the Court stated that the Constitution’s extraterritorial application turns on “objective
factors and practical concerns.”14 The Court deemed at least three factors to be relevant in
assessing the extraterritorial scope of the constitutional writ of habeas: (1) the citizenship and
status of the detainee and the adequacy of the status determination process; (2) the nature of the
11 For further discussion of the Hamdan opinion, see CRS Report RS22466, Hamdan v. Rumsfeld: Military
Commissions in the “Global War on Terrorism,” by Jennifer K. Elsea.
12 Hamdan v. Rumsfeld, 548 U.S. 557, 602 (2006) (Stevens, J., plurality opinion, joined by Souter, J., Ginsburg, J., and
Breyer, J.).
13 A more extensive discussion of Boumediene is found in CRS Report RL34536, Boumediene v. Bush: Guantanamo
Detainees’ Right to Habeas Corpus, by Michael John Garcia.
14 Boumediene v. Bush, 553 U.S. 723, 764 (2008).
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site where the person is seized and detained; and (3) practical obstacles inherent in resolving the
prisoner’s entitlement to the writ.
The Court also found that MCA §7, which limited judicial review of executive determinations of
the Boumediene petitioners’ enemy combatant status to that authorized by the DTA, did not
provide an adequate habeas substitute and therefore acted as an unconstitutional suspension of the
writ of habeas corpus. The majority listed a number of potential constitutional infirmities in the
DTA review process, including the absence of provisions (1) empowering a reviewing court to
order the release of a detainee found to be unlawfully held; (2) permitting petitioners to challenge
the President’s authority to detain them indefinitely; (3) enabling a presiding court to review or
correct administrative findings of fact which formed the legal basis for an individual’s detention;
and (4) permitting the detainee to present exculpatory evidence discovered after the conclusion of
administrative proceedings.
Although the Boumediene Court held that the constitutional writ of habeas extends to noncitizens
held at Guantanamo, it did not opine as to the scope of habeas review available to detainees, the
remedy available for those persons found to be unlawfully held by the United States, or the extent
to which other constitutional provisions extend to noncitizens held at Guantanamo and elsewhere.
Gates v. Bismullah, 554 U.S. 913 (2008)
Prior to the Supreme Court’s decision in Boumediene, the D.C. Circuit considered a number of
challenges brought under the DTA in which detainees contested determinations by Combatant
Status Review Tribunals (CSRTs) that they were properly detained as enemy combatants. In 2008,
the government petitioned the Supreme Court to review two rulings by the D.C. Circuit regarding
the scope of judicial review of CSRT determinations.15 The Supreme Court granted certiorari and
vacated the appellate court’s decisions, remanding for reconsideration in light of the Supreme
Court’s decision in Boumediene. Upon remand, the D.C. Circuit reinstated without explanation its
decisions, presumably because it did not find the Boumediene ruling to conflict with its decisions
in these cases.
Al-Marri v. Spagone, 555 U.S. 1220 (2009)
In December 2008, the Supreme Court granted certiorari to review an en banc ruling by the U.S.
Court of Appeals for the Fourth Circuit (Fourth Circuit) regarding petitioner al-Marri, an alien
lawfully admitted into the United States on a student visa who had been arrested by civilian law
enforcement and thereafter transferred to military custody for detention as an enemy combatant.
At the time, the Court’s decision to review the Fourth Circuit’s ruling was thought to have
potentially set the stage for a definitive pronouncement regarding the President’s authority to
militarily detain terrorist suspects apprehended away from the Afghan battlefield. However,
before the Court could consider the merits of the case, the government requested that the Court
15 The D.C. Circuit in July 2007 issued an order rejecting the government’s motion to limit the scope of the court’s
review to the official record of the CSRT hearings. Bismullah v. Gates, 501 F.3d 178 (Bismullah I). The circuit court
decided that in order to determine whether a preponderance of evidence supported the CSRT determinations, it must
have access to all the information a CSRT is “authorized to obtain and consider, pursuant to the procedures specified by
the Secretary of Defense.” The court thereafter denied the government’s request for rehearing, explaining its view that
its previous order would not require a search for information that was not “reasonably available.” Bismullah v. Gates,
503 F.3d 137(D.C. Cir. 2007) (Bismullah II).
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authorize al-Marri’s release from military custody and transfer to civilian authorities to face
criminal charges. The Court granted the government’s request, vacated the appellate court’s
earlier judgment, and transferred the case back to the lower court with orders to dismiss it as
moot. The appellate court’s ruling is discussed in more detail below.
Kiyemba v. Obama, 559 U.S. 131 (2010)
In October 2009, the Supreme Court agreed to review a ruling by a three-judge panel of the D.C.
Circuit in the case of Kiyemba v. Obama, discussed infra. The Kiyemba case involved several
Guantanamo detainees who, despite no longer being considered enemy combatants and having
been cleared for release, had not been transferred from Guantanamo on account of the
government being unable to effectuate their release to a foreign country. The Kiyemba petitioners
sought reversal of a D.C. Circuit ruling finding that a federal habeas court lacked the authority to
compel the Executive to release the detainees into the United States. Following the Supreme
Court’s grant of certiorari, however, several Kiyemba petitioners were resettled in foreign
countries, and the United States was able to find countries willing to settle the remaining
petitioners, although five petitioners rejected these countries’ offers for resettlement. On March 1,
2010, the Supreme Court vacated the appellate court’s opinion and remanded the case in light of
these developments. Because the Supreme Court had granted certiorari on the understanding that
no remedy was available for the petitioners other than release into the United States, it returned
the case to the D.C. Circuit to review the ramifications of the new circumstances. Discussion of
subsequent action taken by the D.C. Circuit, as well as by the Supreme Court with respect to
another petition for certiorari by the Kiyemba petitioners, is found below.
Kiyemba v. Obama, 131 S. Ct. 1631 (2011)
Following the Supreme Court’s remand of the Kiyemba case back to the D.C. Circuit, the circuit
panel reinstated its opinion with slight modifications. The Kiyemba petitioners once again sought
Supreme Court review of the circuit court’s ruling that federal habeas courts lacked authority to
compel the petitioners’ release into the United States. On April 18, 2011, the Supreme Court
denied their request for review. Eight Supreme Court Justices took part in the decision, with
Justice Kagan recusing herself. In joining the opinion, Justice Breyer issued a statement joined by
Justices Kennedy, Ginsburg, and Sotomayor, which emphasized that the issue that had initially
been presented when the Kiyemba petitioners first sought review by the Supreme Court was
“whether a district court may order the release of an unlawfully held prisoner into the United
States where no other remedy is available.” Because the government had received offers of
resettlement for the petitioners, the petitioners had not proffered or alleged evidence that they
would face torture or other harm, and the government continued to seek plaintiffs’ resettlement,
Justice Breyer found “no Government-imposed obstacle to petitioners’ timely release and
appropriate resettlement.” However, Justice Breyer stated that should these circumstances
materially change, the petitioners “may of course raise their original issue (or related issues)
again in the lower courts and in this Court.”
Rulings by the D.C. Circuit Court of Appeals
Most judicial activity concerning U.S. detention policy in the conflict with Al Qaeda has occurred
within the D.C. Circuit. Following the Supreme Court’s ruling in Boumediene that the
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constitutional writ of habeas corpus extends to detainees held at Guantanamo, over 200 habeas
petitions were filed by detainees in the U.S. District Court for the District of Columbia. Courts
considering habeas claims have sometimes reached differing conclusions regarding the scope of
the Executive’s detention authority; the admissibility of hearsay evidence and involuntary
statements made by detainees; the appropriate methodology for assessing the sufficiency and
reliability of evidence proffered by the government to justify the legality of a habeas petitioner’s
detention; and the remedy available for those persons whom a habeas court determines to have
been unlawfully detained.16 Decisions by the D.C. Circuit have generally been favorable to the
legal positions advanced by the government. Since 2009, the appellate court has issued rulings
concluding, among other things, that
• the Executive may lawfully detain persons who are “part of” Al Qaeda, the
Taliban, and affiliated groups, and possibly also persons who provide a sufficient
degree of support to such entities in their hostilities against the United States and
its allies (Al-Bihani v. Obama);
• a functional approach is appropriate when assessing whether a person is “part of”
Al Qaeda, meaning that judges should consider the significance of a person’s
activities in relation to the organization, rather than requiring formal proof of
membership, such as evidence the petitioner received orders from the
organization’s hierarchy (Awad v. Obama, Bensayah v. Obama, Salahi v. Obama);
• the government may satisfy its evidentiary burden in support of a person’s
detention when its factual claims are supported by a preponderance of evidence
(Al-Bihani v. Obama, Al Odah v. United States), but a lower standard might be
constitutionally permissible (Al-Adahi v. Obama, Almerfedi v. Obama);
• it is proper for a habeas court to assess the cumulative weight and effect of
proffered evidence according to a “conditional probability analysis” when
determining whether the government has demonstrated factual grounds for
detaining a habeas petitioner (Al-Adahi v. Obama, Salahi v. Obama);
• consideration of hearsay evidence in habeas cases is not determined by the
Federal Rules of Evidence (Al Odah v. United States, Al-Madhwani v. Obama);
• official government records, including government intelligence reports, are
entitled to a presumption of regularity in Guantanamo habeas litigation (Latif v.
Obama);
• the writ of habeas affords Guantanamo detainees with a limited right to challenge
their proposed transfer to the custody of a foreign government (Kiyemba II) as
well as matters related to their conditions of confinement (Aamer v. Obama);
• habeas courts lack authority, absent an authorizing statute, to compel the
Executive to release non-citizen detainees into the United States, even if such
16 See generally Benjamin Wittes, Robert Chesney & Rabea Benhalim, The Emerging Law of Detention: The
Guantánamo Habeas Cases as Lawmaking, Brookings Institute, January 22, 2010, available at
http://www.brookings.edu/papers/2010/0122_guantanamo_wittes_chesney.aspx (discussing different approaches taken
by district courts in the handling of habeas petitions brought by Guantanamo detainees); Wittes, Chesney, & Larkin
Reynolds, The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking, Brookings Institute,
May 2011, available at http://www.brookings.edu/papers/2011/05_guantanamo_wittes.aspx (discussing more recent
trends in Guantanamo habeas cases, including the effects that appellate rulings have had upon habeas litigation).
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persons have been determined by the court to be unlawfully detained (Kiyemba I
and III);
• it is unlikely that noncitizens who have been transferred to foreign custody may
seek judicial review of their designation as enemy combatants by the U.S.
government (Gul v. Obama); and
• the constitutional writ of habeas does not presently extend to noncitizen detainees
held at U.S.-operated facilities in Afghanistan (Maqaleh v. Gates).
In some of these cases, affected detainees have requested Supreme Court review. Several of these
requests have been denied. It remains to be seen whether the Supreme Court will ultimately agree
to review any of the D.C. Circuit’s decisions, or whether the appellate court’s rulings will remain
controlling for the foreseeable future.
The following section discusses major rulings made by the D.C. Circuit regarding persons
designated as enemy combatants that involve matters of continuing relevance to U.S. detention
policy. It does not discuss those rulings that were subsequently overruled by the Supreme Court
on the merits.
Scope of Executive’s Detention Authority and Related
Evidentiary Burdens
The D.C. Circuit has issued several opinions relating to the scope of the Executive’s authority to
detain persons as part of the conflict with Al Qaeda, the Taliban, and associated forces. These
opinions have also addressed the issues related to the sufficiency and reliability of evidence
proffered by the government in support of its factual claims.
Al-Bihani v. Obama, 590 F.3d 866, en banc rehearing denied,
619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011)
In January 2010, a three-judge panel of the D.C. Circuit issued a ruling concerning the scope of
the government’s detention authority under the AUMF in the case of Al-Bihani v. Obama. In an
opinion supported in full by two members of the panel,17 the appellate court recognized that, at a
minimum, the President was authorized to detain persons who were subject to the jurisdiction of
military commissions established pursuant to the Military Commissions Acts of 2006 and 2009;
namely, any person who was “part of forces associated with Al Qaeda or the Taliban,” along with
“those who purposefully and materially support such forces in hostilities against U.S. Coalition
partners.”18 While the panel concluded that either purposeful and material support for an AUMF-
targeted organization in hostilities against the United States or membership in such an
organization may be independently sufficient to justify detention, the court declined “to explore
the outer bounds of what constitutes sufficient support or indicia of membership to meet the
17 A third member of the panel issued a separate opinion concurring with the majority’s judgment. However, the
opinion did not clearly endorse the majority’s view as to the scope of the Executive’s detention authority. See Al-
Bihani v. Obama, 590 F.3d 866, 883-885 (D.C. Cir. 2010) (Williams, J., concurring) (arguing that petitioner was
detainable on account of being “part of” an AUMF-targeted organization, but not deciding whether a person could be
detained on account of “support” for a targeted organization that he was not also a “part of”).
18 Id. at 872 (quoting 2006 MCA, P.L. 109-366, §3, and 2009 MCA, P.L. 111-84, Div A, §1802).
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detention standard.” It did, however, note that this standard would permit the detention of a
“civilian contractor” who “purposefully and materially supported” an AUMF-targeted
organization through “traditional food operations essential to a fighting force and the carrying of
arms.”19 Notwithstanding the government’s reliance on the law of war to interpret the scope of the
AUMF and arguably in conflict with Supreme Court discussion of the issue in Hamdi, the panel
rejected the idea that the international law of war has any relevance to the courts’ interpretation of
the scope of the detention power conferred by the AUMF.
The panel also held that the procedural protections afforded in habeas cases involving wartime
detainees do not need to mirror those provided to persons in the traditional criminal law context,
where evidence must demonstrate guilt beyond reasonable doubt, or the lesser procedures courts
have used in any specific habeas context. The panel stated:
[C]ourts are neither bound by the procedural limits created for other detention contexts nor
obliged to use them as baselines from which any departures must be justified. Detention of
aliens outside the sovereign territory of the United States during wartime is a different and
peculiar circumstance, and the appropriate habeas procedures cannot be conceived of as mere
extensions of an existing doctrine. Rather, those procedures are a whole new branch of the
tree.20
In the context of military detention of enemy belligerents, the court found, the government need
only support its authority to detain using a “preponderance of evidence” standard.21 The court
rejected the petitioner’s argument, based on his reading of Hamdi,22 that any relaxation of
procedural standards must be justified by the particular exigencies of the case. The court
established the hearsay rule for detainee habeas cases, at least those brought by aliens abroad23:
[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.24
The D.C. Circuit thereafter denied a petition for an en banc rehearing of the Al-Bihani case.
However, a concurring opinion joined by a majority of the active appellate court judges
characterized certain aspects of the panel’s decision, concerning the application of international
law of war principles in interpreting the AUMF, to be non-binding dicta.25 It did not address
whether any portions of the Al-Bihani ruling concerning the lawfulness of detaining persons on
account of membership or support for Al Qaeda, the Taliban, or associated forces also constituted
19 Id. at 872-873. The panel found that even if petitioner was not a member of an AUMF-targeted organization, his
service as a cook for a military brigade affiliated with Taliban and Al Qaeda forces, in addition to his accompaniment
of the brigade during military operations, constituted sufficient grounds for his detention. Id.
20 Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010).
21 The preponderance standard is generally interpreted to require that the evidence presented by both sides taken
together makes the facts in question more likely true than not. See 29 AM. JUR. 2d Evid. §173.
22 See Hamdi v. Rumsfeld, 542 U.S. 507, 533-34 (2004) (O’Connell, J., plurality opinion) (“exigencies of the
circumstances may demand” that procedural rules be tailored to avoid undue burden on the government, and that
hearsay “may need to be accepted as the most reliable available evidence from the Government”).
23 The court distinguished the petitioner’s case from any case involving a U.S. citizen or one in which an alien is
detained within the United States, suggesting it might reach a different conclusion in such a case. Al-Bihani, 590 F.3d
at 877.
24 Id. at 879.
25 Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (Sentelle, C.J., concurring).
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non-binding dicta. However, circuit court decisions since Al-Bihani have appeared to construe the
AUMF as authorizing the Executive to detain persons who are “part of” organizations targeted by
the AUMF as well as those who provide support to such entities.26 Moreover, the 2012 NDAA
expressly authorizes the detention of persons who have “substantially supported al-Qaeda, the
Taliban, or associated forces that are engaged in hostilities against the United States or its
coalition partners, including any person who has … directly supported such hostilities in aid of
such enemy forces.”27
In any event, in litigation following Al-Bihani involving Guantanamo detainees, the Obama
Administration has not justified its detention claims solely on the grounds that a particular
detainee provided support to Al Qaeda or the Taliban. Instead, its legal justification for holding
persons on account of wartime activity has been that they were at least functionally “part of” Al
Qaeda, the Taliban, or an associated force at the time of capture.
The Supreme Court denied a petition to review the Al-Bihani decision. The case should not be
confused with a similarly named case involving the petitioner’s brother.28 The habeas petitioner in
that case also sought Supreme Court review of the denial of his habeas petition, but the Court
declined to hear the case.
Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010), cert. denied,
131 S. Ct. 1001 (2011)
In Al-Adahi, a three-judge panel of the D.C. Circuit endorsed the use of “conditional probability
analysis” by habeas courts when considering the sufficiency and reliability of evidence proffered
by the government in support of its claim that a person is lawfully detained under the AUMF. The
case involved review of a district court decision granting a habeas petition by a Guantanamo
detainee who the government claimed was “part of” Al Qaeda, following its determination that
the government had failed to demonstrate its claim by a preponderance of evidence.
On appeal, the D.C. Circuit panel assumed arguendo that the government was required to show
by a preponderance of evidence that the petitioner was lawfully detained under the AUMF, but
suggested that reliance on this standard may not be constitutionally required. It next turned to the
district court’s analysis of evidence proffered by the government in support of its detention of
petitioner, and concluded that the lower court “clearly erred in its treatment of the evidence” and
its application of the preponderance of evidence standard. Examining the record, the circuit panel
held that the lower court erred by separately considering the sufficiency of each item of evidence
proffered by the government, and finding that the government failed to meet its evidentiary
burden because no individual piece of evidence provided sufficient grounds to justify the
26 See, e.g., Almerfedi v. Obama, 654 F.3d 1, 4 n.2 (D.C. Cir. 2011) (“As we have explained [in Al-Bihani], the
government may detain any individual ‘engaged in hostilities ... against the United States,’ who ‘purposefully and
materially supported hostilities against the United States or its coalition partners,’ or who ‘is part of the Taliban, al
Qaeda, or associated forces.’”); Hatim v. Gates, 632 F.3d 720 (D.C. Cir. 2011) (per curiam panel decision) (finding that
district court ruling that military could only detain person who was “part of” Al Qaeda or the Taliban was “directly
contrary to Al-Bihani v. Obama, which held that ‘those who purposefully and materially support’ al-Qaida or the
Taliban could also be detained”).
27 2012 NDAA, P.L. 112-81, §1021(b).
28 Al Bihani v. Obama, No. 10-5352, 2011 U.S. App. LEXIS 2600 (D.C. Cir., February 11, 2011) (summarily affirming
lower court’s denial of habeas petition), cert. denied, 132 S. Ct. 2739 (2012).
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petitioner’s detention. The circuit panel was also critical of the lower court for failing to make any
findings regarding the petitioner’s “implausible” and inconsistent explanations for some of his
activities, stating that it is a “well-settled principle that false exculpatory statements are
evidence—often strong evidence—of guilt.”
According to the circuit panel, “conditional probability analysis” is appropriate for assessing
whether a person’s detention under the AUMF is supported by the preponderance of the evidence.
Using this framework, a habeas court must consider the cumulative weight and effect of proffered
evidence when assessing whether the government has satisfied its evidentiary burden. In
describing “conditional probability analysis” and its implications for the assessment of the
evidence in the case before it, the Al-Adahi panel wrote:
“Many mundane mistakes in reasoning can be traced to a shaky grasp of the notion of
conditional probability.” JOHN ALLEN PAULOS, INNUMERACY: MATHEMATICAL ILLITERACY
AND ITS CONSEQUENCES 63 (1988). The key consideration is that although some events are
independent (coin flips, for example), other events are dependent: “the occurrence of one of
them makes the occurrence of the other more or less likely.... ” JOHN ALLEN PAULOS,
BEYOND NUMERACY: RUMINATIONS OF A NUMBERS MAN 189 (1991). Dr. Paulos gives this
example: “the probability that a person chosen at random from the phone book is over 250
pounds is quite small. However, if it’s known that the person chosen is over six feet four
inches tall, then the conditional probability that he or she also weighs more than 250 pounds
is considerably higher.” INNUMERACY 63.
Those who do not take into account conditional probability are prone to making mistakes in
judging evidence. They may think that if a particular fact does not itself prove the ultimate
proposition (e.g., whether the detainee was part of al-Qaida), the fact may be tossed aside
and the next fact may be evaluated as if the first did not exist. This is precisely how the
district court proceeded in this case: Al-Adahi’s ties to bin Laden “cannot prove” he was part
of Al-Qaida and this evidence therefore “must not distract the Court.” … The fact that Al-
Adahi stayed in an al-Qaida guesthouse “is not in itself sufficient to justify detention.” Al-
Adahi’s attendance at an al-Qaida training camp “is not sufficient to carry the Government’s
burden of showing that he was a part” of al-Qaida. And so on. The government is right: the
district court wrongly “required each piece of the government’s evidence to bear weight
without regard to all (or indeed any) other evidence in the case. This was a fundamental
mistake that infected the court’s entire analysis.”29
Employing this standard, the circuit panel examined the evidentiary record (including false
exculpatory statements made by the petitioner during interrogation),30 and concluded that the
government had satisfied its evidentiary burden of proving that the petitioner was subject to
detention on account of membership in Al Qaeda. The circuit panel also concluded that some of
the individual pieces of evidence proffered by the government—including evidence showing that
the petitioner had voluntarily stayed at an Al Qaeda guesthouse and had received and executed
orders from Al Qaeda members while at a weapons training camp—constituted sufficient grounds
to justify his detention.
29 Al-Adahi v. Obama, 613 F.3d 1102, 1105-1106 (D.C. Cir. 2010) (omitting some citations contained in original).
30 In support of its finding that the government had demonstrated by a preponderance of evidence that the petitioner
was a member of Al Qaeda, the circuit panel cited, inter alia, evidence relating to the petitioner’s travel to Afghanistan
in 2001, his subsequent meetings with Osama Bin Laden, his stay at an Al Qaeda guesthouse, his presence at an Al
Qaeda-affiliated training camp, and his wearing of a watch at the time of capture that was of the same model as that
used by Al Qaeda operatives.
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The Supreme Court denied a petition of certiorari to review the Al-Adahi ruling.
Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011)
This case involved the review of a district court’s denial of habeas relief to a Guantanamo
detainee whom the government alleged to have been “part of” Al Qaeda at the time of capture.
The petitioner, a Yemeni national, admitted to U.S. interrogators that he had travelled to
Afghanistan to receive weapons training and fight U.S. forces. He was subsequently injured in an
air raid, which resulted in the amputation of one of his legs. When Al Qaeda took over a portion
of a hospital where petitioner was being treated, he allegedly joined Al Qaeda fighters barricaded
there when coalition forces attempted to re-take the hospital, but he was surrendered by Al Qaeda
fighters due to his injury.
In upholding the district court’s denial of habeas relief, the circuit panel rejected several legal and
factual challenges raised by petitioner. As an initial matter, the Awad panel reaffirmed the
propriety of using conditional probability analysis, previously relied upon by the D.C. Circuit in
Al-Adahi, to assess petitioner’s evidentiary challenges; accordingly, it would not “weigh each
piece of evidence in isolation, but [would] consider all of the evidence taken as a whole.” The
circuit panel then proceeded to consider petitioner’s argument that some of the evidence that had
been proffered against him, including Al Qaeda documents and out-of-court statements by
another detainee who was present at the hospital where petitioner was apprehended, were
unreliable hearsay. The panel noted past jurisprudence recognizing that “hearsay evidence is
admissible in this type of habeas proceeding if the hearsay is reliable,” and concluded that the
proffered evidence was sufficiently reliable to have been considered by the lower court.
The court then turned to petitioner’s legal challenges. The panel rejected petitioner’s argument
that the government was required to justify its claims that he was lawfully detainable through
clear and convincing evidence, and found that the less rigorous “preponderance of evidence”
standard that had been relied upon by the district court was constitutionally permissible. The
circuit panel also dismissed petitioner’s argument that his habeas petition could only be denied if
a specific finding of fact was made that petitioner would pose a threat to the United States and its
allies if released. The panel characterized the circuit court’s prior decision in Al-Bihani as
foreclosing this argument, and it went on to state that
the United States’s authority to detain an enemy combatant is not dependent on whether an
individual would pose a threat … if released but rather upon the continuation of hostilities....
Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas
corpus proceedings in federal courts concerning aliens detained under the authority conferred
by the AUMF.
Finally, the panel rejected petitioner’s argument that, in order for the government to justify his
detention under the AUMF, it would have to demonstrate that he was part of Al Qaeda’s
“command structure.” The panel held that petitioner’s actions in joining Al Qaeda fighters behind
a barricade were sufficient grounds to conclude he was “part of” Al Qaeda. It also suggested other
situations where the government would not need to prove that a detainee was subject to Al
Qaeda’s “command structure” in order to justify its conclusion that he was “part of” Al Qaeda,
such as when a person was captured in Afghanistan as part of a group that was shooting at U.S.
forces and identified himself upon capture as an Al Qaeda member.
The Supreme Court denied a petition to review the Awad decision.
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Al Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1812
(2011)
In June 2010, a three-judge panel of the D.C. Circuit upheld a district court’s denial of a habeas
petition brought on behalf of a person who had been detained at Guantanamo since 2002 due to
his allegedly being part of Al Qaeda and Taliban forces. The petitioner challenged the procedures
used by the district court when admitting evidence, and also the sufficiency of the evidence upon
which its judgment on the merits was based. The circuit panel rejected these challenges as being
foreclosed by controlling legal precedent. Specifically, the panel rejected the petitioner’s
argument that the government was required to support its factual claims in support of the legality
of the petitioner’s detention through “clear and convincing evidence.” The panel recognized that
based on binding precedent within the circuit, it is “well-settled law that a preponderance of the
evidence standard is constitutional in considering a habeas petition from an individual detained
pursuant to authority granted by the AUMF.”31
The panel further rejected petitioner’s argument that the admission of hearsay was statutorily
restricted by the Federal Rules of Evidence and federal habeas statute. The court found this
argument unpersuasive, citing both to the Supreme Court’s ruling in Hamdi and the appellate
court’s prior jurisprudence as recognizing that district courts may admit reliable hearsay evidence
when considering a habeas petition by an individual detained under the AUMF. In this case, the
court agreed with the lower court that the hearsay evidence demonstrated sufficient indicia of
reliability to be accorded weight:
For example, in considering interrogation reports of a third party concerning al Qaeda and
Taliban travel routes into Afghanistan, the [district] court noted that this hearsay was
corroborated by “multiple other examples of individuals who used this route to travel to
Afghanistan for the purpose of jihad.” The court indicated that it was aware of the limitations
of this evidence when it concluded that “[although far from conclusive, the Government’s
evidence suggests that an individual using this travel route to reach Kandahar may have done
so because it was a route used by some individuals seeking to enter Afghanistan for the
purpose of jihad.”32
The court approved this analysis of hearsay and declined to find an abuse of discretion on the part
of the district court. The panel also rejected the petitioner’s challenges to the individual pieces of
evidence proffered by the government in support of his detention.
On April 4, 2011, the Supreme Court denied a petition to review the Al-Odah decision. The Al-
Odah ruling has been relied upon by the D.C. Circuit in other cases, including in one case in
which a petition for certiorari was denied by the Supreme Court.33
31 See also Khan 655 F.3d 20, 26 (D.C. Cir. 2011) (preponderance of the evidence standard is constitutional in cases
involving detention under the AUMF); Alsabri v. Obama, 684 F.3d 1298, 1309 (D.C. Cir. 2012) (same).
32 Al Odah v. United States, 611 F.3d 8, 14 (D.C. Cir. 2010) (citing 648 F. Supp. 2d 1, 10 (D.D.C. 2009)).
33 Al Kandari v. United States, 462 Fed. Appx. 1 (2011) (in an unpublished opinion, ruling that petitioner’s argument
that the Federal Rules of Evidence applied to Guantanamo habeas litigation was foreclosed by Al-Odah), cert. denied,
132 S. Ct. 2741 (2012).
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Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010)
This case involved the review of a district court denial of habeas relief to an Algerian citizen who
had been arrested by Bosnian authorities in 2001 and was subsequently transferred to U.S.
custody for detention at Guantanamo. The government claimed that although the petitioner had
not directly taken part in combat activities against the United States, he had intended to travel to
Afghanistan to fight U.S. forces and had facilitated the travel of others to do the same. The
executive branch initially argued that it had legal authority to hold the detainee, pursuant to the
authority vested by the AUMF and the President’s “inherent authority” as Commander-in-Chief,
on account of the detainee’s alleged membership in and support for Al Qaeda. In 2008, a federal
district court judge denied the detainee’s habeas petition.34 The court found that the government
had sufficient grounds to detain the petitioner for providing support to Al Qaeda, but declined to
decide whether there were also sufficient grounds to detain the petitioner for being “part of” the
organization.
On appeal, the Executive eschewed reliance on certain evidence that it earlier relied upon to
demonstrate that petitioner acted as a travel facilitator for Al Qaeda, and also modified its
argument in support of petitioner’s detention—abandoning its argument that the petitioner was
subject to detention on account of providing support to Al Qaeda, and instead arguing that he was
subject to detention on account of being “part of” the organization. The government also relied
solely on the authority granted by the AUMF to justify its detention authority, rather than any
independent authority deriving from the Commander-in-Chief Clause. The reviewing circuit
panel reversed and remanded the case back to the district court, finding that evidence relied upon
by the lower court to conclude that the petitioner had supported Al Qaeda was insufficient to
show that he was “part of” the organization.
Portions of the appellate panel’s opinion discussing the sufficiency and reliability of the evidence
proffered by the government were largely redacted. However, the published opinion provided
further clarification regarding the D.C. Circuit’s view of the detention authority conferred by the
AUMF. The Bensayah panel recognized that the D.C. Circuit had previously made clear that “the
AUMF authorizes the Executive to detain, at the least, any individual who is functionally part of
al Qaeda.” According to the panel, because Al Qaeda’s organizational structure is generally
unknown and thought to be amorphous, a determination as to whether an individual is “part of”
the organization “must be made on a case-by-case basis by using a functional rather than a formal
approach and by focusing upon the actions of the individual in relation to the organization.”
Although the panel concluded that evidence demonstrating that a person operated within Al
Qaeda’s command structure was sufficient to show that he was “part of” the organization, it
suggested that there “may be other indicia that a particular individual is sufficiently involved with
the organization to be deemed part of it.” Nonetheless, the panel indicated that the “purely
independent conduct of a freelancer” is not sufficient grounds to deem him to be functionally part
of Al Qaeda.
Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010)
This case involved review of a district court order granting habeas relief to a Guantanamo
detainee captured in 2001 in Mauritania. Although the petitioner had not fought against the
United States, the government alleged that he was lawfully detained on the grounds that he was
34 Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008).
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“part of” Al Qaeda. Most of the evidence proffered by the government in support of its
allegations concerned activities by the petitioner which occurred years before the 9/11 attacks. In
habeas proceedings before the lower court, the government presented evidence that petitioner
swore an oath of loyalty to Al Qaeda in 1991 and provided support to the organization at various
points thereafter, including by recruiting members, hosting organization leaders, and providing
the organization with financial support. For his part, the petitioner claimed that he severed ties
with Al Qaeda in the early 1990s. The district court ruled that the government failed to satisfy its
evidentiary burden in proving that the petitioner was “part of” Al Qaeda at the time of capture,
and ordered the detainee to be released. In doing so, it rejected the government’s argument that
once the petitioner swore an oath of allegiance to Al Qaeda, he bore the burden of demonstrating
that he had later withdrawn from the organization.
On appeal, a three-judge panel vacated the lower court’s decision, finding that intervening case
law—namely, the circuit court’s opinions in the Al-Adahi, Awad, and Bensayah cases discussed
above—cast doubt on the lower court’s approach to determining whether petitioner was “part of”
Al Qaeda. In particular, the Salahi panel found that the lower court had improperly required the
government to prove that the petitioner had received and executed orders from Al Qaeda in order
to demonstrate his membership in the organization. Subsequent circuit jurisprudence established
that membership could be demonstrated not only from evidence that a person was part of Al
Qaeda’s “command structure,” but also from activities which revealed a person to be functionally
part of the organization. The panel recognized, however, that in cases like the one involving
petitioner, who had not engaged in combat activities against the United States, “the government’s
failure to prove that an individual was acting under orders from al-Qaida may be relevant to the
question of whether the individual was ‘part of’ the organization when captured.”35
Although the government requested that the Salahi panel direct the district court to deny the
habeas petition, it declined to do so, finding that it was appropriate to remand the case so the
lower court could conduct further proceedings consistent with circuit jurisprudence that
developed after its initial ruling. The panel found that because the lower court lacked guidance
from subsequent circuit jurisprudence, it had primarily looked for evidence as to whether
petitioner participated in Al Qaeda’s command structure, but “did not make definitive findings
regarding certain key facts necessary for us to determine as a matter of law whether Salahi was in
fact ‘part of’ al-Qaida when captured.”
In remanding the case to the lower court for further factual findings, the Salahi panel reiterated
the admonition made by the circuit court in Al-Adahi that courts considering habeas petitions by
Guantanamo detainees must consider the assorted evidence relating to the government’s claims
collectively rather than in isolation. While the panel stated that the lower court appeared to have
generally followed this approach, it suggested that its consideration of certain evidence “may
have been unduly atomized.” Notably, the panel suggested that when the lower court determined
that the petitioner’s limited relationships with Al Qaeda operatives might have been too
insubstantial to independently serve as a basis for deeming the petitioner “part of” Al Qaeda,
those connections made it more probable that the petitioner was a member of the organization and
were thus relevant to an assessment as to whether he had been lawfully detained. The panel also
suggested that examining the petitioner’s oath to Al Qaeda in isolation from his subsequent
“sporadic support” may have resulted in the lower court failing to consider the possibility that this
support demonstrated the petitioner’s continued adherence to his oath of loyalty.
35 Salahi v. Obama, 625 F.3d 745, 752 (D.C. Cir. 2010) (italics in original).
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In reaching its ruling, the appellate court did not squarely address the government’s argument that
the petitioner’s oath to Al Qaeda in the early 1990s established an evidentiary burden upon him to
demonstrate that he had subsequently withdrawn from the organization. The appellate court also
declined to consider the government’s argument that the district court had accorded insufficient
weight to certain inculpatory statements that were made by petitioner in interrogations subsequent
to a period of time when he had been, by the government’s admission, subject to mistreatment,
because the panel viewed this issue to be irrelevant to the legal questions addressed by its opinion
conditional probability analysis.
Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739
(2012)
In Uthman, a three-judge circuit panel reversed and remanded a district court decision that had
granted habeas relief to a Yemeni national who had been captured in Afghanistan and detained by
U.S. forces since December 2001. In prior cases, including the Bensayah and Salahi decisions
discussed supra, the D.C. Circuit had recognized that the determination of whether a person was
“part of” Al Qaeda was based on a functional, case-by-case assessment which focused on the
individual’s actions in relation to the organization. The Uthman decision provided further
clarification as to the kind of circumstantial evidence that could potentially provide sufficient
grounds to support the detention of a person under the AUMF.
The government made several claims regarding Uthman’s activities in relation to Al Qaeda—
including that he attended an Al Qaeda training camp, fought against the Northern Alliance in
Afghanistan, and served as a bodyguard to Osama Bin Laden—which were contested.
Nonetheless, the D.C. Circuit panel found that the following facts, which were either found by the
district court or which were uncontested by Uthman, were sufficient to demonstrate that Uthman
was “more likely than not” part of Al Qaeda and therefore subject to detention: (1) he was
captured in December of 2001 in the vicinity of Tora Bora, where Al Qaeda forces had gathered
to fight United States and its allies; (2) at the time of capture, Uthman was travelling with a small
group including two Al Qaeda members who were bodyguards for Osama Bin Laden and a
Taliban fighter; (3) he had previously studied at a religious school in Yemen which was known as
“a fruitful al Qaeda recruiting ground,” and which had also been attended by the Al Qaeda and
Taliban fighters with whom Uthman had been captured; (4) Uthman’s travel route to Afghanistan
resembled that commonly used by Al Qaeda recruits; (5) his explanation for how he raised funds
to travel to Afghanistan was not viewed as credible by the district court, and constituted a “false
exculpatory” statement lending credence to the government’s claims of wrongdoing; (6) Uthman
was seen at an Al Qaeda guesthouse; and (7) Uthman’s exculpatory explanation of his activities in
Pakistan and Afghanistan involved “many coincidences that are perhaps possible, but not likely.”
Although the panel recognized that at least some of these findings, when viewed in isolation,
would not necessarily be sufficient to find that Uthman was functionally part of Al Qaeda, it ruled
that when the evidence proffered by the government was considered in totality, “Uthman’s actions
and recurrent entanglement with al Qaeda show that he more likely than not was part of al
Qaeda.”
The Supreme Court declined to review the decision.
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Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011), cert. denied, 132 S. Ct.
2739 (2012)
In Al-Madhwani, a three-judge appellate panel reviewed and affirmed a lower court dismissal of a
habeas petition by a Guantanamo detainee. Madhwani argued that the government provided
insufficient evidence to demonstrate that he was subject to detention under the AUMF, and also
alleged that the district court had improperly considered evidence outside the record and had
committed procedural errors. The petitioner also claimed that he had been tortured by U.S.
authorities prior to his transfer to Guantanamo, and argued that statements he made to military
authorities at Guantanamo were tainted by his earlier coercion.
In upholding the district court’s denial of habeas, the circuit panel found it unnecessary to reach
Madhwani’s challenge that certain evidence had been tainted by undue coercion, as there was
sufficient evidence untainted by these claims to support the district court’s decision. The panel
noted that the district court had considered 260 exhibits and held a four-day merits hearing during
which petitioner himself testified for over one day, and discounted “a substantial portion” of the
government’s evidence based on a finding that it was tainted by mistreatment suffered by
petitioner prior to his transfer to Guantanamo. The panel found the evidence considered by the
lower court, including incriminating testimony by Madhwani in testimony, provided sufficient
grounds to support the government’s determination that he was “part of” Al Qaeda. This evidence
included admissions by Madhwani of his stay at an Al Qaeda-affiliated guest house and military
training camp; his admission to carrying a rifle at the behest of camp superiors, his “suspicious”
travel after departing the camp with recruits and “implausible” explanation for his travel; and the
circumstances of his final capture in the company of at least one known Al Qaeda operative.
The panel also rejected several other legal and evidentiary arguments made by Madhwani,
including certain arguments that had been previously rejected by the D.C. Circuit, including his
claim that hearsay evidence could only be admitted in wartime detention cases if it fell within an
exception recognized under the Federal Rules of Evidence.
The Supreme Court declined to review the case.
Almerfedi v. Obama, 654 F.3d 1 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739
(2012)
In Almerfedi, a three-judge panel of the D.C. Circuit considered the government’s appeal of a
district court ruling granting habeas relief to a Guantanamo detainee whom the government
claimed had acted as a facilitator for Al Qaeda. The government based its claim primarily upon
admissions made by habeas petitioner Almerfedi himself, as well as statements made by another
Guantanamo detainee. The district court concluded, however, that Almerfedi’s statements did not
demonstrate by a preponderance of the evidence that Almerfedi was “part of” Al Qaeda. It also
declined to consider the testimony of the fellow Guantanamo detainee, concluding that it was
unreliable. The circuit panel reversed and remanded with instructions to the lower court to deny
Almerfedi’s habeas petition.
The circuit court’s ruling did not clearly pronounce any new legal standards governing
consideration of detainees’ habeas claims (though the majority opinion reiterated the suggestion
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made in Al-Adahi that the government might be able to support the detention of a person using a
lower standard than one based on the preponderance of evidence).36 However, some have viewed
the decision as significant because the court implied that the government’s evidence was not as
compelling as evidence proffered in prior cases reviewed by the D.C. Circuit, and might signify
“the minimum amount of evidence” necessary to demonstrate under a preponderance of evidence
standard that an individual was lawfully detained.37
The government’s contention that Almerfedi served as a facilitator for Al Qaeda was based on
several factors. By Almerfedi’s own admission, he had travelled from Yemen to Pakistan in 2001,
where he stayed for more than two months at the headquarters of Jama’at Tablighi, an Islamic
missionary organization designated by U.S. intelligence as a Terrorist Support Entity closely
aligned with Al Qaeda. He subsequently travelled to Iran, where he admitted staying for over a
month before being arrested by Iranian authorities with at least $2,000 cash in his possession. The
government further claimed, based on statements Almerfedi allegedly made to another
Guantanamo detainee named al-Jadani, that while Almerfedi was in Iran he stayed at an Al Qaeda
guest house in Tehran. Al-Jadani also claimed that other, unnamed Guantanamo detainees had
informed him that a “Hussain al-Aden” acted as an Al Qaeda facilitator at the Tehran guesthouse,
and the government believed that “Hussain al-Adeni was the same person as Almerfedi because
the nisha ‘al-Adeni’ means ‘from Aden,’ which is [the Yemeni city] where Almerfedi is from.”38
For his part, Almerfedi denied that he had ever stayed at an Al Qaeda guesthouse or served as a
facilitator, and noted that the dates when al-Jadani claimed he stayed at the guesthouse were
obviously incorrect, because it was undisputed that Almerfedi had been arrested by Iranian
authorities at least a year earlier. Almerfedi alleged that he had left Yemen in order to seek a better
life in Europe. He claimed to have travelled to Pakistan because it would be easier to obtain a visa
there, and that he stayed with Jama’at Tablighi in the hope that he could take advantage of the
travel discounts they offered members (even though he denied ever being a member of the
organization). He further alleged that his subsequent travel to and stay in Iran were part of a failed
attempt to be smuggled into Europe.
Examining the record, the circuit court concluded that “the government’s evidence, combined
with Almerfedi’s incredible explanations” provided sufficient grounds to detain Almerfedi even
without consideration of al-Jadani’s statements. The court noted that Almerfedi’s stay at the
headquarters of Jama’at Tablighi was “probative, by itself it presumably would not be sufficient
to carry the government’s burden because there are surely some persons associated with Jama'at
Tablighi who are not affiliated with al-Qaeda.”39 However, when this fact was considered along
with Almerfedi’s travel route, which the court described as being “quite at odds with his professed
desire to travel to Europe,” in addition to the circumstances of Almerfedi’s capture with at least
$2,000 of unexplained cash in his possession, the government’s case that Almerfedi acted as an Al
Qaeda facilitator “was on firmer ground.” Further, the circuit panel found that although the lower
court had recognized Almerfedi’s explanation of his activities as “perplexing” and unconvincing,
it erred by failing to assess these “false exculpatory statements” as amounting to evidence in
favor of the government’s position, as the D.C. Circuit had held in Al-Adahi.
36 Almerfedi v. Obama, 654 F.3d 1, 5 n.4 (D.C. Cir. 2011).
37 Id. at 4 (claiming that [T] the government’s evidence may well have been stronger in previous cases than in this case.
But that is irrelevant; all of those cases were not close.”).
38Id. at 3.
39 Id. at 6.
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While finding that the admission of al-Jadani’s statements was unnecessary for the government to
satisfy the evidentiary burden justifying Almerfedi’s detention, two panel members nonetheless
concluded that the lower court clearly erred in ruling these statements as unreliable “jail house
gossip.” The district court had rejected al-Jadani’s statements at least in part because al-Jadani
alleged that Almerfedi told him that he was at an Al Qaeda guesthouse in 2002 or 2003, though
Almerfedi had already been taken into custody by that time. The majority of the circuit panel
believed, however, that al-Jadani’s “timing confusions were inconsequential,” because the correct
date of Almerfedi’s capture had been given in some reports of al-Jadani’s interrogations by U.S.
authorities, and al-Jadani’s reliability had been established via a classified government declaration
which buttressed many of his statements regarding Al Qaeda guesthouses in Iran. The majority of
the panel also believed that the district court erred when it failed to assess al-Jadani’s recounting
of conversations with unnamed detainees that implicated Almerfedi. The panel majority viewed it
as “quite understandable that al-Jadani would be reluctant” to identify these detainees to U.S.
authorities. Moreover, the panel majority found it significant that al-Jadani knew specific details
regarding the capture of a “Hussain al-Aden” by Iranian authorities and his subsequent transfer
first to Afghan and then to U.S. custody. The panel majority characterized the circumstances as
matching “Almerfedi’s unique experiences and therefore mak[ing] clear that Hussain Almerfedi
and Hussain al-Adeni are the same man,” buttressing the credibility of al-Jadani and that of the
unnamed detainees who purportedly identified Almerfedi as an Al Qaeda facilitator.
Writing separately, D.C. Circuit Judge Judith W. Rogers concurred with the panel majority in its
ruling that the government had satisfied the evidentiary burden needed to support Almerfedi’s
detention. However, Judge Rogers disagreed with the majority’s analysis of the recorded
statements of al-Jadani. The district court’s determination that al-Jadani’s statements were
unreliable was a factual one that could only be reversed for clear error, and an examination of the
record evidenced did “not lead to a ‘firm conviction’ that the district court’s analysis of al-
Jadani’s statements was mistaken, much less implausible.”
The Supreme Court declined to review the circuit court’s decision.
Al Alwi v. Obama, 653 F.3d 11 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739 (2012)
In this case, a circuit panel found that although the corroboration of hearsay statements has
proved useful to establish their reliability, corroboration of statements made by the petitioner
himself during interrogations is not necessary to find that he is lawfully detained. The district
court had sustained Al Alwi’s detention based on admissions he made during interrogation that
established he had traveled to Afghanistan to join the fight against the Northern Alliance, had
stayed in at least three guesthouses associated with enemy forces, received military training and
participated in hostilities against the Northern Alliance, and was part of a unit that was bombed
by U.S. forces in late 2001.40 Al Alwi sought to have the denial of his habeas petition reversed on
the basis that his statements were insufficiently corroborated by other evidence, which he argued
was required under the “corroboration rule” applicable in criminal trials. The appellate court
expressed skepticism that such a rule still exists in the criminal context, but regarded it as
irrelevant to habeas proceedings,41 where other indicia of reliability could satisfy the requirement
to assess the probative value of such statements. In this case, the interrogation reports were found
40 Al Alwi v. Obama, 653 F.3d 11, 16-17 (D.C. Cir. 2011).
41 Id. at 18-19.
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to be sufficiently reliable because Al Alwi’s statements were consistent and he did not contend
that he gave false answers during any specific session due to the coercive interrogation methods
he alleged were used. Moreover, the government did submit evidence other than the petitioner’s
statements to demonstrate the connection between the admissions and inferences that could be
drawn from them (i.e., such conduct was typical of Taliban and Al Qaeda recruits).42
The appellate court declined to review the petitioner’s argument that his detention was no longer
lawful because the “associated force” of which he was allegedly a member is no longer engaged
in hostilities, stating that he had failed to raise the argument before the lower court and that there
was sufficient evidence to establish he was a part of the Taliban or Al Qaeda.43 The court also
rejected Al Alwi’s argument that the government must prove not only that he was “part of” Al
Qaeda or the Taliban, but also that he “substantially supported” one of those entities. Although the
district court had not squarely addressed whether Al Alwi was a part of any group of combatants,
the appellate court found that enough facts had been established for it to make that determination
on review, without remanding the case for further finding of fact. Finally, the circuit panel
rejected the petitioner’s contention that the district court’s denial of his unopposed request for a
30-day continuance amounted to an abuse of discretion. He had asked for extra time because he
had been unable to meet with his attorneys due to his having begun a hunger strike, but the court
denied the request because Al Alwi was himself responsible for the delay. While the appellate
court agreed that the denial of Al Alwi’s request was difficult to understand in light of the fact that
the district court had granted the government a similar continuance without objection, it stated
that the petitioner must be able to demonstrate actual prejudice from the denial, which he had
failed to do. The district judge had permitted his attorneys to submit an amended response, and at
any rate, according to the panel, it could not be demonstrated that 30 days would have made an
appreciable difference given the amount of time his counsel had been working with him through
the CSRT and habeas proceedings.
The Supreme Court declined to accept an appeal of the case.
Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011), 677 F.3d 1175 (reissued), cert.
denied, 132 S. Ct. 2741 (2012)
In this case a three-judge circuit panel reviewed a district court ruling granting the habeas petition
of a Guantanamo detainee whom the government claimed was subject to detention under the
AUMF. The district court had found that the government failed to satisfy its evidentiary burden to
demonstrate its allegation that Latif, a Yemeni national who had travelled to Afghanistan and was
subsequently captured in Pakistan, had fought with the Taliban and was subject to detention. In a
2-1 decision, the panel vacated the district court’s ruling and remanded the case for further
proceedings.44 The panel’s published decision was initially heavily redacted, but much of the
discussion centered on classified government intelligence documents that served as the primary
evidentiary basis supporting the government’s allegations. The opinion was later reissued with
fewer redactions.45
42 Id. at 20.
43 Id. at 18 n.7.
44 Latif v. Obama, 666 F.3d 746, 750-751 (D.C. 2011).
45 677 F.3d 1175 (D.C. Cir. 2012).
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The panel majority found that the district court erred by not affording a “presumption of
regularity” to the intelligence documents proffered by the government, and that Latif had not
presented evidence to satisfactorily rebut the presumption that the intelligence documents
accurately recorded the statements made therein.
The controlling opinion in Latif, written by Judge Brown, described the presumption of regularity
as applicable to “the official acts of public officers and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged their official duties.” Judge Brown
distinguished a presumption of regularity from a presumption of truthfulness, and suggested that
confusion over the distinction might explain the prior reluctance of lower courts to accord a
presumption of regularity to government intelligence documents:
The confusion stems from the fact that intelligence reports involve two distinct actors—the
non-government source and the government official who summarizes (or transcribes) the
source’s statement. The presumption of regularity pertains only to the second: it presumes
the government official accurately identified the source and accurately summarized his
statement, but it implies nothing about the truth of the underlying non-government source’s
statement. There are many conceivable reasons why a government document might
accurately record a statement that is itself incredible. A source may be shown to have lied,
for example, or he may prove his statement was coerced. The presumption of regularity—to
the extent it is not rebutted—requires a court to treat the Government’s record as accurate; it
does not compel a determination that the record establishes what it is offered to prove.46
The majority characterized the application of a presumption of regularity to intelligence
documents as being supported by separation of powers principles; because “courts have no
special expertise in evaluating the nature and reliability of the executive branch’s wartime record
... it is appropriate to defer to executive branch expertise.”47 The majority also noted that this
presumption regularly given to government documents in other contexts, including in ordinary
criminal cases. It also discussed prior D.C. Circuit rulings which it characterized as being
consistent with or lending support to the panel’s holding.
Reviewing the evidence before the district court, the panel majority found that the intelligence
report proffered by the government, if reliable, provided sufficient evidence to demonstrate the
lawfulness of Latif’s detention. Because the majority held that this report was entitled to a
presumption of regularity, and because Latif “challenge[d] only the reliability of the Report,” the
majority found that it could only uphold the district court’s grant of habeas if Latif was able to
rebut the government’s evidence “with more convincing evidence of his own.”48 The majority
found that he had not done so, and in addition, it found that the district court had failed to
consider properly relevant evidence in assessing Latif’s credibility, including the similarity
between Latif’s travel route and that commonly used by Al Qaeda and Taliban fights, as well as
potentially incriminating statements that he made. The panel remanded the case back to the
district court for further consideration of the evidence.
46 Id. at 1180.
47 Id. at 1182.
48 Id. at 1185. The panel majority expressly declined to “decide precisely how much more the detainee must show to
overcome the presumption of regularity.” Id. at 1186 n5.
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Judge Henderson wrote a separate concurrence to the panel decision, agreeing with the
controlling opinion’s analysis but arguing that remand was unnecessary and that the panel should
have simply reversed the lower court’s grant of habeas.
Writing in dissent, Judge Tatel argued that the district court’s factual findings were subject to a
deferential clear error standard of review, and that employing this standard would have resulted in
affirming the lower court’s grant of habeas. He also disputed the majority’s holding that a
presumption of regularity should apply to government intelligence documents in habeas cases. He
characterized the presumption as typically being applied to those government documents which
are “familiar, transparent, generally understood as reliable, or accessible.” Judge Tatel argued that
presumption should not apply to intelligence documents of the kind at issue here, which “was
produced in the fog of war by a clandestine method that we know almost nothing about.” He
further expressed fear that application of this presumption would in practice come “perilously
close to suggesting that whatever the government says must be treated as true.... ”49
The Supreme Court denied certiorari to review the Latif decision.50
Al Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013)
Mukhtar Al Warafi denied that he was part of the Taliban, and argued that even if he were a part
of the organization, he was not lawfully subject to detention because he served “permanently and
exclusively as ‘medical personnel’” within the meaning of the Geneva Conventions and their U.S.
Army implementing regulations, AR 190-8.51 Article 24 of the First Geneva Convention52
provides protections to full-time medical personnel, and Article 28 directs that they “shall be
retained only insofar as the state of health, the spiritual needs and the number of prisoners of war
require.” The Army Regulation implements the Geneva Conventions provisions concerning the
detention of “retained personnel,” including medical personnel. Although Congress included a
provision in Section 5 of the Military Commissions Act of 200653 stating that detainees may not
invoke the Geneva Conventions in a habeas proceeding, the three-judge panel found the detainee
may nevertheless invoke the Army Regulation implementing them. However, the district court
found the detainee had failed to prove his status as a medic, inasmuch as he lacked the
identification card and armlet bearing the distinctive emblem required elsewhere under the First
Geneva Convention for medical personnel.54 The petitioner argued that it should remain open to
him to prove his status by other means, but the circuit court agreed with the court below that
because the Taliban failed to provide medical personnel the required means of identification, such
personnel are not entitled to the special protections described in Article 24. Al Warafi’s detention
was affirmed.
49 Id. at 1215 (Tatel, J., dissenting) (quoting Parhat v. Gates, 532 F.3d 834, 849 (D.C. Cir. 2008)).
50 132 S. Ct. 2741 (2012).
51 Army Regulation (AR) 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees
(1997).
52 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
(August 12, 1949), 6 U.S.T. 3114 (“First Geneva Convention”).
53 Al Warafi v. Obama, 821 F. Supp. 2d 47 (D.D.C.2011).
54 P.L. 109-366.
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Hussain v. Obama, 718 F.3d 964 (D.C. Cir. 2013), cert. denied, 572 U.S. ___
(April 21, 2014)
The petitioner in this case was a teenager when he was captured in Pakistan after spending time
with Taliban soldiers near the front in Afghanistan as well as in a series of mosques run by an
organization associated with Al Qaeda. He argues that he never took part in hostilities and was
never part of the command structure of the Taliban or Al Qaeda. The district court found that he
was nevertheless part of the Taliban or Al Qaeda.55 He appealed. The D.C. Circuit affirmed, with
two of the judges invoking at one point the “walks like a duck test” to approve the lower court’s
reasoning.56 They found the undisputed facts of the case coupled with the petitioner’s
unpersuasive explanations for them to support a finding that the petitioner was more likely than
not a member of the Taliban or Al Qaeda, making his detention lawful under the AUMF.
Senior Circuit Judge Edwards wrote a concurring opinion conceding that the evidence was
sufficient under circuit precedent to support detention. He objected, however, that the evidence
adduced did not in his view meet the preponderance of the evidence standard the court has said it
employs. He would have required the government to provide positive evidence that Hussain fit
within the AUMF standard at the time of his capture.
The Supreme Court declined to review the decision. Justice Breyer concurred in the denial of
certiorari, but indicated his vote might have been different had the petitioner asked for review on
the claim that he was not an “individual who ... was part of or supporting forces hostile to the
United States or coalition partners in Afghanistan and who engaged in an armed conflict against
the United States there” pursuant to the Hamdi case.57
Transfer and Release of Detainees
The D.C. Circuit has also considered a number of cases involving issues related to the transfer or
release of Guantanamo detainees. Some of these cases concern the remedy available to persons
whom a reviewing court has determined to be unlawfully held, but who cannot be resettled or
repatriated to a foreign country in the near future due to legal or practical obstacles.58 Other cases
involve challenges by detainees to their impending transfer to a specific foreign country, where
detainees claim that they would be tortured or unlawfully detained by the government of the
receiving country. The D.C. Circuit has also indicated that it is highly unlikely that a detainee
may challenge his designation as an enemy combatant after being released from U.S. custody and
transferred to a foreign country.
55 Hussein v. Obama, 821 F. Supp. 2d 67 (D.D.C. 2011).
56 Hussain v. Obama, 718 F.3d 964, 968 (D.C. Cir. 2013) (remarking that “[e]vidence that Hussain carried an assault
rifle given him by Taliban forces while living among Taliban forces near a battle line fought over by Taliban forces
brings to mind the common sense view in the infamous duck test.”) (citing Dole v. Williams Enterprises, Inc., 876 F.2d
186, 188 n. 2 (D.C. Cir. 1989) (adopting the “now-infamous ‘duck-test,’ dressed up in appropriate judicial garb:
‘WHEREAS it looks like a duck, and WHEREAS it walks like a duck, and WHEREAS it quacks like a duck, WE
THEREFORE HOLD that it is a duck.’”)).
57 Hussain v. Obama, 572 U.S. ___ (April 21, 2014) (Breyer, J., statement respecting denial of certiorari).
58 For discussion of U.S. policy relating to the transfer or release of Guantanamo detainees to foreign countries, see
CRS Report R40139, Closing the Guantanamo Detention Center: Legal Issues, by Michael John Garcia et al.
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Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (“Kiyemba I”), vacated,
559 U.S. 131 (2010), reinstated as amended, 605 F.3d 1046 (D.C. Cir. 2010)
(“Kiyemba III”), cert. denied, 131 S. Ct. 1631 (2011)
In October 2008, a federal district court ordered the release into the United States of several
Guantanamo detainees who were no longer considered enemy combatants but who could not be
returned to their home country (China) because of the likelihood they would be subjected to
torture there, finding that the political branches’ plenary authority in the immigration context did
not contravene the petitioners’ entitlement to an effective remedy to their unauthorized
detention.59 However, the D.C. Circuit panel stayed the district court’s order pending appellate
review,60 and subsequently reversed the district court’s decision in the case of Kiyemba v. Obama
(“Kiyemba I”), decided in February 2009. The majority held that although the constitutional writ
of habeas enables Guantanamo detainees to challenge the legality of their detention, habeas courts
lack authority (absent the enactment of an authorizing statute) to compel the transfer of a non-
citizen detainee into the United States, even if that detainee is found to be unlawfully held and the
government has been unable to effectuate his release to a foreign county. The Kiyemba I panel’s
decision was primarily based on long-standing jurisprudence in the immigration context which
recognizes that the political branches have plenary authority over whether arriving aliens may
enter the United States. The majority of the panel also found that Guantanamo detainees were not
protected by the Due Process Clause of the Constitution, as they are non-citizens held outside the
U.S. and lack significant ties to the country.
As discussed supra, the Supreme Court granted certiorari to review the Kiyemba ruling, and
subsequently vacated the appellate court’s opinion and remanded the case in light of the fact that
several countries had thereafter agreed to resettle the petitioners. In May 2010, the D.C. Circuit
panel reinstated its earlier opinion, as modified to take into account subsequent congressional
enactments limiting the use of funds to release any Guantanamo detainee into the United States
(the panel’s reinstatement is commonly referred to as “Kiyemba III,” to distinguish it from the
Circuit panel’s initial ruling and an intervening case also entitled Kiyemba v. Obama). The
Supreme Court declined to review Kiyemba III.
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“Kiyemba II”), cert. denied,
559 U.S. 1005 (2010)
In another case entitled Kiyemba v. Obama (commonly referred to as “Kiyemba II”), a D.C.
Circuit panel considered habeas petitions by detainees who were no longer considered enemy
combatants, and who sought to prevent their transfer to any country where they would likely face
further detention or torture. The Kiyemba II panel rejected the government’s argument that the
MCA stripped the court of jurisdiction to hear claims related to the petitioners’ proposed transfer.
The panel interpreted Boumediene as invalidating the MCA’s court-stripping provisions with
respect “to all habeas claims brought by Guantanamo detainees, not simply with respect to so-
called ‘core’ habeas claims” relating to the legality of the petitioners’ detention. However, the
panel held that an executive branch determination that a detainee will not be tortured if
transferred to a particular country is binding on the court, and a habeas court may not second-
guess this assessment. The circuit panel also reversed a district court ruling that required the
59 In re Guantanamo Bay Detainee Litigation, 581 F. Supp. 2d 33 (D.D.C. 2008).
60 Kiyemba v. Bush, No. 08-5424, 2008 WL 4898963, Order (D.C. Cir., October 20, 2008) (per curiam).
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government to provide 30 days’ notice to detainees’ counsel before any proposed transfer. As a
result of this ruling, the detainees’ ability to challenge their proposed transfer from Guantanamo
may be quite limited. On March 22, 2010, the Supreme Court denied a petition for writ of
certiorari to review the appellate court’s ruling.
The Kiyemba II decision has been relied upon by the D.C. Circuit in subsequent rulings
concerning detainees’ right to challenge the Executive’s determination that they would not face
torture if transferred to a particular country and receive advance notice of their proposed transfer.
Some of these cases are the subject of ongoing litigation.
Gul v. Obama, 652 F.3d 12 (D.C. Circ. 2011), cert. denied, 132 S. Ct. 1906 (2012)
This case involved two former Guantanamo detainees who sought to challenge their designation
as “enemy combatants” by the U.S. government, despite the fact that they were no longer in U.S.
custody. Following the detainees’ transfer to foreign government custody, the lower court
dismissed their habeas petitions as moot. The detainees appealed to the D.C. Circuit, arguing that
dismissal was improper and that they had suffered collateral consequences even after leaving U.S.
custody because of their enemy combatant designation.
The three-judge panel upheld the lower court’s dismissal. The court held that even assuming that
courts may retain habeas jurisdiction over former detainees who suffer collateral consequences as
a result of their detention, the consequences identified by the petitioners did not constitute the
kind of injuries sufficient to give the court jurisdiction. Although petitioners claimed that their
designation as enemy combatants caused the countries to which they were transferred to restrict
their travel, the Gul panel did not find this to be an injury redressible by the court, because the
restrictions were imposed by the foreign governments rather than the United States. The panel
also was not persuaded by petitioners’ claim that they suffered a cognizable injury because their
“enemy combatants” designation barred their travel to the United States. As an initial matter, the
panel noted that there was no evidence that petitioners actually wanted to enter the United States.
Moreover, the court ruled that even the plaintiffs’ designation as enemy combatants was
rescinded, this would not remove the barriers to U.S. travel; by statute, all Guantanamo detainees
were placed on the government’s “no fly” list, regardless of enemy combatant status, and U.S.
immigration law’s restrictions on the admission of aliens posing security risks was not dependent
upon an enemy combatant designation. The panel also deemed petitioners’ claim that their
designation meant that they remained subject to possible targeting by the United States as “the
most speculative [claim] of all,” as the petitioners had “no basis whatsoever for believing” the
government might still pursue them after releasing them from custody. Finally, the court found
that binding precedent foreclosed consideration of petitioners’ argument that they suffered a
cognizable injury on the basis of the stigma caused by their designation.
The Supreme Court declined to review the case.
Other Notable Rulings
Besides the rulings discussed above, the appellate court for the D.C. Circuit has also issued
opinions on several other distinct issues related to U.S. detention policy. These rulings have
involved issues including, inter alia, the continuing application of the judicial review procedures
established under DTA following the Supreme Court’s ruling in Boumediene v. Bush; the ability
of former Guantanamo detainees to bring civil suit against U.S. officials based on the detainees’
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allegedly wrongful treatment while in U.S. custody; the application of the constitutional writ of
habeas to persons held by the United States in foreign locations other than Guantanamo; and the
ability of detainees to seek redress for what they view as wrongful conditions of confinement.
Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)
In June 2008, a three-judge panel of the D.C. Circuit ruled in the case of Parhat v. Gates that the
petitioner had been improperly deemed an “enemy combatant” by a Combatant Status Review
Tribunal (CSRT), the first ruling of its kind by a federal court. The ruling, which occurred prior to
the Supreme Court’s decision in Boumediene, was made under the judicial review process that
had been established by the DTA. Although the D.C. Circuit has since held that the DTA review
process is no longer in effect, the Parhat decision continues to be cited within the D.C. Circuit for
its holding that evidence presented by the government must be in a form that permits a reviewing
court to assess its reliability.61
The petitioner in Parhat, an ethnic Chinese Uighur captured in Pakistan in December 2001, was
found by a CSRT to be subject to detention on account of his affiliation with a Uighur
independence group known as the East Turkistan Islamic Movement (ETIM), which was
purportedly “associated” with Al Qaeda and the Taliban and engaged in hostilities against the
United States and its coalition partners (the petitioner denied membership in the ETIM). The
Parhat panel found that the evidence presented by the government to support its claims regarding
the ETIM was insufficient to support the CSRT’s determination that Parhat was an enemy
combatant. Most significantly, the court found that the principal evidence presented by the
government regarding the ETIM being associated with Al Qaeda and the Taliban and engaged in
hostilities against the United States and its coalition allies—four government intelligence
documents describing ETIM activities and the group’s relationship with Al Qaeda and the
Taliban—did not “provide any of the underlying reporting upon which the documents’ bottom-
line assertions are founded, nor any assessment of the reliability of that reporting.”62 As a result,
the court found that neither the CSRT nor the reviewing court itself were capable of assessing the
reliability of the assertions made by the documents. Accordingly “those bare assertions cannot
sustain the determination that Parhat is an enemy combatant,”63 and the CSRT’s designation was
therefore improper. The circuit court stressed that it was not suggesting that hearsay evidence
could never reliably be used to determine whether a person was an enemy combatant, or that the
government must always submit the basis for its factual assertions to enable an assessment of its
claims. However, evidence “must be presented in a form, or with sufficient additional
information, that permits the [CSRT] and court to assess its reliability.”64
61 Indeed, the D.C. Circuit in Bismullah implied that, despite its determination that the DTA review process was no
longer available to detainees, the circuit court’s ruling in Parhat remained in force. Bismullah, 551 F.3d 1068, 1075, n.
2 (D.C. Cir. 2009). See also Bensayah v. Obama, 610 F.3d 718, 725-726 (D.C. Cir. 2010) (“In Parhat we made clear
that the reliability of evidence can be determined not only by looking at the evidence alone but, alternatively, by
considering ‘sufficient additional information … permit[ting the fact finder] to assess its reliability.’”); Ameziane v.
Obama, 620 F.3d 1 (D.C. Cir. 2010) (holding that district court had failed to properly apply Parhat in its consideration
of government motion to designate certain information as “protected” under the governing protective order), cert.
denied, 131 S. Ct. 1673 (2011).
62 Parhat v. Gates, 532 F.3d 834, 846-47 (D.C. Cir. 2008).
63 Id. at 847.
64 Id. at 849.
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The Parhat panel also denied without prejudice a government motion to protect from public
disclosure any nonclassified information raised in the litigation that the executive branch had
labeled “law enforcement sensitive,” along with names and identifying information of U.S.
personnel mentioned in the record. While the panel acknowledged that information falling under
both of these categories warranted protection from public disclosure, it characterized the
government’s argument for nondisclosure as being supported only upon “a generic explanation of
the need for protection, providing no rationale specific to the information actually at issue in this
case.” In particular, the panel faulted the government motion for failing either to “give the court a
basis for withholding” a specific category of information, or a basis upon which the court could
“determine whether the information it has designated properly falls within the categories it has
described.”65
Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009)66
This case concerned the continuing availability of DTA review procedures in light of the Supreme
Court’s ruling in Boumediene v. Bush that the constitutional privilege of habeas corpus extends to
non-citizen detainees held at Guantanamo. As discussed supra, following the Supreme Court’s
ruling in Gates v. Bismullah, the D.C. Circuit reinstated two earlier rulings concerning the scope
of judicial review of CSRT determinations available under the DTA. The government
subsequently petitioned for a rehearing of the case, arguing that the Supreme Court’s ruling in
Boumediene effectively nullified the review system established by the DTA, as Congress had not
intended for detainees to have two judicial forums in which to challenge their detention. The D.C.
Circuit granted the government’s motion for rehearing, and in Bismullah v. Gates, a three-judge
panel held that, in light of the Supreme Court’s ruling in Boumediene restoring detainees’ ability
to seek habeas review of the legality of their detention, the appellate court no longer had
jurisdiction over petitions for review filed pursuant to the DTA.
Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (per curiam), cert. denied,
558 U.S. 1091 (2009)
Four British nationals formerly detained at Guantanamo sued the Secretary of Defense and
various military officers for damages, alleging that their treatment while in U.S. military custody
violated their rights under the Fifth and Eighth Amendments to the Constitution, the Geneva
Conventions, and other provisions of law. The district court dismissed the Bivens67 claims on the
basis of qualified immunity, holding that the officers could not reasonably be expected to have
anticipated that the plaintiffs, as aliens held overseas, would be entitled to rights under the U.S.
Constitution.68 The D.C. Circuit twice affirmed,69 interpreting Boumediene (on remand) as
65 Id. at 852-53. In Ameziane v. Obama, 620 F.3d 1 (D.C. Cir. 2010), the D.C. Circuit clarified that the government
need not provide a particularized explanation of the need to keep information protected with respect to a detainee, but
may provide a more generalized rationale with respect to a particular type of information and then demonstrate that the
information a detainee seeks to have released falls into that category.
66 A more detailed discussion of the Bismullah case is found in CRS Report RL33180, Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Michael John Garcia.
67 Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (providing for cause of action in
tort for violation of certain constitutional rights).
68 Rasul v. Rumsfeld, 414 F. Supp. 2d 26 (D.D.C. 2006).
69 Rasul v. Myers, 512 F.3d 644 (D.C. Cir. 2008) (“Rasul I”) was vacated by the Supreme court and remanded for
reconsideration in light of Boumediene. 129 S.Ct. 763 (2008) Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (“Rasul
(continued...)
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“disclaim[ing] any intention to disturb existing law governing the extraterritorial reach of any
constitutional provisions, other than the Suspension Clause,”70 which, in the circuit court’s view,
appears to mean that those detained at Guantanamo have no rights under the Constitution (other
than the right to petition for habeas corpus). It rested its holding, however, on its analysis of
qualified immunity under Bivens, agreeing with the lower court that even if the Constitution does
provide some protections to the plaintiffs, the defendants were protected by qualified immunity.
Even were this not so clear, the D.C. Circuit noted a “special factor” precludes extending a Bivens
remedy to plaintiffs; namely, the “[t]he danger of obstructing U.S. national security policy.”71
Having found that the claims for damages were barred by the Federal Tort Claims Act, the circuit
court did not address whether Boumediene’s holding invalidating Section 7 of the MCA
encompassed only the portion of the provision that stripped courts of jurisdiction over habeas
claims, or whether the language eliminating other causes of action against the government had
also been invalidated.72 Subsequently in Al-Zahrani v. Rodriguez, discussed infra, the D.C.
Circuit held that the language in the MCA eliminating causes of action other than habeas corpus
survived Boumediene. 73
Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), 899 F. Supp. 2d 10 (D.D.C. 2012)
(“Al Maqaleh II”), remanded in part and aff’d in part, Maqaleh v. Hagel,
738 F.3d 312 (D.C. Cir. 2013).
This case concerned the application of the constitutional writ of habeas corpus to non-citizens
detained by the United States in Afghanistan. In 2009, a federal district court ruled that the
constitutional writ of habeas may extend to non-Afghan detainees held in a U.S.-operated facility
in Bagram, Afghanistan, when those detainees had been captured outside of Afghanistan but were
transferred to Bagram for long-term detention as enemy combatants. The district court held that
the circumstances surrounding the detention of the petitioners in Maqaleh were “virtually
identical to the detainees in Boumediene—they are [non-U.S.] citizens who were ... apprehended
in foreign lands far from the United States and brought to yet another country for detention.”74
(...continued)
II”) reinstated the earlier opinion but limited its scope to rest the holding on qualified immunity without adjudicating
the constitutional questions. The appellate court reversed a holding by the district court that would have enabled
plaintiffs to pursue claims based on the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§2000bb et seq.
70 Rasul II, 563 F.3d at 529.
71 Id. at 532 & n.5.
72 28 U.S.C. §2241(e)(2), provides that “[n]o court ... 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.”
73 Prior to this decision, district court judges appeared to have uniformly agreed that Boumediene only invalidated the
provision of the MCA stripping federal courts of habeas jurisdiction over Guantanamo detainees. See, e.g., Khadr v.
Bush, 587 F. Supp. 2d 225, 235-36 (D.D.C. 2009); In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 312, 314
(D.D.C. 2008); In re Guantanamo Bay Detainee Litig., 570 F. Supp. 2d 13, 18 (D.D.C. 2008)). See also Kiyemba v.
Obama, 561 F.3d 509, 512 n.1 (D.C. Cir. 2009) (in habeas case, noting that Boumediene “referred to §7 without
specifying a particular subsection of §2241(e) but its discussion of the Suspension Clause clearly indicates it was
referring only to that part of §7 codified at §2241(e)(1)”)).
74 Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009).
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A three-judge panel of the D.C. Circuit reversed and held that the constitutional writ of habeas did
not extend to non-citizens detained in the Afghan theater of war. In making this determination, the
circuit court applied factors listed by the Supreme Court in Boumediene as being relevant to
analysis of the writ’s extraterritorial application, namely, (1) the citizenship and status of the
detainee and the adequacy of the status determination process; (2) the nature of the site where the
person is seized and detained; and (3) practical obstacles inherent in resolving the prisoner’s
entitlement to the writ. According to the circuit panel, consideration of the first factor weighed in
favor of extending the writ of habeas to the petitioners, because the status determination process
employed in Afghanistan to determine whether persons were subject to detention afforded fewer
procedural protections than the process used at Guantanamo.75 However, the circuit panel found
that the application of the other two enumerated factors conclusively weighed against extending
the constitutional writ of habeas to non-citizens held at Bagram. In particular, the circuit panel
found that the degree and likely duration of U.S. control over Bagram were more limited than
U.S. control over Guantanamo. The panel also found that significant practical obstacles would be
inherent in attempting to resolve the habeas claims of Bagram detainees, including the petitioners’
location in an active theater of war. The court considered it pertinent that the Unites States held
persons at Bagram pursuant to a cooperative agreement with the Afghan government, and
suggested that extending constitutional protections to Bagram detainees could be disruptive to the
U.S.-Afghan relationship.
Although the Maqaleh panel held that the constitutional writ of habeas did not extend to persons
in petitioners’ situation, it suggested that its analysis might be different if evidence were presented
that the executive branch opted to transfer detainees into a theater of war to evade judicial review.
Relying on this statement, the Maqaleh petitioners sought a rehearing of their habeas claims. In
February 2011, a district court permitted the petitioners to amend their habeas complaint to take
into account new evidence that purportedly undercut the reasoning of the Maqaleh panel. The
petitioners argued before the district court that the U.S. plan to turn the Bagram prison facility to
Afghan control while retaining non-Afghan detainees in U.S. custody undermines the rationale
for the appellate decision and warranted a conclusion that habeas review should be available. The
district court was not persuaded, however, and granted the government’s motion to dismiss.76
The petitioners again appealed to the D.C. Circuit, which found that circumstances in Afghanistan
had not changed sufficiently to warrant a revisiting of “Al Maqaleh II” and denied the petitions.77
The three-judge panel unanimously rejected the invitation to create a new “manipulation of
detention site” factor for determining whether the Suspension Clause applies.78 The court
indicated that it might have been more receptive to considering such circumstances had the
petitioners been transferred from a place to which the writ of habeas runs to an area beyond its
reach. But the fact that the petitioners had all been arrested in Asia prior to their transfer to
75 After the district court’s initial ruling in Maqaleh, the DOD announced modifications to the administrative process
used to review the status of aliens held at Bagram, which would afford detainees greater procedural rights. The
modified process does not contemplate judicial review of administrative determinations regarding the detention of
persons at Bagram. See Letter from Phillip Carter, Dep. Asst. Sec. Defense for Detainee Policy, to Sen. Carl Levin,
Chairman of Sen. Armed Serv. Comm., July 14, 2009, available at http://www.scotusblog.com/wp/wp-content/uploads/
2009/09/US-Bagram-brief-9-14-09.pdf. The circuit panel stated that its analysis was not informed by these new
procedures, as those procedures were not in place when the case was appealed to the circuit court.
76 Maqaleh v. Gates, 899 F. Supp. 2d 10 (D.D.C. 2012), remanded in part and aff’d in part, 738 F.3d 312 (D.C. Cir.
2013).
77 Maqaleh v. Hagel, 738 F.3d 312 (D.C. Cir. 2013).
78 Id. at 336.
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another Asian country, albeit one in the midst of an armed conflict, did not raise any
constitutional concerns.79
Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012)
In Al-Zahrani, a three-judge panel of the D.C. Circuit upheld the dismissal of a civil suit brought
against federal officials by the fathers of two foreign nationals who had been detained as “enemy
combatants” at Guantanamo and died in U.S. custody. The circuit panel held that dismissal was
warranted under Section 7(a)(2) of the MCA, which stripped federal courts of jurisdiction over
non-habeas claims brought against the government concerning the detention of aliens designated
as “enemy combatants.” While the Supreme Court in Boumediene had struck down the MCA’s
bar on federal court jurisdiction over habeas claims, the Al-Zahrani panel recognized that the
MCA’s separate jurisdictional bar over non-habeas claims remained in effect. Although plaintiffs’
contended that Section 7(a)(2) was unconstitutional because it denied plaintiffs “a proper remedy
for violations of their constitutional rights.” The panel rejected this claim because the only
remedy that plaintiffs sought was money damages, and “such remedies are not constitutionally
required” and may be barred by statutory or common law immunities. The U.S. Court of Appeals
for the Ninth Circuit (Ninth Circuit) dismissed a civil lawsuit for damages by a former detainee
based on similar reasoning.80
Al Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014)
Appellant al Janko had been at Guantanamo for seven years prior to prevailing in his habeas
case.81 After his transfer, he sued the United States and a number of U.S. officials for his wrongful
detention and alleged mistreatment during his incarceration. The district court held it had no
jurisdiction to entertain his claims due to the MCA provision barring it from hearing non-habeas
claims relating to the treatment, trial, or transfer of persons held at Guantanamo. He appealed,
arguing that the MCA provision does not apply to him because he was found by the habeas court
to have been improperly detained. The D.C. Circuit affirmed the dismissal, finding that he was
indeed “an alien who is or was detained by the United States [who] has been determined by the
United States to have been properly detained as an enemy combatant,” even though a district
court had ordered him released. The unanimous three-judge panel interpreted the language
“determined by the United States” to refer to a determination made by the executive branch. Four
executive branch review tribunals had determined that al Janko was lawfully detained pursuant to
the AUMF. The contradictory determination by the district court when considering al Janko’s
habeas petition did not alter his status under the statute. Therefore, the jurisdiction-stripping
language of the MCA applied.
79 Id. at 335-37.
80 Hamad v. Gates, 732 F.3d 990 (9th Cir. 2013).
81 Al Ginco v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009).
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In re Guantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d 8
(D.D.C. 2012), appeal dismissed sub nom. Abdah v. Obama, 2013 WL 221445
(D.C. Cir. January 11, 2013)
Habeas counsel for Guantanamo detainees who had lost—or were not actively pursuing—their
habeas cases contesting detention brought this action to challenge the government’s plan to
condition the detainees’ right of access to counsel on counsel’s agreement to abide by a
Memorandum of Understanding (MOU). The court agreed with the petitioners that detainees’
access to counsel should continue to be governed by the Protective Order the court issued in 2008
to cover all Guantanamo detainee habeas cases. The Justice Department took the view that the
Protective Order expired with respect to a detainee once his case was terminated; that is, finally
adjudicated, withdrawn or dismissed. The judge, however, agreed with attorneys for the
detainees, who argued that continued privileged access to their clients was necessary to pursue
further petitions or otherwise vindicate their clients’ rights.
The government had represented to the court that the procedures in the MOU were, for all
practical purposes, the same as those in the Protective Order. The court, however, discerned a few
critical differences, chief among them that the MOU gave military authorities sole discretion to
permit counsel to visit their clients, leaving no role for the courts. While the terms of the
Protective Order were enforceable through the court, disputes regarding the MOU were to be
settled under the “final and unreviewable discretion” of the Commander of Joint Task Force-
Guantanamo Bay, with no written obligation to render a timely decision, and it expressly avoided
creating “any right or benefit enforceable at law or in equity” for detainees or their lawyers.
The court also noted that the Protective Order assumed that counsel for detainees have a “need to
know” classified information relevant to their cases, and permits the discussion of such
information with clients “to the extent necessary for [their] effective representation.” In contrast,
the MOU made no such presumption (“need to know” would be determined by the Department of
Defense Office of General Counsel) and required the attorneys to justify the need to view their
own work product created during the pendency of the habeas case in order to gain access to it.
The judge predicted such a requirement would cause lengthy delays and force attorneys to
divulge strategy to opposing counsel merely to review their own work. Moreover, the MOU
required counsel to seek permission from appropriate government personnel in order to share
information with one another.
The court explained its view that permitting the Executive to create its own counsel-access
provisions would “allow the Government to transgress on the Court’s duty to safeguard individual
liberty by ‘calling the jailer to account.’”82 The court also expressed puzzlement that the
government saw a need to replace the Protective Order, which had functioned smoothly for more
than four years without drawing complaints from either side. For its part, the government argued
that the vacuum left by the expiration of the Protective Order in inactive cases called for the new
rules, which led the court to observe that “when it comes to power, the Government, as much as
nature, abhors a vacuum.”83 The court, however, felt its own power was more than sufficient to
fill any perceived void, and reinstated the judicially created Protective Order.
82 In re Guantanamo Bay Detainee Continued Access to Counsel, 892 F. Supp. 2d 8**5, (D.D.C. 2012).
83 Id. at **6.
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Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014)
This case involves detainees who have or are engaged in voluntary hunger strikes and are thus
potentially subject to involuntary enteral feeding, a procedure described as painful in which the
detainee is strapped to a chair and given a nutritional supplement through a tube inserted through
the nose and down the esophagus. Petitioners sought to enjoin the procedure, arguing that they
have a constitutionally protected liberty interest in refusing unwanted medical treatment. Two
district court judges had dismissed the petitions for lack of jurisdiction,84 agreeing with the
government’s position that detainees may not challenge the force-feeding because Congress has
precluded suits challenging conditions of detention.
The D.C. Circuit reversed. According to the majority of the three-judge panel, when the Supreme
Court in Boumediene struck down Section 7 of the MCA insofar as it suspended habeas
jurisdiction with respect to persons detained pursuant to the AUMF, the net effect was to return
the habeas statute to its previous state, while continuing to deny jurisdiction over non-habeas
claims involving Guantanamo detainees. In the D.C. Circuit, the majority held, the habeas corpus
statute is a permissible avenue to challenge conditions of confinement, even if the petitions are
brought by Guantanamo detainees. Whether Congress had intended to or could constitutionally
suspend “non-core” habeas claims of the type under consideration was unnecessary to decide.
According to the court, Congress could have passed a new law after Boumediene to restrict
Guantanamo habeas petitions to only challenges regarding the legality of the detention itself and
not to permit challenges to conditions of detention, but it had not done so. The majority found
itself bound by circuit precedent, including the decision in Kiyemba II, to accord jurisdiction.
Senior Circuit Judge Williams dissented from this reasoning. He would have found circuit
precedent to be less clear on the jurisdictional point, and would have given effect to Congress’s
apparent intent to restrict legal challenges by detainees involving the conditions of their
detention.85
Turning to the merits of the petition, the circuit court denied petitioners’ motion for a preliminary
injunction. The petitioners were unlikely to prevail in their case, according to the court, because
the force-feeding of detainees could be said to further the government’s legitimate penological
interest in preserving the lives of persons in its lawful custody and in maintaining security and
discipline at the detention facility. The petitioners will have the opportunity to demonstrate to the
lower court facts that might establish that the government’s interests are reduced or that there are
alternative measures the government might adopt to achieve them.
Rulings by the Fourth Circuit Court of Appeals
Although most judicial activity concerning U.S. detention policy has occurred in the D.C. Circuit,
a few notable cases have been decided in the Fourth Circuit Court of Appeals. Each case
84 Aamer v. Obama, 953 F. Supp. 2d 213 (D.D.C.2013); Dhiab v. Obama, 952 F. Supp. 2d 154 (D.D.C. 2013).
85 Aamer v. Obama, 742 F.3d 1023, 1044 (D.C. Cir. 2014) (Williams, J., dissenting). In another case following Aamer
on the holding regarding conditions of detention, two judges of a three-judge panel indicated they would have
dismissed the challenge for lack of jurisdiction in line with Judge Williams’s dissent in Aamer. Abdullah v. Obama,
2014 WL 1329154 at *5 (D.C. Cir., April 4, 2014) (Randolph, J., concurring). (Judge Williams was the third member
of the panel, but did not join the concurrence).
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concerned the military detention of a U.S. person within the United States—one a U.S. citizen
and the other an alien lawfully admitted into the country on a student visa—following the
Executive’s determination that the person was an unlawful enemy combatant. In each case, the
individual was ultimately transferred to civilian custody, and thereafter tried and convicted for
terrorism-related activity. Nonetheless, it is possible that the circuit court’s analysis of the scope
of Executive detention authority may inform subsequent judicial rulings on the matter.
Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005)
After the Supreme Court vacated an earlier ruling in his favor by the Second Circuit (see above),
Jose Padilla filed a new petition in the District Court for the District of South Carolina. The
district court granted Padilla’s motion for summary judgment and ordered the government to
release him from military detention, while suggesting Padilla could be kept in civilian custody if
charged with a crime or determined to be a material witness.86 Padilla’s attorneys had based their
argument on the dissenting opinion of four Supreme Court Justices, who would have found
Padilla’s detention barred by the Non-Detention Act, 18 U.S.C. §4001(a), and the language in
Hamdi seemingly limiting the scope of detention authority under the AUMF to combatants
captured in Afghanistan. The government argued that Padilla’s detention was covered under the
Hamdi decision’s interpretation of the AUMF as an act of Congress authorizing his detention
because he is alleged to have attended an Al Qaeda training camp in Afghanistan before traveling
to Pakistan and then to the United States.87 The judge disagreed with the government, finding that
more express authority from Congress would be necessary and that the AUMF contains no such
authority. Accordingly, the court found Padilla’s detention barred by 18 U.S.C. §4001(a). The
court also disagreed that the President has inherent authority as Commander-in-Chief of the
Armed Forces to determine wartime measures.88
The Fourth Circuit Court of Appeals reversed, finding that Padilla, although captured in the
United States, could be detained pursuant to the AUMF because he had been, prior to returning to
the United States, “‘armed and present in a combat zone’ in Afghanistan as part of Taliban forces
during the conflict there with the United States.”89 As the Supreme Court again considered
whether to grant review, the government charged Padilla with conspiracy based on evidence
unrelated to the original “dirty bomb” plot allegations and petitioned for leave to transfer him
from military custody to a federal prison for civilian trial.90 The Court granted the government
86 Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005).
87 See Respondents’ Answer to the Petition for a Writ of Habeas Corpus at 2, Padilla v. Hanft, C/A No. 02:04 2221-
26AJ (D.S.C. filed 2004).
88 389 F. Supp. 2d at 690.
89 423 F.3d 386, 390-91 (4th Cir. 2005).
90 The government initially asked the Fourth Circuit to approve Padilla’s transfer and suggested it should vacate its
opinion, but the judges preferred to defer to the Supreme Court to make that determination. In rejecting the
government’s application, Circuit Judge Luttig (who has since stepped down from the bench) issued a harsh opinion
expressing disappointment at the government’s decision abruptly to abandon its position that national security
imperatives demanded Padilla’s continued military detention:
[A]s the government surely must understand, although the various facts it has asserted are not
necessarily inconsistent or without basis, its actions have left not only the impression that Padilla
may have been held for these years, even if justifiably, by mistake—an impression we would have
thought the government could ill afford to leave extant. They have left the impression that the
government may even have come to the belief that the principle in reliance upon which it has
detained Padilla for this time, that the President possesses the authority to detain enemy combatants
(continued...)
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permission to transfer Padilla91 and later denied certiorari.92 Padilla was found guilty and
sentenced to 17 years and three months’ imprisonment, the trial court having rejected his motion
to dismiss charges against him due to his alleged mistreatment at the hands of the military.93
Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008) (per curiam)94
In al-Marri, the Fourth Circuit sitting en banc considered whether the AUMF and the law of war
permit the detention of a resident alien alleged to have engaged in activities within the United
States in support of Al Qaeda, but who had not been part of the conflict in Afghanistan. Four of
the nine judges would have held that even if the allegations were true, al-Marri did not fit within
the legal category of “enemy combatant” within the meaning of Hamdi, and that the government
could continue to hold him only if it charged him with a crime, commenced deportation
proceedings, or obtained a material witness warrant in connection with grand jury proceedings (as
a majority of the original three-judge panel had found). A plurality of the fractured en banc court,
however, found that the AUMF and the law of war give the President the power to detain persons
who enter the United States as “sleeper agents” on behalf of Al Qaeda for the purpose of
committing hostile and war-like acts such as those carried out on 9/11 (although the judges did
not arrive at a common definition of “enemy combatant”). The case was remanded to the district
court for further consideration of the evidence to determine whether the government had
established that al-Marri was a sleeper agent.
The en banc panel also considered the evidentiary burden that the government would be required
to fulfill to detain al-Marri as an enemy combatant. In his controlling opinion, Judge Traxler
wrote that the lower court had erred in applying the relaxed evidentiary standards of Hamdi to
persons captured in the United States. While the Hamdi plurality suggested that hearsay evidence
might be sufficient to support detention of a person apprehended in combat zone, Judge Traxler
wrote that Hamdi does not establish a “cookie-cutter procedure appropriate for every alleged
enemy-combatant, regardless of the circumstances of the alleged combatant’s seizure or the actual
burdens the government might face in defending the habeas petition in the normal way.”95
However, he recognized that some relaxation of normal procedural safeguards may be warranted
if the government demonstrates the need for this relaxation on account of national security
interests and an undue burden that would result if it was compelled to produce more reliable
evidence.
(...continued)
who enter into this country for the purpose of attacking America and its citizens from within, can,
in the end, yield to expediency with little or no cost to its conduct of the war against terror—an
impression we would have thought the government likewise could ill afford to leave extant.
Padilla v. Hanft, 432 F.3d 582, 587 (4th Cir. 2005)(order).
91 Padilla v. Hanft, 546 U.S. 1084 (2006).
92 547 U.S. 1062 (2006).
93 United States v. Padilla, 2007 WL 1079090 (S.D. Fla. 2007) (unreported opinion). While one district court held
Padilla can pursue civil damages against a former government official for his treatment in military detention, Padilla v.
Yoo, 633 F. Supp. 2d 1005 (N.D. Cal. 2009), the Fourth Circuit has rejected a civil suit on the basis of qualified
immunity for the government officials involved, Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012)
94 For further discussion of al-Marri, see CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus
Challenges in Federal Court, by Jennifer K. Elsea and Michael John Garcia; CRS Report R42337, Detention of U.S.
Persons as Enemy Belligerents, by Jennifer K. Elsea.
95 al-Marri v. Pucciarelli, 534 F.3d 213, 221 (2008) (Traxler, J., concurring).
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After the Supreme Court granted review, the government brought charges against al-Marri in
federal court and asked the Court to dismiss the case as moot and to vacate the decision below,
which the Court agreed to do, leaving the applicability of the AUMF to persons captured in the
United States uncertain. Al-Marri pled guilty to conspiring to provide material support to
terrorists and was sentenced to eight and a half years in prison.
Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012), cert. denied,
132 S. Ct. 2751 (2012)
This 2012 decision concerned a civil suit brought by Jose Padilla and his mother against current
and former government officials based on Padilla’s prior military detention as an enemy
combatant (Padilla’s habeas challenge to military detention is discussed supra). The petitioners
sought a declaration that Padilla’s detention was unconstitutional, an order enjoining any future
designation as an enemy combatant, and nominal damages. The district court dismissed the suit,
and a three-judge circuit panel affirmed.
The panel construed all but one of petitioners’ claims to ask the judiciary to imply a cause of
action for constitutional violations by federal officials (i.e., a Bivens claim). The panel stated that
special factors “counsel judicial hesitation in implying causes of action for enemy combatants
held in military detention.”96 The Constitution designates the political branches with authority
over military affairs, with no comparable role accorded to the judiciary. According to the panel,
judicial involvement in such matters would “stray from the traditional subjects of judicial
competence,”97 and risk impingement upon the explicit constitutional responsibilities of the
political branches. The panel also characterized the judiciary as ill-equipped to administer a
Bivens remedy the case before it, as litigation would risk interrupting the military chain of
command by requiring members of the Armed Forces and their civilian superiors to testify about
each other’s decisions and actions, and could also interfere with military and intelligence
operations on a wide scale. Finally, the panel found that Padilla had “extensive opportunities to
challenge the legal basis for his detention”98 in prior habeas litigation, and the existence of
alternative avenues for protecting his interests counseled against recognition of a Bivens action.
In addition to his Bivens claims, Padilla also brought action under the Religious Freedom
Restoration Act (RFRA) for alleged burdens to his free exercise of religion that were caused by
his military detention. While not going so far as to absolutely rule that RFRA did not apply to
persons held in military detention, the panel found that there were “strong reasons for defendants
to believe that RFRA did not apply to enemy combatants,” and it was appropriate to recognize an
immunity defense in the present situation because “it would run counter to basic notions of notice
and fair warning to hold that personal liability in such an unsettled area of law might attach.”99
The panel also upheld the lower court’s ruling that Padilla lacked standing to seek an order
enjoining the government from designating him as an enemy combatant in the future. The panel
held that the lower court had properly found that Padilla suffered no real and immediate risk of
harm from this designation, as he was in the process of serving a long-term prison sentence due to
96 Lebron v. Rumsfeld, 670 F.3d 540, 548 (4th Cir. 2012).
97 Id.
98 Id. at 556.
99 Id. at 557.
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his criminal conviction for terrorist activities. Any additional reputational harm that Padilla
suffered on account of his designation as an enemy combatant was also deemed to be inadequate
to provide Padilla with standing.
The Supreme Court declined to review the case.
Other Citizen Detention Cases
Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013)
Although there are currently no persons detained in the United States under AUMF authority, the
plaintiffs in Hedges v. Obama100 were able to persuade a federal district court judge to issue a
preliminary injunction enjoining enforcement of Section 1021(b)(2) of the 2012 NDAA, which
includes among “covered persons” subject to detention under the authority of the AUMF: “A
person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces
that are engaged in hostilities against the United States or its coalition partners, including any
person who has committed a belligerent act or has directly supported such hostilities in aid of
such enemy forces.”101
The Hedges plaintiffs are a group of activists and journalists, including U.S. citizens and foreign
nationals, who sued the government arguing that the provision caused them to alter their lawful
conduct in order to avoid being subject to military detention without trial under the provision.102
The Obama Administration sought to deflect the lawsuit on the basis that Section 1021 of the
2012 NDAA does “nothing new,” but merely reaffirms detention authority conferred by the
AUMF as it has been practiced by the executive branch and affirmed by the D.C. Circuit.
Accordingly, the government urged the court to declare the plaintiffs to be without standing and
to dismiss the action.
The court rejected the argument that Section 1021 is merely an affirmation of the AUMF that
does not change the law regarding detention, noting that to hold otherwise “would be contrary to
basic principles of legislative interpretation that require Congressional enactments to be given
independent meaning.”103 The court also noted differences in language describing the scope of
application in the two statutes that make the NDAA language seem broader, including the
addition of “substantial support” of Al Qaeda and the Taliban and the inclusion of “associated
forces” (who might not have had direct involvement in the 2001 terrorist attacks), as well as
mention of “direct support of hostilities” engaged in by any such groups against the United States
or its coalition partners.
Moreover, the court credited the plaintiffs’ fears as reasonable and concluded that the statute must
also be too vague to satisfy the Fifth Amendment’s requirement that a statute provide adequate
100 Hedges v. Obama, No. 12-CV-331, 2012 WL 1721124 (S.D.N.Y. May 16, 2012) (not reported).
101 For further discussion of Section 1021 of the 2012 NDAA, see CRS Report R42143, The National Defense
Authorization Act for FY2012 and Beyond: Detainee Matters, by Jennifer K. Elsea and Michael John Garcia.
102 For a more detailed description of the case, see CRS Report R42337, Detention of U.S. Persons as Enemy
Belligerents, by Jennifer K. Elsea.
103 Hedges at *2.
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notice regarding the nature of conduct to be avoided. Given the government’s representations that
Section 1021 does not add anything to previous law, the court presumed that a preliminary
injunction would not cause the government undue burdens.
The government moved for reconsideration of the court’s opinion with respect to the plaintiffs’
standing, stating that “law of war detention” does not apply to persons solely on the basis of
independent journalistic activities or independent public advocacy as described by the plaintiffs.
The court issued an order clarifying that the injunction applied nationwide.104
The U.S. Court of Appeals for the Second Circuit granted the government’s motion for a stay of
the injunction pending appeal and then reversed the lower court’s opinion,105 finding that both the
citizen and non-citizen plaintiffs lacked standing to bring the suit in the first place. The appellate
court explained that the NDAA provision has no bearing at all on whether U.S. citizens may
lawfully be detained pursuant to the AUMF. While the court did find the provision has relevance
with respect to non-citizens outside the United States, it held that the non-citizen plaintiffs had
failed to establish a sufficient reason to fear that the U.S. government would apprehend them and
subject them to military detention.
The court viewed the language of Section 1021 of the 2012 NDAA as entirely unambiguous. The
alleged contradiction between the provision purporting to reaffirm the AUMF yet adding new
criteria not found in the original was deemed to be a clarification as to how the AUMF applies to
organizations, and not just persons, deemed responsible for the 9/11 attacks. The court did not
agree that its interpretation meant that Section 1021 was no legal consequence. Rather, it
explained that the measure clarified what previously had been subject to much debate—whether
the Administration could detain those who were part of or substantially supported Al Qaeda, the
Taliban, and associated forces under the AUMF. The court further clarified why Sections 1021(d)
and 1021(e) are not duplicative. Section 1021(d) states that the provision does not expand or limit
the President’s authority to detain under the AUMF, and in the court’s view, is meant to clarify
that the authority to detain those who were part of or who substantially supported the enumerated
forces already existed under the AUMF. By contrast, Section 1021(e) “disclaims any statement
about existing authority,” whatever that authority may be.
The plaintiffs have asked the Supreme Court to review the decision.106
Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc)
This case was a suit for damages involving two U.S. citizens who were detained by U.S. forces in
Iraq as “security internees” after they were accused of conducting illicit arms sales. They asserted
they were whistle-blowers and that the accusations were retaliation against them for reporting
suspicious activity to the FBI. According to their complaint, they were held in solitary
confinement and denied access to counsel, interrogated under severely abusive conditions, and
denied due process before a Detainee Status Board. Neither was charged with a crime, and both
were eventually released. They brought suit against the Secretary of Defense at the time, Donald
Rumsfeld, and other officials they felt bore responsibility for their mistreatment.
104 Hedges v. Obama, 2012 WL 2044565 (S.D.N.Y. June 6, 2012) (not reported in F. Supp. 2d).
105 Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013).
106 Id., petition for cert filed, (U.S. December 16, 2013) (No. 13-758).
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The district court denied Secretary Rumsfeld’s motion to dismiss the complaint,107 and he
appealed. The United States also appealed the district court’s rejection of its motion to dismiss on
the basis that the Administrative Procedure Act prohibits judicial review of “military authority
exercised in the field in time of war or in occupied territory.”108 An appellate panel reversed the
decision with respect to the U.S. claim and affirmed the decision with respect to Secretary
Rumsfeld.109 Rehearing en banc was granted and both decisions set aside.
On rehearing, the full circuit court agreed with the merits panel that there was no right of action
against the United States for activities in Iraq. With respect to the claim against Secretary
Rumsfeld and others in the chain of command, the majority framed the question as “whether the
federal judiciary should create a right of action for damages against soldiers (and others in the
chain of command) who abusively interrogate or mistreat military prisoners, or fail to prevent
improper detention and interrogation.”
Noting that the other appellate courts who have addressed the question answered it in the
negative110 and that the Supreme Court has only rarely allowed new Bivens action, the majority
declined to permit the suit to go forward. The majority interpreted Supreme Court precedent to
establish a principle that civilian courts should not interfere with the military chain of command
without statutory authority.111 Even assuming that the plaintiffs’ constitutional rights were
violated and that law prohibiting mistreatment of prisoners—the Detainee Treatment Act and
possibly some treaties112—were violated, the majority assessed that permitting the lawsuit would
“come at an uncertain cost in national security,” and declined to find a right of action where
relevant statutes failed to provide one.113 Moreover, even if a right of action were to be created
under the circumstances present, liability would not extend to the Secretary of Defense and others
far removed from the actual conduct at the heart of the complaint.
Three judges dissented from the opinion, arguing that the majority essentially created absolute
immunity for members of the military from Bivens civil liability even in cases involving the
torture of civilians.114
107 Vance v. Rumsfeld, . 694 F. Supp. 2d 957 (N.D.Ill.2010).
108 5 U.S.C. §701(b)(1)(G).
109 Vance v. Rumsfeld, 653 F.3d 591 (7th Cir.2011).
110 Vance v. Rumsfeld, 701 F.3d 193, 195 (7th Cir. 2012) (en banc) (citing Lebron v. Rumsfeld, 670 F.3d 540 (4th
Cir.2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C.Cir.2012); Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011).
111 701 F.3d at 199.
112 Id. at 198.
113 The majority noted that a portion of the Detainee Treatment Act codified at 42 U.S.C. §2000dd–1(a), which
provides a defense for federal officials against damages liability for violation, only applies to suits by non-U.S.
nationals. Id. at 202.. But the court did not find that citizenship was dispositive for the viability of a Bivens suit. Id. at
203. Judge Wood, concurring because the Secretary of Defense was too far removed from the conduct to be personally
liable, pointed out that a Bivens action is the only possible action for citizens harmed on foreign land under control of
the United States, while non-citizens and U.S. citizens harmed by foreign officials can sue under the Torture Victim
Protection Act. Id. at 208. (Woods, C.J., concurring). The dissenting judges made a similar point by arguing that the
court should not attribute to Congress the “improbable” intent to “deny U.S. civilians a right that Congress has
expressly extended to the rest of the world.” Id. at *218 (Hamilton, C.J., dissenting).)
114 Id. at 211. (Hamilton, C.J., dissenting).
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Criminal Cases
Although numerous cases have been brought in federal civilian court involving persons who
allegedly engaged in terrorist activity, relatively few involve persons who were captured abroad
by U.S. forces during operations against either Al Qaeda or the Taliban, and only one case has
been tried in civilian court involving a person involved in the September 11, 2001, terrorist
attacks. This section discusses notable rulings made in criminal cases involving Zacharias
Moussaoui, who was tried and convicted for his role in the September 11, 2001, terrorist attacks,
but was never officially designated as an “enemy combatant”; John Walker Lindh, thus far the
only person captured abroad and tried and convicted in federal civilian court for belligerent
activities occurring on the Afghan battlefield; and Ahmed Khalfan Ghailani, a suspect in the 1998
African Embassy bombings who was incarcerated at Guantanamo and charged at a military
commission, but was later transferred to the Southern District of New York for trial on terrorism
charges. Ghailani is the only Guantanamo prisoner to have been transferred for civilian trial in the
United States. This section also covers appeals of military commission convictions and a
collateral case in which the petitioner sought to enjoin his trial by military commission.
Moussaoui Litigation
Zacharias Moussaoui, a French citizen, was arrested by immigration authorities for overstaying
his visa after he raised suspicions at a Minnesota flight school where he was enrolled. Less than a
month after he was taken into custody, a group of Al Qaeda terrorists carried out the September
11, 2001, attacks, and Moussaoui was charged in connection with the conspiracy to commit those
attacks. On January 7, 2002, after Moussaoui’s arraignment, the Department of Justice (DOJ)
imposed Special Administrative Measures (SAMs) to prevent his communication with other
terrorists. Moussaoui was permitted unmonitored attorney/client and consular communications
and mail, and monitored communications with others. The court also issued a protective order
under the Classified Information Procedures Act (CIPA; 18 U.S.C. app. 3, §3), which permitted
defense counsel to access classified information, but did not permit Moussaoui to receive such
information unless the government consented or the judge determined that it was necessary to
protect his right to prepare a defense.
After a competency hearing in which the judge explained that the lack of personal access to
classified information could impede Moussaoui’s ability to defend himself without counsel
appropriately cleared for access to such information, the judge permitted the defendant to proceed
pro se, and appointed the public defenders who had been assigned to the case to act as standby
counsel. After Moussaoui refused to cooperate with his appointed lawyers, the judge replaced
some of them, but ultimately concluded that Moussaoui was unlikely to approve any court-
appointed attorneys, and also held that he was not entitled to unmonitored access to “advisory
counsel” of his choice. Despite Moussaoui’s rejection of virtually all efforts by standby counsel to
assist him, the lawyers continued to file motions on his behalf, including motions seeking relief
from the SAMs or to revoke his pro se status on the grounds that he was not in a position to take
advantage of exculpatory information in the government’s possession. Moussaoui attempted to
plead guilty in July 2002, but was unwilling to admit to the facts necessary to support the plea
and withdrew it.
Moussaoui then sought access to several persons held overseas by the government as enemy
combatants who might provide information that would be useful to his defense by testifying that
Moussaoui was not involved in the September 11 attacks. (The government had advanced
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theories that Moussaoui was the intended “20th hijacker” or pilot of a fifth plane intended to target
the White House, whose participation in the actual attack was thwarted due to his incarceration,
and that Moussaoui’s refusal to provide agents information about the plot that might have
prevented the attacks from taking place contributed to the deaths of the several thousand victims,
a factor relevant to death penalty eligibility. Moussaoui claimed to be part of a plan for
subsequent terrorist operations and to have had no knowledge regarding the September 11 plot.)
The government offered to provide redacted summaries of reports presumably based on
intelligence interrogations of the enemy combatant witnesses,115 but the judge rejected the
proffered substitutions as possibly unreliable and inadequate to protect Moussaoui’s Sixth
Amendment right to compulsory process.
The government appealed the district court’s order requiring the government to make three of the
requested enemy combatant witnesses available for deposition to be conducted by remote video.
The United States Court of Appeals for the Fourth Circuit affirmed the district court’s holding that
that the enemy combatants in question could be reached through judicial process (directed at their
custodians) for the purpose of providing testimony and that their testimony would be relevant to
the case, but reversed the order for depositions and the sanctions the court had imposed for the
government’s refusal to comply.116 The appellate court held that substitutions for depositions
could be prepared that would provide substantially the same ability to prepare a defense, although
it agreed with some of the objections the district court had articulated regarding the government’s
proposed substitutions. The majority viewed the intelligence reports as possessing adequate
indicia of reliability because they were produced through methods designed to produce accurate
analyses of foreign intelligence.117 Consequently, the court remanded the case to the district court
with instructions to prepare substitutions for the deposition testimony by a process involving
collaboration with the parties,118 noting that adequate jury instructions would be necessary in
some cases to permit the jury to assess the reliability of the evidence.
115 The exact nature of the information and its acquisition by the government is obscured by the many redactions in the
reported opinions.
116 United States v. Moussaoui, 382 F.3d 453, 456-57 (4th Cir. 2004) (“Moussaoui II”). In “Moussaoui I,” 333 F.3d 509,
517 (4th Cir. 2003), the circuit court dismissed the appeal of the discovery order as unripe and remanded for the
government to propose substitutions for the witness testimony similar to those available under CIPA. (CIPA applies to
the production of documents during discovery but does not address witnesses). The district court imposed sanctions on
remand after the government refused to make the enemy combatant witnesses available for deposition. The judge
rejected the parties’ proposal for an order of dismissal, the ordinary sanction under CIPA in cases in which the
government declines to provide classified information the court has determined is necessary for the defense. Instead,
she dismissed the death notice on the grounds that the witnesses could provide testimony that might preclude a jury
from finding Moussaoui eligible for the death penalty. Because the testimony could exonerate Moussaoui of
involvement in the September 11 attacks, the district court prohibited the government “from making any argument, or
offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the September 11
attacks.” United States v. Moussaoui, 282 F. Supp. 2d 480, 327 (E.D. Va. 2003). Evidence that would have been
excluded under the order included cockpit voice recordings, video footage showing the collapse of the World Trade
Center Towers, and photographs of victims.
117 382 F.3d at 487 n. 31. Judge Gregory noted in dissent that such information may be reliable for intelligence
purposes and yet omit relevant information that might be helpful to the defense because such information was not
deemed to have any actionable foreign intelligence value. Id. at 488, n. 6.
118 As noted by a dissenting judge of the appellate panel, the procedures crafted by the majority deviate from CIPA
procedures by having the district judge, rather than the government, prepare the substitutions for the potential
testimony, arguably making the district court judge an advocate in the proceedings. 382 F.3d. at 484-85 (Gregory, J.,
concurring in part and dissenting in part).
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In the meantime, the district court revoked Moussaoui’s pro se privilege for his continued
submission of improper filings, some of which contained veiled or overt threats, political
statements with no relevance to the case, attempts at communicating to persons overseas, and
insulting language, despite repeated warnings that such conduct would result in sanctions. After
the Supreme Court denied certiorari with respect to the appellate court’s ruling on his right to
depose enemy combatant witnesses in the custody of the United States, Moussaoui again decided,
over his counsel’s objections, to plead guilty as an apparent tactic to avoid the death penalty. After
a hearing in which Moussaoui demonstrated to the court’s satisfaction that he understood a guilty
plea would result in forfeiting his right to appeal based on any violation of his constitutional
rights that might have occurred prior to the plea, the court accepted his plea. Moussaoui admitted
to the government’s allegations, including some he had previously denied, and signed the
statement of facts supporting the guilty plea, adding the designation of “20th Hijacker” below his
signature. During the sentencing phase, Moussaoui claimed that his mission on September 11 was
to have been piloting a commercial airliner into the White House, although statements by enemy
combatant witnesses introduced by the government contradicted that claim, along with some
other allegations Moussaoui had admitted as true. In the bifurcated sentencing proceeding, the
jury found Moussaoui to be eligible to receive the death penalty but declined to impose it,
sentencing him instead to life in prison.
Just days after receiving his sentence, Moussaoui filed a motion to withdraw his guilty plea,
claiming that his understanding of the American legal system had been “completely flawed” and
asking for a new trial “[b]ecause I now see that it is possible that I can receive a fair trial ... even
with Americans as jurors and that I can have the opportunity to prove that I did not have any
knowledge of and was not a member of the plot to hijack planes and crash them into buildings on
September 11, 2001.”119 He then appealed the court’s denial of his motion for a new trial, arguing
among other things that his plea was not voluntary as a matter of law because of district court
rulings that violated his constitutional rights, and that it was not knowing because he did not have
access to classified information in the government’s possession that contradicted the
government’s theory of the case. Finding that his guilty plea was entered with full knowledge and
understanding of its ramifications and that his objections to constitutional claims were waived,
the circuit court affirmed. The circuit court reviewed the procedural history regarding
Moussaoui’s access to classified information because these claims were relevant to the adequacy
of the plea and were therefore not waived for purposes of appeal, but reiterated its earlier view
that adequate substitutions under CIPA would have protected Moussaoui’s rights had the CIPA
process not been cut short by the guilty plea. Moreover, it noted that CIPA information had been
made available during the sentencing phase for establishing death-eligibility factors, and that not
only did Moussaoui make no effort to withdraw his plea upon receiving the information, but he
contradicted the supposedly exculpatory statements at trial. Finally, the circuit court rejected
Moussaoui’s contention that plain error had resulted in the jury’s false belief that the only
sentencing options available to them were the death penalty or life imprisonment without
possibility of parole, in violation of his right to have his sentence decided by the jury, on the basis
that Moussaoui had requested the jury be instructed that the sentencing options were limited as
part of an apparently successful strategy to avoid the death penalty.
119 Moussaoui v. Obama, 591 F.3d 263, 278 (4th Cir. 2010).
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United States v. Lindh, 227 F. Supp. 2d 565 (E.D. Va. 2004)
John Walker Lindh, a U.S. citizen, was captured in Afghanistan and charged with 10 counts of
supplying services to the Taliban under various statutes. He moved to have the charges dismissed,
arguing, inter alia that he was entitled to combatant immunity as part of the Taliban. While the
judge refused to accept the government’s argument that the President’s designation of Lindh as an
“unlawful combatant” was not subject to second-guessing by the court, he nevertheless concluded
that the Taliban is not entitled to combatant immunity under international law and rejected the
defense.120
Lindh was also unsuccessful in his bid to avoid the government’s request for a protective order
covering unclassified but sensitive information as well as classified information that the
government had concluded was subject to discovery by the defendant.121 At issue was whether the
defendant could adequately prepare a defense given the government’s proposal to restrict certain
information from the government’s redacted reports of relevant interviews with detainees held at
Guantanamo. Rule 16(d) of the Federal Rules for Criminal Procedure permits the court to restrict
discovery with respect to any information for good cause, including cases where the government
claims the protection of such information is vital to the national security. The court found good
cause to issue a protective order to prohibit the public dissemination of the detainee interview
reports, which would serve to prevent Al Qaeda members from learning “the status of, the
methods used in, and the information obtained from the ongoing investigation of the
detainees.”122 Lindh objected to the order on the basis that it would burden his ability to prepare
for trial by requiring the pre-screening of investigators and expert witnesses before he would be
permitted to disclose unclassified information to them, which he argued could reveal his defense
strategy to the prosecution. The judge found the needs of both parties could be accommodated by
amending the proposed order to require investigators or expert witnesses for the defense to sign a
memorandum of understanding, under oath, promising not to disclose information provided under
the order, rather than requiring pre-screening. Lindh also objected to the proposed protective
order because he believed it would impair his ability to use the media to influence public opinion,
as he contended the government had done. Noting that the “[d]efendant has no constitutional right
to use the media to influence public opinion concerning his case so as to gain an advantage at
trial” under either the Sixth Amendment right to a public trial or the public’s First Amendment
right to a free press,123 the judge rejected the argument, but cautioned that information that turned
out to be relevant and material to the trial as the case progressed might eventually require
unsealing to further those rights.124
Prior to the beginning of the merits phase of the trial, Lindh struck a plea deal with prosecutors,
admitting to one count of carrying an explosive during the commission of a felony, and was
sentenced to 20 years’ imprisonment.
120 United States v. Lindh, 212 F. Supp. 2d 541, 557-58 (E.D. Va. 2002). The judge also rejected Lindh’s contention
that media publicity had rendered a fair trial for him impossible, at least in that particular court, and that the
International Economic Emergency Powers Act (“IEEPA”) (50 U.S.C. §1701 et seq.) regulations he was charged with
violating were not valid.
121 United States v. Lindh, 198 F. Supp. 2d 739 (E.D. Va. 2002).
122 Id. at 742.
123 Id. at 743.
124 Id. at 744.
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United States v. Ghailani, 733 F.3d 29 (2d Cir. 2013), cert. denied,
2014 WL 272119 (U.S. March 10, 2014)
Alleged Al Qaeda member Ahmed Khalfan Ghailani was indicted in 1998 and charged with
conspiracy to kill Americans abroad in connection with the bombing the United States Embassies
in Nairobi, Kenya, and Dar es Salaam, Tanzania. He was arrested in Pakistan in 2004 and turned
over to U.S. custody to be held and interrogated at an undisclosed site abroad by Central
Intelligence Agency (CIA) officials. In 2006, he was transferred to DOD custody and held as an
enemy combatant at Guantanamo. He was charged before a military commission for his role in
one of the embassy bombings, but the charges were later withdrawn so that he could be
transferred to the Southern District of New York to be tried on the earlier indictment. The transfer
occurred in May 2009. Ghailani has since been convicted and sentenced to life imprisonment for
his part in the conspiracy.
The case has resulted in a number of rulings on constitutional issues that are likely to be pertinent
to the debate as to whether to try similar crimes in federal court or before military commissions,
including such issues as the right to effective assistance of counsel, the right to a speedy trial, the
privilege against self-incrimination and the right to counsel in custodial interrogation, and the
consequences of a jury trial. How these issues might be resolved in a military commission or by
reviewing courts remains to be seen. A military commission would also have had to resolve the
issue of whether crimes committed prior to the 9/11 attacks can properly be charged as war
crimes, a highly charged question for which arguments can be made either way, but which
appears to be lacking in precedent.
After his transfer to New York, Ghailani moved for an injunction or other relief against the
Secretary of Defense to prevent the reassignment of the military defense attorneys who had been
detailed to serve as his defense counsel before the military commission. Ghailani urged the court
to order the government to permit the two officers to act as his appointed counsel in federal court,
arguing that depriving him of the assistance of the counsel he had grown to trust amounted to a
violation of his Sixth Amendment right to the effective assistance of counsel. The government
urged the court to decline to adjudicate the motion or grant relief based on the political question
doctrine, arguing that the assignment of military officers to particular duties is the prerogative of
the executive branch alone. The judge did not think the political question doctrine prevented his
consideration of the matter, since he was not considering the propriety of the reassignment as
much as he was assessing the impact of the decision on the defendant’s rights, but ultimately
denied the motion, holding that an indigent defendant’s right to appointed representation does not
mean the right to continuous representation by counsel of his choice.125
Ghailani also filed a motion for dismissal of his indictment based on his claim that the
government violated his Sixth Amendment right to a speedy trial. In connection with this motion,
Ghailani sought discovery of documents in the government’s possession that demonstrate the
government delayed his prosecution from 2004 until his transfer to New York for reasons other
than national security. Rule 16 of the Federal Rules for Criminal Procedure permits discovery of
items “within the government’s custody, possession, or control” that are material to the case,
excluding documents that were prepared by government attorneys or agents that constitute work
125 United States v. Ghailani, 686 F. Supp. 2d 279, 298-99 (S.D.N.Y 2009) (citing Morris v. Slappy, 461 U.S. 1, 14
(1983); Wheat v. United States, 486 U.S. 153, 159 (1988)).
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product connected to the prosecution. The judge excluded one document specifically requested by
the defendant as attorney work product, but approved a more general request for information
relating to the reasons behind the timing of Ghailani’s transfer for trial based on a Supreme Court
ruling that makes the “reason for delay” one part of the test for determining whether charges must
be dismissed for failure to provide a speedy trial.126 The judge defined the scope of “in the
government’s possession, custody, or control” as reaching beyond the officials of the U.S.
Attorney’s Office who had worked on the case to include higher-level DOJ officials who were not
intimately involved in the case but were involved in the decision about where to prosecute
Ghailani. This requirement would not unduly burden the prosecution with unreasonable discovery
requirements, according to the court, because the embassy bombing crime had “commanded the
attention of the highest levels” of the government long before Ghailani was in American custody.
Under these circumstances, high-level officials involved in the important decisions involving
Ghailani’s treatment can be included within the meaning of “government” in Rule 16.127
Accordingly, the judge issued an order requiring production of documents held by the DOJ that
are material to the case and not otherwise privileged under the rule.
The court ultimately denied the speedy trial motion after applying the multi-factor balancing test
established by the Supreme Court in Barker v. Wingo,128 which takes into account the length of
the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the
defendant.129 The court held that the time Ghailani spent in CIA detention was justified by the
need to interrogate him for intelligence purposes, a process that was incompatible with
prosecution in federal court.130 The time between Ghailani’s transfer to Guantanamo in 2006 and
his transfer to New York in 2009, however, was held insufficient to justify postponement of trial,
because the need to prevent the defendant from returning to hostilities was not incompatible with
federal prosecution.131 The aborted military commission prosecution did not justify delay because
the government had complete discretion as to where to prosecute the defendant.132 However,
although the Guantanamo portion of the delay was attributable to the government, it was assessed
as a “neutral factor” because there was no evidence that its purpose had to do with a “quest for
tactical advantage.”133 Because Ghailani was detainable as an “enemy combatant” with or without
prosecution, the need to avoid excessive incarceration was not a relevant factor under Barker
analysis, either. The court was not persuaded that Ghailani was prejudiced by the delay, and it
held there was no violation of his Sixth Amendment rights.
126 United States v. Ghailani, 687 F. Supp. 2d 365, 369 (S.D.N.Y. 2010) (citing Barker v. Wingo, 407 U.S. 514 (1972)).
127 Id. at 372.
128 Barker v. Wingo, Warden 407 U.S. 514, 519 (1972).
129 See id. at 530. Courts have recognized at least three types of prejudice, including “‘oppressive pretrial
incarceration,’ ‘anxiety and concern of the accused,’ and ‘the possibility that the [accused’s] defense will be impaired’
by dimming memories and loss of exculpatory evidence.” See Doggett v. United States, 505 U.S. 647, 654 (1992)
(citing Barker, 407 U.S. at 532; Smith v. Hooey, 393 U.S. 374, 377-379 (1969); United States v. Ewell, 383 U.S. 116,
120 (1966).
130 United States v. Ghailani, 751 F. Supp. 2d 515, 534 (S.D.N.Y. 2010).
131 Id. at 535. The court pointed out that the defendant had been “no more able to engage in hostilities against the
United States while in the custody of the Bureau of Prisons pending trial on this indictment than he was at Guantanamo
in the custody of the DoD. He could have been brought to this Court in 2006 or any subsequent date to face this 1998
indictment and, at the same time, prevented from engaging in hostilities against this country.” Id. at 536.
132 Id. at 538. The judge contrasted this factor against situations where delay is justified by ongoing state investigations
and prosecutions.
133 Id. at 540.
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Although Ghailani’s overseas detention by the CIA did not preclude his prosecution, it did result
in the exclusion of a government witness whose identity was uncovered during Ghailani’s
interrogation and whose cooperation with prosecutors was less than willing.134 The government
having stipulated that any statements Ghailani made to CIA interrogators were coerced, the judge
held that the Fifth Amendment’s privilege against self-incrimination would permit the
government to introduce such witness testimony only if it had proven that the connection between
Ghailani’s coerced statements and the witness’s testimony was sufficiently remote or attenuated
to purge the taint of illegality, or if it could establish another basis upon which the testimony
could be admitted. The government failed to establish the inevitability of its identification of the
witness independent of the defendant’s coerced statement, and it did not persuade the judge that
the “core application” doctrine applicable to the exclusionary rule in the Fourth Amendment
search and seizure context should hold sway in the Fifth Amendment context.135 Consequently,
the court held hearings to examine whether the witness’s testimony was truly voluntary; the
extent to which the coerced statements played a role in securing the witness’s cooperation; and
whether the lapse of time between the illegal government action and contact with the witness
established a sufficient attenuation to avoid the exclusion of his testimony. The judge ultimately
found each of these criteria weighed in favor of the defendant, but the facts leading to this
determination remain largely classified.136
After a jury trial, Ghailani was found guilty of conspiracy to destroy buildings and property of the
United States, but not guilty of 284 other counts—one count of murder or attempted murder for
each of the Americans killed or injured in the attacks, one count each for the bombing the U.S.
embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, and various other charges related to
the bombings.137 The jury concluded that Ghailani’s participation in the property destruction
conspiracy was a direct or proximate cause of the death of a person other than a conspirator. After
rejecting the defendant’s motion for acquittal or a new trial on the property conspiracy charge,138
which the defense argued was necessary in light of the seemingly inconsistent verdict,139 the
judge sentenced Ghailani to life imprisonment based on the aggravating factor the jury found.
134 United States v. Ghailani, 743 F. Supp. 2d 261 (S.D.N.Y. 2010).
135 United States v. Ghailani, 743 F. Supp. 2d 242 (S.D.N.Y. 2010) (order). Under the “core application” doctrine, the
exclusionary rule should be limited to cases where it serves as a deterrent to unlawful police actions, which typically
means barring the use of unlawfully seized evidence in the government’s case in chief for the offense that precipitated
the search, and that extension of the rule to cases where the remedial purpose is not served (such as cases in which a
search is defective due to clerical error) must be justified by weighing the additional marginal deterrence against the
cost to the public interest in pursuing the truth. See Arizona v. Evans, 514 U.S. 1 (1995). The government argued that
the exclusion of any evidence obtained as a result of Ghailani’s coerced statements would not serve any deterrent
purpose because the interrogation was conducted as part of a CIA effort to gather intelligence necessary for national
security purposes rather than part of a law enforcement operation., and that CIA interrogators did not contemplate nor
were motivated by the prospect of a criminal investigation. Judge Kaplan rejected the government’s rationale, noting
that a Fourth Amendment violation occurs at the time of an unlawful search or seizure, while the Fifth Amendment’s
Self-Incrimination Clause is violated whenever a coerced statement or its fruit is introduced at trial. Accordingly, he
reasoned that the direct protection of a constitutional right rather than the deterrence of future violations was at stake in
the case before him, and that the rationale of the core application doctrine did not apply.
136 United States v. Ghailani, 743 F. Supp. 2d 261 (S.D.N.Y. 2010).
137 For a complete list of charges, see Press Release, U.S. Justice Department, “Ahmed Ghailani Transferred from
Guantanamo Bay to New York for Prosecution on Terror Charges,” June 9, 2009, available at http://www.justice.gov/
opa/pr/2009/June/09-ag-563.html.
138 United States v. Ghailani, 761 F. Supp. 2d 167 (S.D.N.Y. 2011).
139 The defense argued in essence that a conviction for conspiracy to commit a substantive offense is improper where a
defendant is acquitted of committing the substantive offense itself and the proof necessary to support the substantive
(continued...)
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The results of Ghailani’s trial have fueled the debate over whether military commissions or
federal court trials are appropriate in terrorism cases. Some observers view the trial as a
demonstration that federal trial courts using the ordinary tools of criminal justice are up to the
task of meting out justice to terrorists, while others characterize the outcome as a “near acquittal”
that demonstrates the superiority of military commissions. The judge’s post-trial opinion denying
the defendant’s motion for acquittal sheds some light on what may seem to be a curious verdict.
Ghailani’s defense throughout the trial was that he had been unknowingly duped into carrying out
what he thought were innocent acts, but which in hindsight turned out to be acts in furtherance of
the bombing conspiracy. The charge of conspiracy to destroy property, however, did not require
that the government prove beyond a reasonable doubt that Ghailani was aware of the exact
objective and targets of the plot; it merely required proof that Ghailani understood that his
activities would very likely result in the bombing of American facilities somewhere, for which the
judge agreed there was abundant evidence. The jury was instructed that willful blindness on the
part of the accused to the precise objective of the conspiracy would invalidate a defense based on
the lack of requisite knowledge, and that conviction was therefore proper if the facts
demonstrated that the defendant “was aware of a high probability of the fact in dispute and
consciously avoided confirming that fact.”140 In contrast, the charge for participating in the Dar es
Salaam embassy bombing required proof that “Ghailani knew that the embassy was a target and
that he acted to further that goal.”141 Apparently the jury did not agree that the government’s
evidence adequately established these elements.
Ghailani appealed, arguing that his lengthy pretrial detention by the CIA and then the military
should have precluded his trial on speedy trial grounds. He also challenged the district court’s
jury instruction on “conscious avoidance,” which permitted the jury to find that he had the
requisite knowledge for a guilty verdict if he purposely avoided confirming the likely objective of
the criminal conspiracy. Finally, he argued that, in any event, his life sentence was not
commensurate with his conviction on only one of the 286 charges brought against him. The
appellate court disagreed,142 validating the district court’s opinions on each point raised.
Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012)
(“Hamdan II”)
After Salim Hamdan won his earlier habeas case at the Supreme Court,143 which led the Supreme
Court to invalidate the military commission system set up by President Bush, Congress enacted
the Military Commission Act of 2006.144 Hamdan was then charged under the new system with
conspiracy and material support of terrorism. In 2008, Salim Hamdan was found guilty of one
count of providing material support for terrorism and sentenced to 66 months’ imprisonment, but
(...continued)
charge is identical to that required for a conspiracy conviction. The judge rejected that theory as a valid statement of the
law. See id. at 190-191.
140 Id. at 194.
141 Id.
142 United States v. Ghailani, 733 F.3d 29 (2d Cir. 2013), cert. denied, 2014 WL 272119 (U.S. March 10, 2014).
143 See supra “Hamdan v. Rumsfeld, 548 U.S. 557 (2006).”
144 P.L. 109-366, 120 Stat. 2600, codified as amended at Chapter 47a of Title 10, U.S. Code. For an overview, see CRS
Report R41163, The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues, by Jennifer K. Elsea.
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was credited with five years’ time served and subsequently returned to Yemen.145 Despite his
release, Hamdan continued his appeal through the system established by the MCA, arguing that
his conviction on the material support charge was invalid because the charge was not recognized
as a violation of the international law of war at the time he committed it.
After determining the appeal was not moot by reason of Hamdan’s release, the U.S. Court of
Appeals for the D.C. Circuit overturned Hamdan’s conviction as contrary to the MCA. In its
unanimous opinion, the three-judge panel found that Congress did not intend for the offenses it
defined in the MCA to apply retroactively. Because the court agreed that the crime of material
support of terrorism did not exist as a war crime under the international law of war at the time the
relevant conduct occurred (a requirement under the previously existing military commissions
statute),146 it vacated the decision below of the Court of Military Commissions Review (CMCR),
which had unanimously affirmed Hamdan’s conviction.147
The MCA declares that it “codif[ies] offenses that have traditionally been triable by military
commissions,” and that “because the provisions ... codify offenses that have traditionally been
triable under the law of war or otherwise triable by military commission, this subchapter does not
preclude trial for offenses that occurred before the date of the enactment.... ”148 Where the CMCR
had deferred to Congress in its determination that material support for terrorism, as defined, is a
pre-existing violation of the law of war, the D.C. Circuit interpreted the language quoted above as
evincing an intent to preclude retroactive enforcement of any offenses in the event Congress was
mistaken about their pre-existence, as the court determined was the case with respect to the
material support offense. This interpretation was based not only on the plain language of the
statute (an interpretation the government brief shared), but also on the canon of constitutional
avoidance, which in this case called for a reading that would not require the court to decide
whether the offense was retroactive in violation of the Ex Post Facto clause of the Constitution.
The government had asserted that ample precedent for the charge of material support for
terrorism could be found in analogous charges under the “U.S. common law of war” as practiced
in Civil War military commissions and during other conflicts. The court rejected that theory,
instead regarding the “U.S. common law of war” as distinct from the international law of war
which Congress intended for military commissions to apply. Because the charge of material
support has been the most frequently charged of the offenses before military commissions, and
because all charges to date have involved conduct that occurred prior to the enactment of the
MCA, the effect of the opinion is bound to have an effect on upcoming cases, charging decisions,
and possibly opportunities for plea agreements. The court also hinted that other offenses
proscribed by the MCA might fall into the retroactive category. To avoid that fate, the court
suggested, an offense must be shown to be “based on norms firmly grounded in international
law.”149
145 Press release, Department of Defense, Detainee Transfer Announced (November 28, 2008), available at
http://www.defenselink.mil/releases/release.aspx?releaseid=12372.
146 10 U.S.C. §821.
147 Hamdan v. United States, 09-002 (CMCR 2011), available at http://www.lawfareblog.com/wp-content/uploads/
2011/06/hamdan.pdf.
148 10 U.S.C. §950p(d).
149 Hamdan v. United States, 696 F.3d 1238, 1250 n. 10 (D.C. Cir. 2012).
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The government opted not to appeal the decision directly, but instead has challenged the ruling
indirectly by appealing a different case to the D.C. Circuit en banc. (See Al Bahlul, below).
Al Bahlul v. United States, 2013 WL 297726, vacated and
reh’g en banc granted, No. 11-1324 (D.C. Cir. 2013)
In the appeal of the military commission conviction in Al Bahlul, the government essentially
asked the three-judge panel of the appellate court to overturn his conviction on the basis that
Hamdan II provided binding precedent on the question presented, namely, the validity of
convictions for conspiracy, solicitation, and material support of terrorism for conduct preceding
passage of the Military Commissions Act (MCA) in 2006. (Hamdan II did not address conspiracy
or solicitation, but the government conceded that these offenses do not constitute universally
recognized violations of the international law of war.) The government sought this ruling to
facilitate en banc consideration of the D.C. Circuit’s precedential ruling concerning the scope of
crimes recognized as cognizable offenses of the laws of war under the MCA. The court complied
with the request in a per curiam order, invalidating the second military commission conviction
and thereby enabling it to work its way through the appeals process to the D.C. Circuit.
Al Bahlul, formerly Osama bin Laden’s public relations director and personal secretary, was
convicted in 2009 by a military commission of “(1) providing material support and resources,
including himself to al Qaeda ...; (2) conspiring with Osama bin Laden and other members and
associates of al Qaeda to, inter alia, commit murder, attack civilians and civilian objects in
violation of the law of war, commit terrorism, and provide material support for terrorism with
exceptions; and (3) soliciting various persons to commit these same offenses in violation of” the
MCA. The Court of Military Commission Review (CMCR) upheld the conviction, finding that
the offenses for which Al Bahlul was charged were violations of the law of war when committed.
Following the MCA appellate process, Al Bahlul’s attorneys appealed to the D.C. Circuit.
Although the government agreed with Al Bahlul’s defense counsel that Hamdan II required
reversal of Al Bahlul’s conviction, it made clear that it did not agree that Hamdan II was correctly
decided. In order to keep its options open for appeal, the government set forth in its brief why it
thought the D.C. Circuit wrongly decided Hamdan II. First, the government argued, the Hamdan
II panel’s conclusion that Congress did not intend to authorize military commissions to penalize
pre-2006 conduct unless it constituted a clearly recognized violation of international law does not
comport with the plain language of the MCA or Congress’s stated intent. Second, the government
viewed as faulty the panel’s interpretation of Article 21 of the Uniform Code of Military Justice
(UCMJ), which the court held to restrict the jurisdiction of military commissions for pre-2006
conduct to well-established violations of the law of war. Rather, the government argued that
Article 21 was intended to preserve jurisdiction of military commissions over the types of crimes
the United States has historically considered subject to such trials as violations of the U.S.
common law of war. Because the United States has charged such crimes before military
commissions at least since the Civil War, the government disagreed that their retroactive inclusion
in the MCA would pose any Ex Post Facto clause problems.
The D.C. Circuit has granted the government’s petition for rehearing en banc. In addition to the
questions raised by the parties, the D.C. Circuit has asked the parties to brief on rehearing:
1. For purposes of considering whether the Military Commissions Act of 2006 may
permissibly proscribe pre-2006 conduct that was not a war crime triable by military
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commission under 10 U.S.C. § 821 before 2006, does the Ex Post Facto Clause apply in
cases involving detainees at Guantanamo?
2. Assuming arguendo that, as Hamdan II concluded, the Military Commissions Act of 2006
does not proscribe pre-2006 conduct that was not a war crime triable by military commission
under 10 U.S.C. § 821 before 2006, and that 10 U.S.C. § 821 permits trial by military
commission only for war crimes that were proscribed under the international law of war at
the time of the offense, was conspiracy a violation of the international law of war at the time
of Bahlul’s offense?
Al Nashiri v. MacDonald, 741 F.3d 1002 (9th Cir. 2013)
The U.S. Court of Appeals for the Ninth Circuit declined to put a stop to the military commission
trial of Abd Al Rahim Hussein Al-Nashiri for his alleged role in three terrorist plots, including the
2000 bombing of the USS Cole in a Yemeni harbor. Agreeing with the court below, the appellate
panel found that federal courts have no jurisdiction to entertain pre-trial challenges to the military
commissions’ jurisdiction because Congress barred such challenges when it passed Section 7 of
the Military Commissions Act of 2006 (MCA).
Al-Nashiri is a Saudi national who is currently detained at Guantanamo Bay and has been
charged before a military commission with conspiring to commit terrorism and murder in
violation of the law of war in connection with the Cole bombing, an attempt to bomb the USS The
Sullivans in 2000, and the 2002 bombing of a French vessel, M/V Limburg. He brought suit in
federal district court against the Convening Authority for the Office of Military Commissions
claiming that the charges contravened the MCA requirement that offenses be committed “in the
context of and associated with hostilities.” Al-Nashiri argues that since neither the President nor
Congress had certified the existence of an armed conflict in Yemen prior to 2003, the charges
against him are unlawful as a matter of law. In that case, he argues, the Convening Authority
exceeded his authority by bringing the charges. He asked the court for a declaratory judgment
stating that “neither the President nor Congress certified the existence of an armed conflict
subject to the laws of war in Yemen prior to September 2003” and that the defendant “acted
beyond his authority and in violation of the constitution by issuing orders to convene a military
commission with the power to recommend the sentence of death for allegations relating to” the
three incidents. The government moved to dismiss for lack of jurisdiction, which the district court
granted.150
On appeal, Al-Nashiri renewed his contention that MCA Section 7 is unconstitutional. Following
an earlier decision in a different case, however, the appellate court disagreed that the Supreme
Court’s decision in Boumediene v. Bush, which held that the revocation of the writ of habeas
corpus (in the first paragraph of Section 7) was unconstitutional, also invalidated the second
paragraph enacted by Section 7.151
Al-Nashiri argued in the alternative that this provision does not apply to his lawsuit because he
named the Convening Authority in his personal capacity rather than his capacity as an agent of
the government. He also argued that the initial referral of charges is not an “aspect of trial” such
that its challenge would be barred. The court of appeals disagreed, noting that the relief sought
150 Al-Nashiri v. MacDonald, 2012 WL 1642306 (W.D. Wash. May 10, 2012) (not reported in F. Supp. 2d).
151 18 U.S.C. §2241(e)(2) (for the text of the paragraph, see supra footnote 72).
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would not help the petitioner much unless it applied to the new Convening Authority and the rest
of the government. Moreover, an error in the exercise of delegated authority does not bring an
action outside the scope of an official’s capacity. The second argument was dismissed on the basis
of plain text reading, as was a third argument based on legislative history.
The appellate court noted that the military commissions have jurisdiction to determine their own
jurisdiction pursuant to statute. In fact, the court noted, the military judge has already held that
the issue of the existence of hostilities is a question of fact and an element of proof that must be
established by the government at trial. Al-Nashiri will be able to contest the military
commission’s jurisdiction over his alleged crimes at the military commission and, if convicted, on
appeal.
Conclusion
Although the political branches of government have been primarily responsible for shaping U.S.
wartime detention policy in the conflict with Al Qaeda and the Taliban, the judiciary has also
played a significant role in clarifying elements of the rights and privileges owed to detainees
under the Constitution and existing federal statutes and treaties. These rulings may have long-
term consequences for U.S. detention policy, both in the conflict with Al Qaeda and the Taliban
and in future armed conflicts. Judicial decisions concerning the meaning and effect of existing
statutes and treaties may compel the executive branch to modify its current practices to conform
with judicial opinion. For example, judicial opinions concerning the scope of detention authority
conferred by the AUMF may inform executive decisions as to whether grounds exist to detain an
individual suspected of involvement with Al Qaeda or the Taliban. Judicial decisions concerning
statutes applicable to criminal prosecutions in Article III courts or military tribunals may
influence executive determinations as to the appropriate forum in which to try detainees for
criminal offenses.
Judicial rulings may also invite response from the legislative branch, including consideration of
legislative proposals to modify existing authorities governing U.S. detention policy. The 2012
NDAA, for example, contains provisions which arguably codify aspects of existing jurisprudence
regarding U.S. authority to detain persons in the conflict with Al Qaeda. Judicial activity with
respect to the present armed conflict may also influence legislative activity in future hostilities.
For example, Congress may look to judicial rulings interpreting the meaning and scope of the
2001 AUMF for guidance when drafting legislation authorizing the Executive to use military
force in some future conflict.
While the Supreme Court has issued definitive rulings concerning certain issues related to
wartime detainees, many other issues related to the capture, treatment, and trial of suspected
enemy belligerents are either the subject of ongoing litigation or are likely to be addressed by the
judiciary. Accordingly, the courts appear likely to play a significant role in shaping U.S. policies
relating to enemy belligerents in the foreseeable future.
Congressional Research Service
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
Author Contact Information
Jennifer K. Elsea
Michael John Garcia
Legislative Attorney
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
mgarcia@crs.loc.gov, 7-3873
Congressional Research Service
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