Bin Lep v. Trump

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOHAMMED NAZIR BIN LEP,

Petitioner,

v. Civil Action No. 20-3344 (JDB)

JOSEPH R. BIDEN JR., et al.,

Respondents.

MEMORANDUM OPINION

Before the Court are two motions—a motion for discovery filed by petitioner Mohammed

Nazir Bin Lep and a motion to dismiss filed by respondents. Bin Lep is currently detained at

Guantanamo Bay due to his alleged participation in al-Qaeda operations against the United States.

He has filed numerous petitions for habeas corpus over his two decades in U.S. custody, the latest

of which was filed in November 2020 and raises 10 claims. His case was referred to a military

commission for proceedings in January 2021, and this Court held all but two of his habeas claims

in abeyance pending the resolution of those proceedings. In March 2022, Bin Lep filed a motion

for discovery on those two live habeas claims, and in May 2022, respondents filed a motion asking

the Court to either dismiss or grant judgment in their favor on those claims, or to hold them in

abeyance. For the reasons explained below, the Court will enter judgment in the government’s

favor as to Claim X; will dismiss any aspect of Claim IX challenging current or past conditions of

confinement; will hold in abeyance any aspect of Claim IX challenging the factual predicate

justifying his detention; and will accordingly deny the discovery motion as moot.

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Background

Bin Lep is a citizen of Malaysia who was seized by local authorities in Thailand on or

around August 13, 2003 due to his alleged participation in al Qaeda operations against the United

States. See Pet. for a Writ of Habeas Corpus [ECF No. 40] (“Habeas Pet.”) ¶¶ 8, 15–17. He was

then transferred to CIA custody, where he remained for the next three years in the CIA’s now-

defunct Rendition, Detention, and Interrogation (“RDI”) program. Id. ¶ 17.

Bin Lep is detained pursuant to the 2001 Authorization for Use of Military Force, Pub. L.

No. 107-40, 115 Stat. 224 (2001), which permits the United States to detain persons who were a

part of or substantially supported al Qaeda. Resp’ts’ Mot. to Dismiss, for J., or to Abstain with

Respect to Claims IX & X of the Pet. & Mem. in Supp. [ECF No. 113] (“Mot. to Dismiss”) at 1.

The government alleges Bin Lep joined al Qaeda and Jemaah Islamiyah (an associated force of al

Qaeda), “received training from al Qaeda, swore an oath of loyalty to Usama bin Laden after the

September 11, 2001 attacks, and agreed to participate in a martyrdom operation against the United

States.” Id. It also alleges he served in a role that facilitated the transfer of al Qaeda funds for use

in bombing attacks against United States interests. Id.

In 2006, Bin Lep was transferred to Department of Defense (“DoD”) custody at the U.S.

Naval Station in Guantanamo Bay, Cuba (“Guantanamo”), where he has remained to this day.

Habeas Pet. ¶ 8. He is one of 15 high-value detainees (“HVDs”) currently detained at

Guantanamo, out of a total detainee population of 31.1 Mot. to Dismiss at 1, 28; see Habeas Pet.

¶¶ 18–19. In 2007, a Combatant Status Review Tribunal (“CSRT”) classified Bin Lep as an

1

Although the government’s motion to dismiss states that there are 37 total detainees at Guantanamo, as of

March 8, 2023, there are 31. Press Release, U.S. Dep’t of Defense, Guantanamo Bay Detainee Transfer Announced

(Mar. 8, 2023), https://www.defense.gov/News/Releases/Release/Article/3323397/guantanamo-bay-detainee-

transfer-announced/ (last accessed Mar. 30, 2023).

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“Enemy Combatant” due to his participation in al Qaeda and its associated forces. Habeas Pet.

¶ 20.

In 2009, Bin Lep filed his first writ of habeas corpus in federal court, Habeas Pet. ¶ 21; see

Pet. for Writ of Habeas Corpus, Bin Lep v. Bush, 1:09-cv-00031-UNA (D.D.C. Jan. 8, 2009), ECF

No. 1, which was ultimately dismissed without prejudice, Stipulation & Order, Bin Lep v. Bush,

1:09-cv-00031-UNA (D.D.C. Apr. 5, 2013), ECF No. 91. In 2010, an interagency task force

recommended that Bin Lep be prosecuted by a military commission. Habeas Pet. ¶ 22. In

December 2017, the Office of the Chief Prosecutor swore charges against Bin Lep, which were

ultimately dismissed without prejudice. Id. ¶ 24. A second set of charges were sworn against Bin

Lep in April 2019, but no action was taken at that time. Id. ¶ 25.

In September 2019, Bin Lep filed another petition for habeas corpus in this Court. See

Notice of Filing, Bin Lep v. Trump, No. 19-cv-2799 (JDB) (D.D.C. Sept. 18, 2019), ECF No. 3.

That petition was dismissed with prejudice as moot, but the Court granted Bin Lep leave to file

another habeas petition. Order, Bin Lep v. Trump, No. 19-cv-2799 (JDB) (D.D.C. Nov. 26, 2019),

ECF No. 32.

Bin Lep filed his most recent petition for a writ of habeas corpus in November 2020, raising

10 grounds for relief. Relevant here, Bin Lep claims that his designation as an HVD violates the

Fifth and Eighth Amendments and the Detainee Treatment Act’s (“DTA”) prohibition on cruel

and arbitrary punishment (Claim IX), Habeas Pet. ¶¶ 90–93, and that the government violated U.S.

Army Regulation (“AR”) 190-8 by “block[ing] any means by which [he] can properly . . . request”

a mixed medical commission (“MMC”) that could deem his repatriation to Malaysia necessary

due to his allegedly poor health (Claim X), id. ¶¶ 94–96.

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Bin Lep simultaneously requested a preliminary injunction to prevent the government from

trying him before a military commission,2 see Mot. for Prelim. Inj. [ECF No. 41], which the Court

denied in December 2020, Dec. 14, 2020 Order [ECF No. 55]. One month later, the Office of

Military Commissions referred sworn charges against Bin Lep and two co-defendants to a military

commission. Bin Lep, 2022 WL 123957, at *2. The charges allege that Bin Lep was involved in

orchestrating the bombing of nightclubs in Bali, Indonesia in 2002 and the bombing of a hotel in

Jakarta, Indonesia in 2003. Mot. to Dismiss at 2.

Then, in February 2021 the government moved to hold all Bin Lep’s habeas claims in

abeyance pending the resolution of his military commission proceedings. See Resp’ts’ Mot. to

Hold Pet. in Abeyance Pending Completion of Military Commission Proceedings [ECF No. 62].

The Court ordered a stay of the habeas proceeding pending further developments in the military

commission proceeding. June 25, 2021 Order [ECF No. 85]. Then, on January 13, 2022, the Court

granted the government’s abeyance motion as to all Bin Lep’s habeas claims except Claims IX

and X. Bin Lep, 2022 WL 123957, at *17. The Court held that Claims I–VIII overlapped

sufficiently with the nature of the military tribunal proceeding such that abstention principles

counseled in favor of abeyance with respect to those claims. Id. at *14–15.

But, on the record then before the Court, the Court held that the issues underlying Claims

IX and X had not and could not be raised in the military commission proceedings and thus

abstention was not warranted. Bin Lep, 2022 WL 123957, at *15–16. With respect to Claim IX,

the Court noted that military commissions have disclaimed jurisdiction over claims pertaining to

conditions of confinement and HVD status, and it thus concluded that abstention principles did not

favor holding that claim in abeyance. Id. at *15. As for Claim X, the Court determined that “[t]he

2

At that time, the sworn charges against him had not yet been referred to a military commission. Bin Lep v.

Biden, Civ. A. No. 20-3344 (JDB), 2022 WL 123957, at *1 (D.D.C. Jan. 13, 2022).

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government ha[d] not shown that the Court’s adjudication of Bin Lep’s entitlement to [an MMC]

would require the Court to make findings about his mental state or would interfere with the military

commission” and thus that abstention principles did not counsel against hearing the claim

simultaneously with the military commission proceedings. Id. at *16.

Bin Lep then filed the instant motion for discovery in March 2022 relating to Claims IX

and X. See Pet’r’s Mot. for Disc. [ECF No. 107] (“Disc. Mot.”).3 He requests five categories of

information: (1) exculpatory information, (2) conditions of confinement information,

(3) information related to the high-value detainee policy, (4) information related to his designation

as an HVD, and (5) identities of possible witnesses with knowledge of those topics. See id. at 3–

11. The government opposes this request, primarily arguing that it is out of step with the approach

taken in discovery in other Guantanamo cases and that discovery is premature at this juncture. See

Resp’ts’ Opp’n to Disc. Mot. [ECF No. 112]. Bin Lep replied in support of his motion, see Pet’r’s

Reply in Supp. of Disc. Mot. [ECF No. 122], and the government filed a sur-reply, see Resp’ts’

Sur-Reply in Opp’n to Disc. Mot. [ECF No. 126-1].

The government filed the instant motion to dismiss, for judgment, or to abstain with respect

to Claims IX and X in May 2022. Regarding Claim X, the government argues that the Court lacks

jurisdiction because it is not a cognizable habeas claim, and that in any event, equitable principles

counsel against the Court exercising jurisdiction and that Bin Lep is not entitled to an MMC. See

Mot. to Dismiss at 7–8. As to Claim IX, the government primarily argues that Bin Lep’s challenge

to his HVD status (or any current or former conditions of confinement as a result of that status)

are not cognizable habeas claims, and thus the Court lacks jurisdiction, or in the alternative, the

merits of the claim relate to issues handled in the military commission proceedings and thus should

3

References to this document cite the PDF pagination rather than the internal pagination.

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be held in abeyance. See id. at 26–28. Bin Lep responded in opposition to the motion, mainly

arguing that the law of the case doctrine dictates that the Court already determined that it has

jurisdiction over Claims IX and X and that the government’s motion is untimely under the Federal

Rules of Civil Procedure. See Resp. in Opp’n to Mot. to Dismiss [ECF No. 123] (“Opp’n”) at ii.

The government has filed a reply in support of its motion. See Resp’ts’ Reply in Supp. of Mot. to

Dismiss [ECF No. 127] (“Reply”).

Both motions are now ripe for decision.

Analysis

I. Claim X: Mixed Medical Commission

Bin Lep claims that he “should have access to a medical commission” per U.S Army

Regulation (“AR”) 190-8 to determine his eligibility for medical repatriation due to the “physical

and mental harm” he has suffered while in custody. Habeas Pet. ¶ 95. Thus, he contends, the

government’s refusal to convene an MMC for him violates that regulation. Id.

The government argues that this claim should either be dismissed or denied on the merits

and advances three arguments in support of its position. See Mot. to Dismiss at 7. First, the claim

“does not sound in habeas because it will not necessarily affect the fact, duration, or form of

Petitioner’s confinement, particularly given that Petitioner is subject to ongoing military

commission proceedings,” and the Court accordingly lacks subject-matter jurisdiction. Id. at 8.

Second, even if the Court does have jurisdiction, “the Court should refrain from exercising any

authority to decide the claim as a matter of equity” because “[g]ranting [the] relief [Bin Lep seeks]

would be inconsistent with the great deference that the Judiciary affords the Executive on military

operations and treaty interpretation.” Id. And third, Bin Lep is not entitled to an MMC in any

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event because he is part of a nonstate terrorist organization. Id. Bin Lep disagrees on both

substantive and procedural grounds. See Opp’n at 13–17, 20–36, 38–40, 42, 43–45.

For the reasons explained below, the Court holds that it has subject-matter jurisdiction over

Claim X but that the claim fails on the merits, and the Court will accordingly enter judgment in

favor of the government.

A. Subject-Matter Jurisdiction

Federal courts have jurisdiction over actions filed by Guantanamo detainees only if they

“sound in habeas corpus.” Aamer v. Obama (“Aamer I”), 742 F.3d 1023, 1030 (D.C. Cir. 2014)

(“[I]f petitioners’ claims do not sound in habeas, their challenges constitute an action other than

habeas corpus barred by section 2241(e)(2).” (cleaned up)); see 28 U.S.C. § 2241(e)(2); see also

Boumediene v. Bush, 553 U.S. 723, 792 (2008) (holding that statutory bar to Guantanamo

detainees’ habeas corpus claims in federal court is an unconstitutional suspension of the writ). A

Guantanamo detainee’s claim need not be a “core” habeas claim (meaning a claim that challenges

“petitioner’s detention or the duration thereof”) in order for a court to have subject-matter

jurisdiction—the court’s jurisdiction encompasses non-“core” habeas claims as well, such as a

claim challenging a petitioner’s transfer to another facility. See Kiyemba v. Obama, 561 F.3d 509,

512 (D.C. Cir. 2009).

The government nevertheless argues that Department of Homeland Security v.

Thuraissigiam, 140 S. Ct. 1959 (2020), forecloses Bin Lep’s claim for an MMC. Mot. to Dismiss

at 16. Thuraissigiam held that the Illegal Immigration Reform and Immigrant Responsibility Act,

which restricted the ability of asylum-seekers to file habeas claims in federal courts seeking review

of denial of their asylum applications, was not an unconstitutional suspension of the writ because

“[h]abeas has traditionally been a means to secure release from unlawful detention, but respondent

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invoke[d] the writ to achieve an entirely different end, namely, to obtain additional administrative

review of his asylum claim and ultimately to obtain authorization to stay in this country.” 140 S.

Ct. at 1963. Thuraissigiam’s requested relief—a re-review of his asylum application—would not

have guaranteed that he would succeed on his application and receive asylum status. See id. at

1968. The government argues that this holding extends to Bin Lep’s MMC claim because, like in

Thuraissigiam, success on that claim “would only potentially result in release from custody.” Mot.

to Dismiss at 16.

In its effort to apply Thuraissigiam to this case, the government claims that decision’s

holding “teaches that a motion falls outside habeas when it seeks not actual release from such

custody, but merely a new opportunity for administrative procedures potentially resulting in

release, the claim Petitioner asserts here.” Mot. to Dismiss at 16 (internal quotation marks

omitted). But that characterization stretches Thuraissigiam too far. First, Thuraissigiam concerned

an asylum-seeker—not a prisoner. See 140 S. Ct. at 1963. That is a critical distinction: the Court

concluded that Thuraissigiam’s argument was “doom[ed]” because he had not “shown that the writ

of habeas corpus was understood at the time of the adoption of the Constitution to permit a

petitioner to claim the right to enter or remain in a country or to obtain administrative review

potentially leading to that result.” Id. at 1969 (emphasis added). Thus, the government’s

description of the case is misleading. The Supreme Court was troubled by the fact that

Thuraissigiam was not seeking release from custody—the core of a writ of habeas corpus—but

rather another opportunity for his asylum application to be reviewed. See id. at 1969–71. Thus,

the Court’s reasoning did not actually hinge, as the government argues, on the fact that the relief

sought would only “potentially result[] in release,” Mot. to Dismiss at 16.

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Here, unlike in Thuraissigiam, Bin Lep seeks an MMC that could decide to release him

from custody. See Habeas Pet. at 32 (requesting an MMC to “determine if Petitioner must be

released”). The ultimate outcome of the relief Bin Lep seeks—no matter how tenuous or

uncertain—is “simple release” from custody as contemplated by Thuraissigiam, 140 S. Ct. at 1971.

Moreover, it is well established that “habeas corpus relief is not limited to immediate release

from . . . custody, but that the writ is available as well to attack future confinement and obtain

future releases.” Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) (emphases added). In Chatman-

Bey v. Thornburgh, the D.C. Circuit noted that the Supreme Court has “emphatic[ally]

reject[ed] . . . the proposition that habeas would not lie if the relief granted would not result in the

prisoner’s immediate release” and held that habeas is the “appropriate vehicle” for a detainee who

“maintain[s] that he is being deprived of the chance to secure his release.” 864 F.2d 804, 807, 809

(D.C. Cir. 1988) (citing Peyton v. Rowe, 391 U.S. 54 (1968)). Accordingly, the fact that Bin Lep

seeks review by a body that only may result in his future release is not an obstacle to jurisdiction

here.

In fact, another court in this District relied on this precedent to reject the government’s

argument that a Guantanamo detainee’s request for an MMC did not sound in habeas because the

relief was “probabilistic and discretionary.” Al-Qahtani v. Trump, 443 F. Supp. 3d 116, 127

(D.D.C. 2020). In doing so, the Al-Qahtani court carefully distinguished another case in this

District, Salahi v. Obama, Civ. A. No. 05-0569 (RCL), 2015 WL 9216557 (D.D.C. Dec. 17,

2015),4 which held that a Guantanamo detainee’s claim for a Periodic Review Board’s

consideration of his status did not sound in habeas because there was too much discretion involved

4

Salahi was decided before Thuraissigiam in a context entirely separate from that present here.

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in the Secretary of Defense’s ultimate decision to accept the Board’s recommendation to grant

release. See 443 F. Supp. 3d at 126–28. In its analysis, the Al-Qahtani court emphasized that

a mixed medical commission review [is] quite distinct from a Periodic Review

Board: if certain criteria are met, the detained individual must be released. A mixed

medical commission is designed to make findings about the health of an individual;

those findings lead to a result certain, not an exercise of discretion. The review will

result in [the detainee]’s release or not, which is at the core of habeas.

Id. at 127. Ultimately, the court held that “a request for review by a mixed medical commission

is a request for release” and that the petitioner’s “motion fit[] squarely into th[at] Court’s habeas

jurisdiction.” Id. at 129 (internal quotation marks omitted).

Notwithstanding this case that found an identical claim to sound in habeas, the government

argues that Al-Qahtani is no longer good law after Thuraissigiam. See Mot. to Dismiss at 16–17.

However, as discussed above, Thuraissigiam does not affect Al-Qahtani’s holding because it

stands only for the proposition that the right to administrative review of an application for asylum

is not within the scope of relief contemplated by habeas corpus, not that claims for uncertain future

release from custody are not cognizable.

The government further attempts to undermine Al-Qahtani by arguing that its

characterization of an MMC as a request for release is incorrect “even under the precedents that

led up to Thuraissigiam.” Mot. to Dismiss at 17. The government then lists a handful of cases it

claims stand for the proposition that a prisoner’s claim that would not necessarily result in relief

is not cognizable in habeas. See id. (collecting cases). But these cases are inapposite here as they

all concern whether a “claim that may be brought under § 1983 need . . . be brought first in

habeas.” Al-Qahtani, 443 F. Supp. 3d at 127.

Taking each case in turn, the government states that Skinner v. Switzer, 562 U.S. 521

(2011), held that “‘when a prisoner’s claim would not “necessarily spell speedier release,”’ the

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claim is not cognizable under habeas.” Mot. to Dismiss at 17 (emphasis omitted) (quoting Skinner,

562 U.S. at 535 n.13). But the government omits important context for that quote: “Habeas is the

exclusive remedy, we reaffirmed, for the prisoner who seeks ‘immediate or speedier release’

from confinement. Where the prisoner’s claim would not ‘necessarily spell speedier release,’

however, suit may be brought under § 1983.” Skinner, 562 U.S. at 525 (bolding and underlined

emphases added) (citation omitted). The issue in Skinner, then, was whether a postconviction

claim for DNA testing could be brought in a § 1983 action at all, or whether it was cognizable in

federal court only through a writ of habeas corpus—not whether such a claim sounds in habeas.

See id. at 524–25.

The government’s reliance on Wilkinson v. Dotson is similarly misguided—that case held

that state prisoners did not have to seek relief exclusively through a writ of habeas corpus when

challenging the constitutionality of a state’s parole procedures and that they may instead bring that

claim under § 1983. See 544 U.S. 74, 76 (2005). The Wilkinson Court did note that “claims

for future relief (which, if successful, will not necessarily imply the invalidity of confinement or

shorten its duration) are yet more distant from that core [of habeas].” Id. at 82. But Guantanamo

detainees are not restricted to bringing only core habeas claims. Kiyemba, 561 F.3d at 512–13.

And in Wilkinson, the petitioners’ ultimate release depended on the discretion of a parole review

board, see 544 U.S. at 82, which is more analogous to a Periodic Review Board as discussed in

Al-Qahtani than to an MMC, which exercises much less discretion.

Likewise, in Muhammad v. Close, the Court held that the requirement to exhaust habeas

before bringing a § 1983 claim is not implicated when the prisoner’s challenge “threatens no

consequence for his conviction or the duration of his sentence.” 540 U.S. 749, 751 (2004) (per

curiam). There, a prisoner was found guilty of an infraction stemming from a physical altercation

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with a prison official that resulted in an additional seven days’ detention and suspension of certain

privileges for 30 days. See id. at 752. The prisoner then brought a § 1983 action against the

official alleging retaliation. Id. at 753. Notably, the prisoner did not challenge the conviction for

the infraction itself and only sought relief in the form of damages. See id. The Court determined

that the prisoner “raised no claim on which habeas relief could have been granted on any

recognized theory” and thus that he could proceed under § 1983 without first exhausting habeas.

See id. at 755. Thus, the government’s description of this case—“inmate ‘raised no claim on which

habeas relief could have been granted on any recognized theory’ where he challenged ‘prison

disciplinary proceedings’ that ‘may’ have ‘affect[ed]’ the duration of time to be served ‘but “not

necessarily so’”—is quite misleading. Mot. to Dismiss at 17 (alteration in original) (quoting

Muhammad, 540 U.S. at 754–55). The prisoner only sought damages and did not challenge the

underlying disciplinary action that resulted in an extension of the duration of his confinement, a

situation quite different from the case at bar.

And in Davis v. U.S. Sentencing Commission, the D.C. Circuit held that a prisoner was not

required to bring his claim seeking a declaratory judgment that amendments to the Sentencing

Guidelines denied him equal protection in a petition for writ of habeas corpus. See 716 F.3d 660,

661–62 (D.C. Cir. 2013). In reaching this conclusion, the court reasoned that an equal protection

challenge to Guidelines amendments is not a core habeas claim because success on the claim

“would do no more than allow [the prisoner] to seek a sentence reduction, which the district court

retains the discretion to deny.” Id. at 666. First, as noted above, Guantanamo detainees can bring

non-core habeas claims in federal court. See Kiyemba, 561 F.3d at 512–13. Moreover, the instant

case involves much less discretion relevant to achieving release from custody than the relief at

issue in Davis. See Al-Qahtani, 443 F. Supp. 3d at 127 (“A mixed medical commission is designed

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to make findings about the health of an individual; those findings lead to a result certain, not an

exercise of discretion.”).

Thus, based on the above survey of relevant precedent, the Court determines that Bin Lep’s

claim for an MMC sounds in habeas corpus and accordingly this Court has subject-matter

jurisdiction over it.5

B. Procedural Arguments

Bin Lep makes a series of procedural arguments contending that the Court cannot rule on

the government’s motion as to Claim X at this point in the litigation.6 He argues that because the

government is asking the Court to rule that he is not entitled to an MMC on the merits, and relies

on materials outside the pleadings in doing so, the motion is one for an unspecified type of

judgment rather than a motion to dismiss. See Opp’n at 10–11. He contends that whether the

Court construes this request as a motion for judgment on the pleadings under Rule 12(c), a motion

for summary judgment under Rule 56, or a motion for judgment on the record under the Case

Management Order (“CMO”), it must deny the motion because a motion for judgment on the

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Bin Lep raises two additional arguments against the government’s motion to dismiss for lack of subject-

matter jurisdiction. He first argues that the Court previously decided it has subject-matter jurisdiction over Claim X,

so law of the case doctrine dictates that the Court is bound by its previous determination. See Opp’n at 13–17.

Although the Court has doubts about whether it has actually previously decided that it has subject-matter jurisdiction

on Claim X, it is not necessary for the Court to reach that issue here, given that it now determines that it has subject-

matter jurisdiction over Claim X.

He also argues that “[t]o the extent the Court wishes to consider the new declarations or exhibits in

adjudicating the 12(b)(1) Dismissal Arguments[,] . . . those arguments can only be construed as a Rule 56 motion for

summary judgment.” Opp’n at 17. But the Court has determined that it has subject-matter jurisdiction over Bin Lep’s

Claim X under the 12(b) standard, without taking matters outside of the pleadings into consideration. And even if the

Court did take matters outside the pleadings into account, that would not run afoul of Rule 12(b)(1), as the Court “may

consider material other than the allegations in the habeas petition in determining whether it has jurisdiction to hear the

case, so long as it still accepts the factual allegations in the habeas petition as true.” Hamidullah v. Obama, 899 F.

Supp. 2d 3, 7 (D.D.C. 2012).

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Bin Lep opposes the government’s motion as to Claim X only on procedural grounds. He does not directly

respond to the government’s arguments on the merits as to why he is not entitled to an MMC.

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record or on the pleadings is premature, and a motion for summary judgment is inappropriate while

discovery is still ongoing and facts remain in dispute. See id. at 31.

Bin Lep asserts that the pleadings are not yet closed because he has yet to file his traverse.

Opp’n at 32. A traverse, which is mandatory in Guantanamo proceedings, is filed by the petitioner

at the close of discovery. Id. Bin Lep suggests that the traverse is analogous to an answer under

Federal Rule of Civil Procedure 7(a). See id. Accordingly, until he files his traverse, he contends

“[i]t would be both inappropriate and inequitable to allow Respondents to proceed with judgment

on the pleadings before the pleading[s] are complete and during the pendency of a discovery

process to which they have consented.” Id. at 33.

Bin Lep also argues that summary judgment under Rule 56 or judgment on the record under

the CMO would be inappropriate here. Opp’n at 33. Judgment on the record available under the

CMO cannot occur until after the traverse is filed. Id. And although a party may file for summary

judgment at any time until 30 days after the close of discovery, “Respondents have not attempted

to make th[e] [required] factual showing” that there are no general material disputes of fact. Id. at

34, 36. Bin Lep notes, for example, that the parties disagree about certain aspects of the medical

care at Guantanamo. See id. at 38–39. Further, he contends that deciding a motion for summary

judgment before he has received all requested discovery from the government would be

inequitable. See id. at 34–35.

The government opposes Bin Lep’s procedural arguments. It contends that Bin Lep’s

“effort to reframe this action as a routine civil case governed by the Rules is incorrect.” Reply at

6. The government cites Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), which states that

“[h]abeas review for Guantanamo detainees need not match the procedures developed by Congress

and the courts specifically for habeas challenges to criminal convictions.” Id. at 876. Another

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judge in this District has also considered matters outside the pleadings when deciding a motion to

dismiss in a habeas context. In Abdulrazzaq v. Trump, the court considered material attached to

the petitioner’s opposition briefing in deciding a motion to dismiss, noting that “[t]he Supreme

Court has provided scant guidance on [what procedure is due to detainees challenging their

detention in habeas corpus proceedings], consciously leaving the contours of the substantive and

procedural law of detention open for lower courts to shape in a common law fashion.” 422 F.

Supp. 3d 281, 287 n.4 (D.D.C. 2019) (alteration in original) (quoting Al-Bihani, 590 F.3d at 870).

That court also noted that courts are “not restricted to follow the standard for addressing motions

to dismiss . . . as required in a civil action outside of the habeas context.” Id. (quoting Al Kandari

v. United States, No. 15-cv-329 (CKK), slip op. at 11 (D.D.C. Aug. 31, 2015)). And, in any event,

even if the Court construed this motion as one for summary judgment, the government argues that

“Petitioner fails to describe any disputed material fact or need for discovery precluding decision

in Respondents’ favor. Petitioner once again invokes an alleged dispute over the quality of medical

care provided [to] Petitioner by the medical staff at Guantanamo,” which is “immaterial to the

legal entitlement question.” Reply at 16.

Whether Bin Lep is entitled to an MMC is a pure legal issue. The determination does not

depend on any facts not known to the parties at this time. The parties’ disagreements about certain

aspects of the medical care at Guantanamo, for example, are not material disputes because the

nature of the medical care at Guantanamo has nothing to do with whether the relevant authorities

afford Bin Lep entitlement to an MMC, as discussed further below. Moreover, the Court is not

persuaded by Bin Lep’s procedural arguments that the Federal Rules of Civil Procedure apply

rigidly in this context. The traverse is not akin to an answer in a typical civil case, and, in any

event, the information in the traverse will not affect the outcome of this issue. Discovery on these

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issues also will not affect the merits of this claim. Thus, the Court sees no reason to delay resolving

this legal claim now and accordingly concludes that treating the government’s motion as one

seeking judgment is appropriate.

C. Entitlement to a Mixed Medical Commission

Having resolved the parties’ jurisdictional and procedural arguments, the Court will now

turn to the merits of whether Bin Lep is entitled to an MMC as a matter of law. See Mot. to

Dismiss at 22–26.

AR 190-8 implements parts of the Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention”),

which offers certain protections to some categories of enemy combatants detained during armed

conflicts. Mot. to Dismiss at 10 (citing AR 190-8 § 1-1(b), available at

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/r190_8.pdf (last accessed Mar. 30,

2023)). Most of the Third Geneva Convention’s protections apply only in the context of

international armed conflicts, defined as “all cases of declared war or of any other armed conflict

which may arise between two or more of the High Contracting Parties.” Third Geneva Convention

art. 2. The classification of an armed conflict as international or non-international is important

because the Third Geneva Convention affords fewer protections to enemy combatants captured

during an “armed conflict not of an international character.” Id. art. 3.

One protection of the Third Geneva Convention is prisoner-of-war status, which only

applies in international armed conflicts and is given to

(1) members of the armed forces of a state that is a party to the conflict as well as

members of militias or volunteer corps forming part of such armed forces, and (2)

members of other militias or volunteer corps belonging to a state that is party to the

conflict that are commanded by a responsible superior officer, have fixed

distinctive insignia, carry arms openly, and conduct their operations in accordance

16

with the laws of war, including by refraining from conducting attacks against

civilians.

Mot. to Dismiss at 10–11 (citing Third Geneva Convention art. 4(A)(1)–(2)). In addition,

provisional prisoner-of-war status is afforded to enemy combatants detained during an

international armed conflict, when there is doubt about whether they are entitled to full prisoner-

of-war status, only until their eligibility can be “determined by a competent tribunal.” Third

Geneva Convention art. 5. One prerogative afforded to prisoners of war under the Third Geneva

Convention is that a “Mixed Medical Commission[] shall be appointed to examine sick and

wounded prisoners of war[] and to make all appropriate decisions regarding them.” Id. art. 112.

AR 190-8 implements these protections, including the right to an MMC. The regulation

applies to, among other classifications, “enemy prisoners of war,” which is “[a] detained person

as defined in Articles 4 and 5 of the [Third Geneva Convention],” AR 190-8 at 33, and “other

detainees,” id. § 1-1(a). An “other detainee” is defined as a “[p]erson[] in the custody of the U.S.

Armed Forces who ha[s] not been classified as” an enemy prisoner of war (“EPW”), retained

personnel, or civilian internee, and who “shall be treated as [an] EPW[] until a legal status is

ascertained by competent authority.” Id. at 33 (citations omitted).

The government argues that Bin Lep is not entitled to an MMC under AR 190-8. Because

al Qaeda is a non-state terrorist organization and is thus not a party to the Third Geneva

Convention, Bin Lep—a member of al Qaeda—was not detained during an “international armed

conflict” and accordingly cannot be an enemy prisoner of war. See Mot. to Dismiss at 22–24. The

government contends that Bin Lep is also not eligible for the interim “other detainee” status

because that status is provided “in accordance with Article 5” of the Third Geneva Convention,

which applies solely to enemies captured during international armed conflicts. See id. at 23

(quoting AR 190-8 § 1-6(a)) (citing Third Geneva Convention arts. 4–5). Enemies captured during

17

a non-international armed conflict, however, are afforded only the protections outlined in Article

3 of the Third Geneva Convention, not the full suite of protections guaranteed in the other portions

of the treaty. The government also cites a DoD directive that states that “the provisional prisoner-

of-war protection provided by Article 5 of the Convention only applies in the context of

international armed conflicts.” Mot. to Dismiss at 24. The directive notes that

[d]uring international armed conflict, should any doubt arise as to whether a

detainee belongs to any of the categories enumerated in Article 4 of the Geneva

Convention Relative to the Treatment of Prisoners of War and as such is entitled to

the protections and privileges afforded EPWs, such detainees will be treated as

EPWs until a tribunal convened in accordance with Article 5 of the Geneva

Convention Relative to the Treatment of Prisoners of War, determines the

detainee’s status under the law of war.

DoD Directive 2310.01E § 3.8 (Mar. 15, 2022) (emphasis added).

The government lastly contends that, notwithstanding whether the “other detainee”

classification applies to those detained during non-international armed conflicts, Bin Lep is not

entitled to an MMC because his status has already been determined. See Mot. to Dismiss at 24–

26. The government cites a statement by then-President George W. Bush establishing that

“because al-Qaida is a terrorist organization that is not and cannot be a party to the Third Geneva

Convention, al-Qaida’s members are unprivileged enemy combatants to whom the full protections

of the Geneva Convention do not apply.” Id. at 24 (citing Statement by the Press Secretary on the

Geneva Convention, The White House, Off. of the Press Sec’y (Feb 7, 2002)).7 And Bin Lep was

determined to be an enemy combatant—that is, a member of al Qaeda—by a CSRT in 2007. See

Ex. A to Mot. to Dismiss [ECF No. 113-1] (designating Bin Lep an enemy combatant); Ex. B to

Mot. to Dismiss [ECF No. 113-2] (finding that Bin Lep “was part of and supporting al Qaida and

7

The D.C. Circuit has held that “[n]othing in the regulations . . . suggests that the President is not a

‘competent authority’” for the purposes of determining the status of Guantanamo detainees. Hamdan v. Rumsfeld,

415 F.3d 33, 43 (D.C. Cir. 2005), rev’d and remanded on other grounds, 548 U.S. 557 (2006).

18

associated forces”); Ex. C to Mot. to Dismiss at 1 [ECF No. 113-3] (same). The government also

cites a memorandum from the Secretary of the Army confirming that enemy detainees at

Guantanamo are not entitled to the fuller protections of the Third Geneva Convention. See Mot.

to Dismiss at 25–26 (citing Ex. D to Mot. to Dismiss [ECF No. 113-4])).

Although Bin Lep did not respond to the merits of the government’s claim, another court

in this District has already considered this question and rejected the government’s argument. In

Al-Qahtani, the court held that a Guantanamo prisoner was properly categorized as an “other

detainee” and thus entitled to an MMC. See 443 F. Supp. 3d at 130. That court rejected the

government’s argument that the petitioner’s status as an “enemy combatant” precluded him from

being an “other detainee” as defined in AR 190-8. See id. The court instead adopted petitioner’s

argument that “as an ‘enemy combatant,’ a descriptor not found in Army Regulation 190-8, he

remains an ‘other detainee’ for the purposes of the Regulation and is, by its terms, entitled to be

treated as a prisoner of war.” Id.

The Al-Qahtani court found support in Aamer v. Obama (Aamer II), 58 F. Supp. 3d 16

(D.D.C. 2014), and Al Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013). The Aamer II court

considered the issue, noting in dictum that the “contention that Petitioner’s designation as an

‘enemy combatant’ by a CSRT precludes him from being treated as an ‘other detainee’ under

Army Regulation 190–8” is “questionable.” 58 F. Supp. 3d at 25. The court observed that the Al

Warafi court considered the same issue and determined that despite petitioner’s designation as an

“enemy combatant,” he still qualified as a “medic” under AR 190-8. Id. (citing Al Warafi, 716

F.3d at 627–29). Thus, the Aamer II court reasoned that

[i]f Respondents are correct that an “enemy combatant” designation removes

Guantanamo detainees from the coverage of Army Regulation 190–8, there would

have been no need for the al Warafi[] court to conduct such an analysis. In light of

19

these precedents, Respondents put more weight on “enemy combatant” than the

term can bear.

Id. While Aamer II ultimately held that the petitioner in that case was not an “other detainee” for

separate reasons, the Al-Qahtani court relied on this reasoning to conclude that “Mr. al-Qahtani

meets the criteria for an ‘other detainee’ in Army Regulation 190-8: he is a person in the custody

of the United States and he has not been otherwise classified as either an enemy prisoner of war,

retained person, or civilian internee.” 443 F. Supp. 3d at 130.

But as the government notes, the Al-Qahtani court’s relatively brief consideration of the

question did not consider a critical issue: it “never addressed the Convention’s distinction between

international and non-international armed conflicts or between the requirements of Convention

Article 3 and prisoner-of-war privileges.” Mot. to Dismiss at 15. That did not appear to be an

issue argued by either party in that case, and the Al-Qahtani court thus did not have the benefit of

briefing on that issue. Moreover, the Al-Qahtani court’s decision logically flows from its

presumption at the time that a Guantanamo prisoner must fall into one of four categories: enemy

prisoner of war, retained person, civilian internee, or other detainee. See 443 F. Supp. 3d at 130

(finding the petitioner was properly classified as an “other detainee” because “he [wa]s a person

in the custody of the United States and he ha[d] not been otherwise classified as either an enemy

prisoner of war, retained person, or civilian internee”). But with the benefit of briefing on the

issue, the Court disagrees with that presumption and comes to a different conclusion regarding the

availability of MMCs to detainees captured during a non-international conflict.

Because Guantanamo detainees were not captured in the context of an international armed

conflict under the Third Geneva Convention’s definition of that term, but rather during a non-

international one, they are not prisoners of war and cannot be “other detainees” because those

classifications are only available to those detained during international armed conflicts. As the

20

Court sees it, that context removes Guantanamo detainees from the broad protections of the Third

Geneva Convention, granting them only the narrower set of protections in Article 3. An MMC is

only available to prisoners of war captured during an international armed conflict under the Third

Geneva Convention, and it is not part of the baseline protections outlined in Article 3 that attach

for non-prisoners of war captured during a non-international conflict. Moreover, AR 190-8 § 3-

12, the implementing provision, makes clear that an MMC is only available to enemy prisoners of

war and retained personnel who have applied for it. The Court accordingly concludes that Bin Lep

is not entitled to an MMC under the relevant governing treaty and implementing regulation and

will grant judgment in favor of the government on Claim X.

II. Claim IX: High Value Detainee Designation

Bin Lep also challenges his designation as an HVD and the conditions of confinement

associated with that status. See Habeas Pet. ¶¶ 90–93. He argues that this classification violates

the Fifth and Eighth Amendments’ prohibitions on “arbitrary imposition of punishment not

authorized by law” and the DTA’s prohibition on cruel and unusual punishment. See id. Bin Lep

contends that

Respondents’ continuing designation of Petitioner as a HVD imposes direct,

material, and significant burdens on his conditions of confinement and his access

to counsel. Respondents’ imposition of this label on Petitioner based upon not

anything he has done but on its decision to subject him to ‘enhanced interrogation

techniques’ is an arbitrary and capricious imposition upon his liberty interest.

Id. ¶ 93. Specifically, Bin Lep alleges that the HVD designation results in conditions of

confinement that restrict his ability to access counsel and contact his family members. See id.

¶ 19.

The government argues that the Court should either dismiss, grant judgment in its favor

on, or hold in abeyance this claim regarding Bin Lep’s HVD designation. Mot. to Dismiss at 26.

21

The government construes Bin Lep’s claim as a challenge to the factual predicate for his initial

detention and to “his past treatment in CIA and DoD custody and his current conditions of

confinement.” Id. at 27. The government thus urges that Bin Lep’s “conception of the HVD

designation, as relevant to any potentially proper habeas corpus claim under the law of this Circuit,

is incorrect.” Id. His designation as an HVD, the government explains, “is not correlated to his

factual basis for detention”; rather, his designation is a result of his prior detention in the CIA’s

former RDI program. Id. “HVDs, such as Petitioner, are in the unique position of potentially

possessing information relating to the RDI program that remains classified up to the TOP SECRET

level[,] that is, involving the potential for exceptionally grave damage to national security.” Id. at

28–29. Because Bin Lep may have “learned or discerned highly sensitive classified information”

through that program, there are information-security measures associated with the HVD status to

ensure that any top secret information Bin Lep has knowledge of is protected. See id. at 27.

Because this designation is related to a legitimate government interest, the government believes it

is entitled to judgment on that claim. Id. Moreover, to the extent Bin Lep challenges his past

conditions of detention in CIA or DoD custody, the government argues that is not a cognizable

basis for a habeas claim and/or overlaps with issues being considered by the military tribunal, so

the Court should either dismiss the claim for lack of jurisdiction or hold it in abeyance pending the

resolution of the military commission proceedings. See id. at 27–28.

For the reasons explained below, the Court will dismiss any aspect of Claim IX challenging

current or past conditions of confinement and will hold in abeyance any aspect of Claim IX that

challenges the factual predicate for his detention, placement in the RDI program, and associated

HVD designation.

22

A. Current Conditions of Confinement

Bin Lep challenges his current conditions of confinement resulting from his HVD

designation under the Fifth Amendment, the Eighth Amendment, and the DTA. See Habeas Pet.

¶¶ 90–93. The government urges that, under each of these bases, the Court should either dismiss

the claim under Rule 12(b)(6) or enter judgment in the government’s favor. See Mot. to Dismiss

at 28–43.

i. Procedural Arguments

Bin Lep first argues that the government’s motion for dismissal under Rule 12(b)(6) is not

procedurally proper at this stage of the litigation: “because Respondents failed to present the

Dismissal Arguments attacking the legal sufficiency of Petitioner’s claims in their Factual Return

or their various motions preceding that Return, those arguments may no longer be raised in a 12(b)

motion to dismiss.” Opp’n at 26. Under Rule 12(b), motions to dismiss “must be made before

pleading if a responsive pleading is allowed.” The government opposes Bin Lep’s procedural

arguments, first noting that Bin Lep’s “effort to reframe this action as a routine civil case governed

by the Rules is incorrect.” Reply at 6. The government also notes the context in which the factual

return was filed supports that it is distinguishable from an answer in a typical civil case. Here, the

Court ordered the government to file an updated factual return while the remainder of the

proceedings were stayed. See June 25, 2021 Order [ECF No. 85]. In response to the government’s

objections to that Order, this Court reasoned that

[t]he evidence supporting Bin Lep’s detention concerns events that transpired

nearly two decades ago and will continue to grow stale if the due date for the factual

return is further delayed. Moreover, while some time and resources are, of course,

involved in filing any factual return, here the government need only update the

2009 version of the factual return, which it has said it can do in “reasonably short

order.” . . . The Court will not at this time “churn” over the material in the factual

return or issue any rulings with respect to the evidence contained therein. It will

only require the government to fulfill its obligation to disclose the factual basis for

Bin Lep’s detention under the AUMF.

23

Bin Lep v. Biden, Civ. A. No. 20-3344 (JDB), 2021 WL 2634663, at *10–11 (D.D.C. June 25,

2021). Thus, as the government puts it, “[i]n such circumstances, Petitioner’s contention that

Respondents were obligated, prior to filing the Factual Return, to raise their arguments for

dismissal of Claims IX and X” is unreasonable. Reply at 12–13. The Court agrees, especially in

light of the flexible nature of habeas proceedings. See Al-Bihani, 590 F.3d at 876 (“Habeas review

for Guantanamo detainees need not match the procedures developed by Congress and the courts

specifically for habeas challenges to criminal convictions.”); see also supra pp. 14–15. The Court

accordingly concludes that dismissal under Rule 12(b)(6) is not procedurally improper at this

juncture.

ii. Eighth Amendment and DTA Claims

Bin Lep challenges under the Eighth Amendment and the DTA his current conditions of

confinement imposed pursuant to his HVD designation. See Habeas Pet. ¶¶ 90–93. It is first worth

noting that the DTA does not provide a private cause of action. Doe v. Rumsfeld, 683 F.3d 390,

397 (D.C. Cir. 2012) (“[T]he DTA created no private cause of action. Neither in that Act nor any

other has Congress extended a cause of action for detainees to sue federal military and government

officials in federal court for their treatment while in detention.”). And while there may be some

controversy as to whether the Eighth Amendment applies to Guantanamo detainees, see Al Bahlul

v. United States, 603 F. Supp. 3d 1151 (U.S.C.M.C.R. 2022) (“We note the unresolved controversy

over whether the Eighth Amendment applies to prisoners at Guantanamo Bay, Cuba.” (citing Ali

v. Rumsfeld, 649 F.3d 762, 770–72 (D.C. Cir. 2011)), another court in this District recently

determined that in a Guantanamo habeas case challenging conditions of confinement, “[t]here

[wa]s no dispute as to whether [and Eighth Amendment] claim is properly before the Court: a

person ‘in custody may challenge the conditions of his confinement in a petition for habeas

24

corpus.’” Abdulrazzaq v. Trump, 422 F. Supp. 3d 281, 286 (D.D.C. 2019) (quoting Aamer I,

742 F.3d at 1032).

But Bin Lep has not sufficiently pled an Eighth Amendment claim based on his conditions

of confinement. At the outset, it is not entirely clear whether Guantanamo detainees should be

viewed as pretrial detainees or convicted prisoners under the Eighth Amendment—an important

distinction, as the classifications carry different standards. See Brogsdale v. Barry, 926 F.2d 1184,

1187 n.4 (D.C. Cir. 1991) (“[T]he threshold for establishing a constitutional violation is clearly

lower for the pretrial detainees.”). For pretrial detainees, “the question is whether prison

conditions ‘amount to punishment of the detainee.’ A condition may amount to punishment if it

‘is not reasonably related to a legitimate [institutional] goal—if it is arbitrary or purposeless.’” Id.

(quoting Bell v. Wolfish, 441 U.S. 520, 535, 539 (1979)). “For convicted prisoners, the question

is not whether prison conditions amount to punishment—for convicts plainly may be punished—

but rather whether the conditions ‘deprive inmates of the minimal civilized measure of life’s

necessities.’” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Although the

government contends that the latter standard is more suitable here, see Mot. to Dismiss at 35

(“Given the requirement in Article 3 of the Geneva Convention that detainees such as Petitioner

be treated humanely, the . . . standard for [convicted criminals] would seem the most apt with

respect to HVD conditions.” (citation omitted)), the Court need not decide this question as Bin

Lep’s claim fails under either standard.

For convicted criminals, “extreme deprivations are required to make out a conditions-of-

confinement claim [under the Eighth Amendment]. . . . [O]nly those deprivations denying the

minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth

Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (internal quotation marks and

25

citation omitted). Bin Lep alleges that his HVD status “has a direct impact on his access to counsel

and his conditions of confinement.” Habeas Pet. ¶ 19. Specifically, he complains that “[t]he

attorneys and staff of HVDs require TS/SCI/SAP clearances to meet their clients, and must comply

with separate and more onerous handling requirements under this Court’s protective order than

those which govern counsel for Low Value Detainees.” Id. He also alleges that the conditions of

his confinement in the HVD camp are “much harsher” than those in the other camp because “the

Government has insisted on more restrictive conditions on Petitioner’s contact with family

members, which is extremely limited and mediated through unreliable technology.” Id. Even

taking Bin Lep’s allegations as true and viewing them in the light most favorable to him, these

alleged conditions are not “extreme deprivations” necessary to make out an Eighth Amendment

claim. “Deprivations such as infrequent or no visits from family . . . simply do not meet the

threshold of ‘extreme deprivations’ required to state an Eighth Amendment claim regarding

conditions of prison confinement.” Simmons v. Wolff, 594 F. Supp. 2d 6, 9 (D.D.C. 2009).

Pretrial detainees, on the other hand, must show that the challenged conditions are

“arbitrary or purposeless”—that is, not “reasonably related to a legitimate goal.” Bell, 441 U.S. at

539. “Thus, if a particular condition or restriction of pretrial detention is reasonably related to a

legitimate governmental objective, it does not, without more, amount to ‘punishment.’” Id. The

only allegation on the face of Bin Lep’s habeas petition related to the arbitrariness of the HVD

designation is that “Respondents’ imposition of this label on Petitioner [is not] based

upon . . . anything he has done but on its decision to subject him to ‘enhanced interrogation

techniques’” and therefore “is an arbitrary and capricious imposition upon his liberty interests.”

Habeas Pet. ¶ 93. But even taking this allegation as true, it does not state a claim for an Eighth

Amendment violation. A designation need not be based on something the detainee “has done” in

26

order to be reasonably related to a government objective, and a designation based on something

other than what the detainee “has done” is not necessarily arbitrary. Thus, without more, the

allegation is merely conclusory, which is insufficient to state a claim. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”).

To be sure, Bin Lep makes more detailed allegations in his brief about the arbitrariness of

the HVD designation, specifically “that the creation of the High-Value Detainee designation bore

no relationship to any penological interest but was instead designed to conceal evidence of crimes.”

Opp’n at 37. But he did not make these allegations in his habeas petition, as he claims in his brief.

See id. (“Petitioner has plausibly alleged [this], in reliance on publicly available records . . . .”).

The Court cannot consider allegations outside the pleadings in a motion to dismiss.

But even if it did, Bin Lep’s claim in his briefing that the classification was designed to

“conceal evidence of crimes” is not supported by any further detail or explanation beyond one

additional allegation: that a certain government agent, when discussing a different Guantanamo

detainee who was classified as an HVD, stated in 2002 that said detainee “should remain

incommunicado” for the rest his life. Id. (quoting Senate Select Committee on Intelligence,

Committee Study of the CIA’s Detention and Interrogation Program 35 (2014)). Presumably, Bin

Lep wants the Court to draw the inference that all HVDs were so designated to ensure that they

could not speak about any potential mistreatment while in the RDI program. But that inference

runs counter to the facts alleged: Bin Lep acknowledges that he has access to counsel and

communication with family despite having to go through additional procedures to speak with them.

Habeas Pet. ¶ 19. And the facts alleged in his petition about his ability to communicate—for

example, that his attorneys must have a top secret clearance, id.—have a more “obvious alternative

27

explanation,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007): the government’s designation

of those formerly in the RDI program as HVDs was due to information-security concerns, see infra

p. 28 n.8. Cf. Twombly, 550 U.S. at 567 (finding an allegation of illicit activity insufficient to

state a claim because there was an “obvious” and “natural” “alternative explanation” for the

conduct). At bottom, Bin Lep merely raises in his brief the possibility of an improper purpose, but

that does not pass muster at this stage as he has “not nudged [his] claims across the line from

conceivable to plausible,” id. at 570. “[W]here the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.

8(a)(2)). Thus, the Court will dismiss any aspect of Claim IX challenging his current conditions

of confinement under the Eighth Amendment and the DTA.8

8

The government also argues that the Court should enter judgment in its favor on the Eighth Amendment

claim because the HVD designation is, in fact, reasonably related to a legitimate government interest. See Mot. to

Dismiss at 35. It argues that the CIA has a legitimate interest in protecting any classified knowledge participants of

the RDI program may have gained and “ensur[ing] that such classified information is protected from improper or

unnecessarily widespread disclosure.” Id. at 29. As such, HVDs are housed separately from non-HVDs at

Guantanamo, and . Id. at

29–30. These concerns about information security are also manifested in the different protective order protocols in

cases concerning HVDs versus non-HVDs, including more rules about how HVDs communicate with their counsel.

Id. at 30. Other than some additional security measures like those described above, the government claims the

conditions of confinement for HVDs and non-HVDs are similar:

[b]oth camps and have similar communal living conditions, in which

detainees may freely interact with one another in communal spaces . HVDs,

like non-HVDs, have access to quality medical care and to legal correspondence. Religious activity

accommodations and camp privileges (such as access to television, a food pantry, and various forms

of media), as well as disciplinary practices, are similar between HVDs and non-HVDs. Relatedly,

HVDs, like non-HVDs, , are permitted video family calls and written

communications with family.

Id. at 31 (citations omitted). The government represents that

Id. at 31–32. For his

part, Bin Lep disagrees, claiming that “the creation and maintenance of the High-Value Detainee designation was

done for . . . unlawful and improper purposes.” Opp’n at 37.

Unlike Claim X regarding Bin Lep’s entitlement to an MMC, which was a pure legal issue, this claim involves

mixed questions of law and fact. Thus, the Court declines to decide this issue on the merits at this time. But Bin

Lep’s habeas petition does not contain sufficient allegations to nudge his claims from conclusory to plausible and thus

does not entitle him to further discovery and a decision on the merits.

28

iii. Fifth Amendment Claims

Bin Lep also challenges his HVD designation under the Fifth Amendment’s due process

clause. Habeas Pet. ¶¶ 90–93. It is not abundantly clear from the face of the pleadings and briefs

whether Bin Lep mounts a procedural or substantive due process challenge; nor is it clear what

process he claims was due and how the process he received was deficient (if it is a procedural

challenge) or what liberty interest was at stake (if it is a substantive challenge). See id.; Opp’n at

29. It is even less clear whether he challenges his designation as an HVD or the factual predicate

of his confinement in the first instance. See Habeas Pet. ¶¶ 90–93; Opp’n at 29. Moreover,

whether and what process is due to a Guantanamo detainee is currently in flux: the issue of whether

Fifth Amendment protections apply to Guantanamo detainees is currently pending before the en

banc D.C. Circuit. See Al Hela v. Trump, No. 19-5079 (D.C. Cir.); see also Al Hela v. Trump,

972 F.3d 120, 138–46 (D.C. Cir. 2020), reh’g and reh’g en banc granted, judgment vacated sub

nom. Al -Hela v. Biden, No. 19-5079, 2021 WL 6753656 (D.C. Cir. Apr. 23, 2021). Here,

however, even assuming Bin Lep is entitled to the Fifth Amendment’s full protection, he fails to

plead facts sufficient to state such a claim.

To the extent Bin Lep challenges his HVD designation because his association with al

Qaeda is not strong enough to warrant that classification, his argument is inapposite because the

HVD classification is not based on “Petitioner’s role in al-Qaida or his threat profile”; instead, “the

relevant basis is the straightforward and historical fact that Petitioner was detained in the former

RDI program—a fact that Petitioner readily admits.” Mot. to Dismiss at 36. Thus, there is no

“process” to challenge on those grounds. And to the extent Bin Lep challenges the process of his

designation as an enemy combatant and the conclusion that he was associated with al Qaeda—

which served as the factual predicate for his confinement and his placement in the RDI program—

29

that claim overlaps with the issues at the heart of the ongoing military commission proceedings

and thus should be held in abeyance pending the outcome of those proceedings. See infra pp. 32–

33.9

Also fatal to his claim (whether under a procedural or substantive theory), Bin Lep fails to

allege a cognizable “liberty interest” of which he has been deprived. The Supreme Court has held

that “the Constitution itself does not give rise to a liberty interest in avoiding transfer to more

adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). While such

a liberty interest can be created by state regulation, Sandin v. Conner, 515 U.S. 472, 483–84 (1995)

(“States may under certain circumstances create liberty interests which are protected by the Due

Process Clause.”), even if such a liberty interest has been created here (as to which the Court is

doubtful, see Mot. to Dismiss at 38), such an interest must “impose[] atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 484.

As explained above, Bin Lep has not alleged any “significant hardship[s]” as a result of his HVD

designation. Put simply: “Petitioner does not have, and has never had, any right to assignment to

a non-HVD facility.” Mot. to Dismiss at 38.

Insofar as Bin Lep alleges a substantive due process claim, he has not adequately pled

another essential element of the claim: that the classification “is [not] reasonably related to

legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987); accord Hatim v.

Obama, 760 F.3d 54, 59 (D.C. Cir. 2014) (holding in a Guantanamo case challenging conditions

of confinement that “Turner requires that we look to four factors to determine if these new policies

are reasonable[, including] . . . whether there is a ‘valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it’” (quoting Turner,

9

The fact that Bin Lep currently has the opportunity to challenge the factual predicate for his detention in his

ongoing military proceedings undermines his Fifth Amendment procedural due process claim in any event.

30

482 U.S. at 89)). As discussed above in the Eighth Amendment context, while Bin Lep makes a

more detailed allegation as to the improper purpose of the HVD status in his briefs, he does not do

so in his petition. The petition merely states in conclusory fashion that the designation is

“arbitrary” because it is not “based upon . . . anything he has done but on [the government’s]

decision to subject him to ‘enhanced interrogation techniques.’” Habeas Pet. ¶ 93.

But even taking this extremely bare-bones allegation as true, it is not enough to make out

a substantive Fifth Amendment due process claim: the government’s decision to subject him to

“enhanced interrogation techniques” could be a reasonable basis for imposing the restrictions

associated with his HVD status if, as the government claims, the exposure to those tactics in turn

exposed Bin Lep to highly sensitive top secret information that could harm national security if

compromised. Moreover, as discussed above, even considering the color Bin Lep adds to this

allegation in his brief, that would not elevate his claim out of the realm of pure speculation. See

supra pp. 27–28. Thus, the Court will also dismiss any Fifth Amendment dimension of Claim IX

for failure to state a claim.

B. Past Conditions of Confinement and Factual Predicate Underlying Detention

The government also argues that that Court should dismiss any aspects of Claim IX that

relate to Bin Lep’s past conditions of confinement because they are not cognizable habeas claims,

or it should abstain from ruling on such issues because they overlap with the military commission

proceedings. See Mot. to Dismiss at 43–44.

Bin Lep opposes the government’s arguments. He again invokes the law of the case

doctrine to argue that because the Court has already decided it has jurisdiction over Claim IX, the

Court is bound by that decision here. See Opp’n at 40–41. But as discussed above, see supra p.

13 n.5, the Court is doubtful that it “decided” it had jurisdiction over Claims IX and X in any

meaningful sense when it elected not to hold them in abeyance. In any event, any dimension of

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Claim IX challenging the underlying predicate for detention was not known to the Court at the

time of the previous decision, so the law of the case is not applicable. See Bin Lep, 2022 WL

123957, at *15 (describing Claim IX as a challenge to his “designation as a High Value Detainee,”

which “has infringed many of his rights,” without acknowledging any aspect of the claim that

relates to past conditions of confinement or the factual predicate of his detention).

To the extent Bin Lep challenges the conditions of his confinement during the RDI

program, that is not a cognizable basis for a habeas claim because he is no longer experiencing

those conditions of confinement. See Aamer I, 742 F.3d at 1035 (noting that the relevant question

in a habeas petition challenging conditions of confinement is whether “the conditions in which the

petitioner is currently being held violate the law” (emphasis added)). The Court would not be able

to fashion an appropriate habeas remedy on any aspect of Bin Lep’s claim relating to past

conditions, further demonstrating that it is not a claim over which the Court has subject-matter

jurisdiction.

Regarding the aspect of Claim IX that challenges the factual predicate of his HVD

designation, Bin Lep disagrees with the government’s contention that when the Court decided not

to hold Claim IX in abeyance in its previous decision, it did not appreciate the breadth of the claim

and the extent to which it challenges the factual predicate supporting his placement in the RDI

program in the first instance. See Opp’n at 41. He emphasizes that “[i]n declining to abstain, the

Court noted that Petitioner had alleged that the ‘designation imposes “significant burdens on his

conditions of confinement” and that his designation is “based upon not anything he has done but

on [the government’s] decision to subject him to enhanced interrogation techniques.”’” Id.

(quoting Bin Lep, 2022 WL 123957, at *15). But the Court was not referencing any potential

aspect of the claim that challenged Bin Lep’s placement in the RDI program based on his level of

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involvement in al Qaeda—it was making the point that Bin Lep’s claim was broader than merely

an “access to counsel claim,” as the government contended. Bin Lep, 2022 WL 123957, at *15.

That is, as the Court explained, it did “not view this challenge to Bin Lep’s designation as solely

an access to counsel claim merely because that is one of several rights Bin Lep alleges the

government has violated” but rather construed it to be “broader than respondents admit[ted]”

because the claim “challenges Bin Lep’s designation as a High Value Detainee and argues that this

designation has infringed many of his rights.” Id. Yet, when the Court made the decision not to

hold Claim IX in abeyance, it did not consider the claim to concern Bin Lep’s involvement in al

Qaeda and his initial placement in the RDI program—the underlying conditions causing his HVD

designation.

The Court has already held Bin Lep’s seventh habeas claim—“that the government may

not detain Bin Lep since he has never been a member of or substantially supported al Qaeda or an

associated force engaged in hostilities against the United States or its coalition partners”—in

abeyance because it “significantly overlaps with a question that the military commission will

confront when ruling on statutory jurisdictional issues in the proceeding against him.” Bin Lep,

2022 WL 123957, at *15 (internal quotation marks omitted). The same reasoning holds true here,

to the extent Bin Lep challenges the “factual predicate”—his level of association with al Qaeda—

for his status as an HVD.

Thus, the Court will dismiss for lack of jurisdiction any part of Claim IX that challenges

his past conditions of confinement and hold in abeyance any aspect of the claim that challenges

the factual predicate for his detention, his placement in the RDI program, or his subsequent HVD

designation.

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III. Discovery Motion

On March 14, 2022, Bin Lep also filed a motion for discovery to develop the record on

Claims IX and X. Disc. Mot. at 1. Specifically, he seeks five categories of information:

(1) exculpatory information, (2) conditions of confinement information, (3) high-value detainee

policy, (4) his designation as a high-value detainee, and (5) the identities of possible witnesses.

See id. at 3–11.

Because there are no live claims remaining in the habeas litigation after this decision—as

discussed above, the Court will either dismiss, grant judgment in favor of the government, or hold

in abeyance all aspects of Claims IX and X, and the remaining habeas claims are still held in

abeyance pending the outcome of the military commission proceedings—no further discovery is

appropriate at this time. Hence, the Court will deny Bin Lep’s discovery motion as moot or, as to

any claims held in abeyance that still remain after the resolution of the military commission

proceedings, as premature at this time.

Conclusion

For the foregoing reasons, the Court will enter judgment in the government’s favor as to

Claim X; dismiss for failure to state a claim any aspect of Claim IX challenging current conditions

of confinement; dismiss for lack of jurisdiction any aspect of Claim IX challenging past conditions

of confinement; hold in abeyance any aspect of Claim IX that challenges the factual predicate for

detention; and accordingly deny the discovery motion as moot or premature. Hence—at least until

the resolution of the military commission proceedings—there are no live claims remaining in this

habeas litigation. An Order consistent with this Memorandum Opinion will issue on this date.

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/s/

JOHN D. BATES

United States District Judge

Dated: March 30, 2023

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