Muhammad Husayn v. Gates

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ZAYN AL ABIDIN MUHAMMAD

HUSAYN (ISN #10016),

Petitioner,

v. Civil Action No. 08-1360

(EGS)

LLOYD AUSTIN, et al.,

Respondents.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Petitioner’s Motion for Order

Granting Writ of Habeas Corpus. See generally Mot. for Order

Granting Writ of Habeas Corpus (“Habeas Mot.”), ECF No. 488. 1

Petitioner claims that his continued detention at Guantanamo Bay

is unconstitutional under the Due Process Clause of the Fifth

Amendment to the U.S. Constitution and invalid under the 2001

Authorization for Use of Military Force (“AUMF”). See generally

id. Respondents oppose, arguing that Petitioner may not invoke

Due Process Clause protections and that Petitioner’s detention

is lawful under the AUMF. See generally Resp’ts’ Opp’n, ECF No.

500.

Upon careful consideration of Petitioner’s motion,

Respondents’ opposition, the reply thereto, the arguments of

1 When citing electronic filings throughout this opinion, the

Court cites to the ECF header page number, not the original page

number of the filed document.

amici, 2 and the applicable law, and for the reasons explained

below, the Court DENIES Petitioner’s motion.

I. Background

Zayn Husayn, also known as Abu Zubaydah, (“Petitioner”) was

born in Palestine and raised in Saudi Arabia. He has been

detained at the U.S. Naval Base in Guantanamo Bay, Cuba

(“Guantanamo”) since September of 2006, having been captured on

or about March 28, 2002 in Faisalabad, Pakistan and held at

various “secret black sites” until his transfer to Guantanamo.

His detention is based on Respondents’ allegation that he was

part of, and substantially supported, al Qaeda and associated

forces.

The Court recently ruled that Petitioner’s continued

detention is authorized by the AUMF. See generally Husayn v.

Austin, No. 08-cv-1360, 2022 WL 2093067 (D.D.C. June 10, 2022).

The AUMF permits the President “to use all necessary and

appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided

the terrorist attacks that occurred on September 11, 2001, or

harbored such organizations or persons.” Authorization for Use

of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224

(2001). In the 2012 National Defense Authorization Act (“2012

2 The Court appreciates the analysis provided by the amici.

2

NDAA”) Congress reaffirmed “the authority of the President to

use all necessary and appropriate force pursuant to the [AUMF],”

including “[d]etention under the law of war without trial until

the end of the hostilities authorized by the [AUMF].” National

Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-

81 § 1021(a), (b)(2), (c)(1), 125 Stat. 1298, 1562.

“The AUMF authorizes detention for the duration of the

conflict between the United States and the Taliban and al

Qaeda.” Al-Alwi v. Trump, 901 F.3d 294, 299 (D.C. Cir. 2018);

see also Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011)

(citing Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)(“The AUMF,

among other things, authorizes the Executive Branch to detain

for the duration of hostilities those individuals who are part

of al Qaeda or the Taliban.”)). “Neither [the AUMF nor the 2012

NDAA] places limits on the length of detention in an ongoing

conflict.” Id. at 297. “[T]he AUMF remains in force if

hostilities between the United States and the Taliban and al

Qaeda continue.” Id. (citing Ali v. Obama, 736 F.3d 542, 552

(D.C. Cir. 2013)(“[T]he 2001 AUMF does not have a time limit,

and the Constitution allows the detention of enemy combatants

for the duration of hostilities.”)).

Whether Petitioner’s continued detention “remains necessary

to protect against a significant security threat to the United

States”—as distinct from its legality under the AUMF and whether

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detention is consistent with Petitioner’s habeas rights—is

reviewed on a periodic basis by the Guantanamo Bay Periodic

Review Board (“PRB”). Ali v. Trump, 959 F.3d 364, 368 (D.C. Cir.

2020)(citing Exec. Order No. 15,567, 76 Fed. Reg. 13, 277 (March

7, 2011)(establishing the Periodic Review Board). Respondent

represents that the result of Petitioner’s initial PRB review

was announced in September 2016, with the result being that he

was designated for continued detention. Resp’ts’ Opp’n, ECF No.

500 at 15. Since he was designated for continued detention at

that time, Petitioner is eligible for another full PRB review

every three years, see Exec. Order 13,567 at § 3(b), 76 Fed.

Reg. 13,277 (Mar. 7, 2011); and for a file review every six

months, see id. § 3(c). Respondent represents that a subsequent

PRB was completed in April 2017 and another was ongoing as of

January 2018. Resp’ts’ Opp’n, ECF No. 500 at 15.

In the most recently-completed review of Petitioner’s

detention in March 2020, the Periodic Review Board made the

following determination:

The Periodic Review Board, by consensus,

determined that continued law of war detention

of the detainee remains necessary to protect

against a continuing significant threat to the

security of the United States.

In making this determination, the Board

considered that regardless of his claim that

he was not a formal member of al Qaida, his

past involvement in jihadist activity to

include probably serving as one of Usama bin

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Ladin’s most trusted facilitators and his

admitted abilities as a long-term facilitator

and fundraiser for extremist causes.

Additionally, detainee’s lack of remorse for

his extensive role in training and

facilitating large numbers of extremists,

continued habit of viewing certain persons and

countries as his enemies, and personal

attributes and beliefs that make him

susceptible to reengagement.

See Periodic Review Board, Unclassified Summary of Final

Determination for ISN 10016 (Mar. 5, 2020),

https://www.prs.mil/Portals/60/Documents/ISN10016/SubsequentHear

ing1/200305_UPR_ISN10016_SH1_FINAL_DETERMINATION_PRB.pdf. 3

Additionally, another Subsequent Full Review began in 2021; a

hearing was held in July 2021 and the final determination has

not yet been posted. See Periodic Review Secretariat, Subsequent

Full Review for ISN 10016, https://www.prs.mil/Review-

Information/Subsequent-Full-Review/ (last visited May 26, 2023).

On January 11, 2018, Petitioner and ten other detainees

jointly filed the instant motion. See Habeas Mot., ECF No. 488.

An identical motion was filed in each case, and Petitioners and

Respondents filed identical briefings in all cases. In August

2018, the motion was denied in one of the cases. See Ali v.

3 “The Court takes judicial notice of the

official government documents and other sources from

[DOD’s] government website as ‘sources whose accuracy cannot

reasonably be questioned.’” Humane Soc'y of United States v.

Animal & Plant Health Inspection Serv., 386 F. Supp. 3d 34, 40

n.2 (D.D.C. 2019)(quoting Fed. R. Evid. 201(b)(2)).

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Trump, 317 F. Supp. 3d 480 (2018). That denial was affirmed by

the Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”), see Ali, 959 F.3d 364; and the petition for the writ

of certiorari was denied, Ali v. Biden, 141 S.Ct. 2657 (2021).

II. Analysis

A. Petitioner’s Detention Does Not Violate Due Process

Petitioner argues that “[t]he Due Process Clause of the

Constitution applies at Guantanamo and places substantive

limitations on executive detention of the kind at issue here,

including a durational limitation that compels relief regardless

of the original basis for detention.” Habeas Mot., ECF No. 488

at 16. The D.C. Cir has rejected this same argument as

“sweep[ing] too far,” Ali v. Trump, 959 F.3d 364, 368 (D.C. Cir.

2020); providing the following guidance regarding the

applicability of Due Process Clause protections to Guantanamo

detainees:

The Supreme Court's decision in Boumediene v.

Bush, 553 U.S. 723, 128 S.Ct. 2229, 171

L.Ed.2d 41 (2008), unequivocally held that

Guantanamo Bay detainees must be afforded

those procedures necessary to ensure

“meaningful review” of the lawfulness of their

detention, id. at 783, 128 S.Ct. 2229. See

Qassim, 927 F.3d at 524. In particular,

detainees are constitutionally entitled to

“those ‘procedural protections’ ” that are

“necessary (i) to ‘rebut the factual basis for

the Government's assertion that [the detainee]

is an enemy combatant’; (ii) to give the

prisoner ‘a meaningful opportunity to

demonstrate that he is being held pursuant to

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the erroneous application or interpretation of

relevant law’; and (iii) to create a record

that will support ‘meaningful review’” by

federal courts. Id. at 528–529 (formatting

modified) (quoting Boumediene, 553 U.S. at

779, 783, 128 S.Ct. 2229).

In identifying those constitutional

protections for detainees, the Supreme Court

pointed both to the Constitution's guarantee

of habeas corpus, U.S. CONST. art. I, § 9, cl.

2 (commonly known as the Suspension Clause),

and the Due Process Clause. Boumediene, 553

U.S. at 771–792, 128 S.Ct. 2229; see Qassim,

927 F.3d at 529.

Circuit precedent has not yet comprehensively

resolved which “constitutional procedural

protections apply to the adjudication of

detainee habeas corpus petitions,” and whether

those “rights are housed” in the Due Process

Clause, the Suspension Clause, or both.

Qassim, 927 F.3d at 530. In this case, Ali has

chosen not to ground any of his claims for

procedural protections in the Suspension

Clause. So that issue is not before us.

Instead, Ali's main argument puts all of his

eggs in one constitutional basket. He argues

that the Due Process Clause's procedural and

substantive requirements apply wholesale,

without any qualifications, to habeas corpus

petitions filed by all Guantanamo detainees.

Ali, 959 F.3d at 368. 4

4 Accordingly, the Court need not reach the parties’ arguments

regarding whether or not the Due Process Clause applies to

Guantanamo detainees. The Ali Court rejected “[tt]he district

court’s decision that the Due Process Clause is categorically

inapplicable to detainees at Guantanamo Bay . . . .” Ali, 959

F.3d at 368. And the D.C. Circuit has yet to decide whether the

Due Process Clause squarely applies to Guantanamo detainees,

recently determining that “deciding the applicability of the Due

Process Clause is unnecessary here, where, as explained below,

we find that the habeas procedures [Petitioner] received

actually satisfy what the Clause would require.” Al-Hela v.

Biden, 66 F.4th 217, 227 (D.C. Cir. 2023).

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In rejecting the same due process argument made in the

instant motion, the D.C. Circuit stated:

For starters, the argument is in substantial

tension with the Supreme Court's more

calibrated approach in Boumediene, which tied

the constitutional protections afforded to

Guantanamo Bay detainees’ habeas corpus

proceedings to their role in vindicating the

constitutional right to the Great Writ and the

judicial role in checking Executive Branch

overreach. See 553 U.S. at 798, 128 S.Ct. 2229

(“[P]etitioners may invoke the fundamental

procedural protections of habeas corpus.”);

id. at 779–783, 793–795, 128 S.Ct. 2229. The

court stressed that the scope of

constitutional protections must “turn on

objective factors and practical concerns, not

formalism.” Id. at 764, 128 S.Ct. 2229. Yet

Ali argues for only a formal and unyielding

line.

Ali's argument that the Due Process Clause's

substantive protections apply with full force

to all detainees at Guantanamo Bay also runs

crosswise with this court's decision in

Kiyemba v. Obama, which held that, for

Guantanamo Bay detainees, the claimed

substantive due process right to release into

the United States had no purchase because a

noncitizen who seeks admission to the United

States generally “may not do so under any

claim of right.” 555 F.3d 1022, 1027 (D.C.

Cir. 2009), vacated and remanded, 559 U.S.

131, 130 S.Ct. 1235, 175 L.Ed.2d 1070,

reinstated in relevant part, 605 F.3d 1046,

1047– 1048 (D.C. Cir. 2010). That case refutes

Ali's claim that the substantive protections

of the Due Process Clause apply across the

board to all Guantanamo Bay detainees. And Ali

has abstained from pressing any more gradated

or as-applied Due Process Clause argument

here.

In sum, Boumediene and Qassim teach that the

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determination of what constitutional

procedural protections govern the

adjudication of habeas corpus petitions from

Guantanamo detainees should be analyzed on an

issue-by issue basis, applying Boumediene’s

functional approach. The type of sweeping and

global application asserted by Ali fails to

account for the unique context and balancing

of interests that Boumediene requires when

reviewing the detention of foreign nationals

captured during ongoing hostilities.

Id. at 369.

Accordingly, the Court will apply a functional approach

here. Petitioner argues that his “continuing detention violates

[his] fundamental due process rights” because “detention without

charge or trial of this length, which is still without

foreseeable end and potentially permanent, violates the Due

Process Clause’s durational limits on detention; under President

Trump’s animus-driven decree to prevent the release of any

detainee regardless of individual circumstances or bona fide

security assessments renders such prolonged detention arbitrary

and unlawfully punitive.” Habeas Mot., ECF No. 488 at 21. 5

5 The Court does not reach the argument that detention is not

justified by a preponderance of the evidence standard because

Petitioner’s habeas proceeding has not yet been conducted.

Habeas Mot., ECF No. 488 at 23-26. The deadline for Petitioner’s

traverse has been stayed pending Respondent’s production of

discovery requested by Petitioner. See, e.g., Minute Order (July

12, 2022). The Court notes, however, that the D.C. Circuit

recently ruled that the application of the preponderance of the

evidence standard in a Guantanamo habeas proceeding did not

violate due process. See Al-Hela, 66 F.4th 217. The Court also

need not address the argument regarding the two petitioners

approved for transfer. Id. at 26-30.

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The D.C. Circuit rejected both arguments in Ali. “Among

other things, the substantive component of the Due Process

Clause ‘bars certain arbitrary, wrongful government actions

regardless of the fairness of the procedures used to implement

them.’” Ali, 959 F.3d at 369 (quoting Foucha v. Louisiana, 504

U.S. 71, 80, 112 S.Ct. 1780, 118 L. Ed. 2d 437 (1992) (quoting

Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L. Ed.

2d 100 (1990)). “But only government action that is ‘so

egregious, so outrageous, that it may fairly be said to shock

the contemporary conscience’ qualifies as arbitrary for the

purposes of substantive due process.” Id. at 369-370 (quoting

Estate of Phillips v. District of Columbia, 455 F.3d 397, 403

(D.C. Cir. 2006) (quoting County of Sacramento v. Lewis, 523

U.S. 833, 848 n.8, 118 S.Ct. 1708, 140 L. Ed. 2d 1043 (1998))).

As in Ali, here, Petitioner’s “detention is long because

the armed conflict out of which it arises has been long,

continuing to the present day.” Id. at 370; see also Husayn,

2022 WL 2093067 at *4-*6 (explaining that hostilities against al

Qaeda, and associated forces remain ongoing in Afghanistan and

elsewhere). Furthermore, the hostilities authorized by the AUMF

are ongoing. As indicated supra, this Court recently denied

another of Petitioner’s motions—Petitioner’s Motion for an Order

Requiring His Immediate Release and Repatriation—concluding that

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Petitioner’s continued detention is authorized by the AUMF. See

id. at *2-*4.

Petitioner’s claim that his detention is untethered to his

individual circumstances or a bona fide security assessment is

without merit. The information in the record indicates that the

PRB has specifically reviewed Petitioner’s detention “to

determine whether his continued detention remains necessary to

protect against a significant threat to the United States” four

times and that another Subsequent Full Review is in process at

this time. With regard to the most recently completed review,

the PRB determined that continued detention “remains necessary

to protect against a continuing significant threat to the United

States.” Periodic Review Board, Unclassified Summary of Final

Determination for ISN 10016 (Mar. 5, 2020),

https://www.prs.mil/Portals/60/Documents/ISN10016/SubsequentHear

ing1/200305_UPR_ISN10016_SH1_FINAL_DETERMINATION_PRB.pdf. In

reaching this conclusion, the PRB acknowledged Petitioner’s

claim that he was not a formal member of al Qaida, but

nonetheless concluded his continued detention necessary based on

“his past involvement in jihadist activity to include probably

serving as one of Usama bin Ladin’s most trusted facilitators

and his admitted abilities as a long-term facilitator and

fundraiser for extremist causes.” Id. The PRB also took into

consideration Petitioner’s “lack of remorse for his extensive

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role in training and facilitating large numbers of extremists,

continued habit of viewing certain persons and countries as his

enemies, and personal attributes and beliefs that make him

susceptible to reengagement.” Id.

B. The Court Rejects Petitioner’s Remaining Arguments

Petitioner argues that “the Court should construe the AUMF

narrowly to limit the duration of Petitioners’ detention in

order to avoid the serious constitutional concerns that would be

raised by a statute that authorizes such non-criminal detention

potentially for the remainder of their lives.” Habeas Mot., ECF

No. 488 at 31. In Ali, the D.C. Circuit observed that “because

the specific constitutional claims that Ali presses have already

been considered and rejected by circuit precedent, there are no

constitutional rulings to be avoided.” Ali, 959 F.3d at 373.

Accordingly, this Court need not address whether the AUMF should

be construed to limit the duration of detentions.

Petitioner also argues that “the Court should grant relief

because whatever traditional law-of-war detention authority may

have existed at the time of Petitioner’s capture and initial

detention has by now unraveled, 15 years after the fact.” Habeas

Mot., ECF No. 488 at 35. However, the Court rejected the

arguments Petitioner makes here in its decision on the motion

for immediate release. See generally Husayn, 2022 WL 2093067.

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Petitioner’s final argument—that the Court should exercise

its broad, common law habeas authority to grant relief—ignores

the complex body of law that has developed to ensure that non-

citizens detained at Guantanamo have a “meaningful opportunity”

to contest their detention. Boumediene, 553 U.S. at 779. Such

law includes binding circuit precedent, which of course, this

Court cannot disregard.

III. Conclusion and Order

For the reasons stated above, it is hereby

ORDERED that Petitioner’s Motion for Order Granting Writ of

Habeas Corpus, ECF No. 488, is DENIED.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

May 26, 2023

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