Al Odah v. USA ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KHALED A.F. AL ODAH, et al.,
Petitioners,
v.
Civil Action No. 02-828 (CKK)
GEORGE W. BUSH, President of the United
States, et al.,
Respondents.
IN RE:
Misc. No. 08-442 (TFH)
GUANTANAMO BAY DETAINEE
LITIGATION
MEMORANDUM OPINION
(January 6, 2009)
Fouad Mahmoud Al Rabiah (“Al Rabiah”) and Fayiz Mohammed Ahmen Al Kandari
(“Al Kandari”) (collectively, “Petitioners”) are two of the detainees who are currently held by the
United States Government at Guantanamo Bay, Cuba, as unlawful enemy combatants.
Petitioners have filed habeas petitions which are currently pending before this Court. In October
2008, Petitioners were also charged with violations of the laws of war and now face the prospect
of trial by military commissions in accordance with the Military Commissions Act, 10 U.S.C. §
948a - 950w (the “MCA”). Currently pending before the Court is the Government’s Motion to
Dismiss or, in the alternative, to Hold in Abeyance, Petitioners’ habeas petitions pending
completion of their military commission proceedings.1
After thoroughly reviewing the Government’s Motion, Petitioner’s Opposition, and the
Government’s Reply, as well as the relevant case law and applicable statutory authority, the
Court finds that a stay of Petitioners’ habeas cases is warranted, but only to the extent that the
charges against Petitioners are ultimately referred to military commissions for further
proceedings. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART the
Government’s Motion to hold the petitions in abeyance pending completion of military
commission proceedings, with a stay to commence only if and when the charges against
Petitioners are referred to military commissions, and shall DENY WITHOUT PREJUDICE the
Government’s Motion to Dismiss, for the following reasons.
I. BACKGROUND
A. Statutory Background
In October 2006, Congress enacted the MCA to establish the procedures governing the
use of military commissions for trying alien unlawful enemy combatants engaged in hostilities
against the United States. The procedures governing these military commissions are set forth in
both the MCA and the Rules for Military Commissions. See Rules for Military Commissions
(“R.M.C.”) 101(a) (“[t]hese rules govern the procedures and punishments in all trials by military
commissions of alien unlawful enemy combatants engaged in hostilities against the United States
as defined in [the MCA]”).2
1
There are two other petitioners in the above-captioned case who have not been charged
pursuant to the MCA and who are not subject to the Government’s Motion.
2
The Rules for Military Commissions are available on a website hosted by the
Department of Defense, http://www.defenselink.mil/news/commissionsmanual.html.
2
The military commission process begins with a “swearing of charges” against a
defendant. R.M.C. 307 (“[a]ny person subject to the Code may swear charges”). The charges are
then referred to the Secretary of Defense or any officer or official of the United States designated
by the Secretary to receive such charges (the “Convening Authority”), who decides whether to
dismiss any or all of the charges or refer any or all of them to a military commission. 10 U.S.C. §
948(h); R.M.C. 401(a). The Convening Authority must make this determination “in a prompt
manner,” but no deadline for making this determination is specified. R.M.C. 401(b). Assuming
the Convening Authority refers one or more charges to a military commission, the defendant
receives certain speedy trial rights. For example, the defendant must be arraigned within 30 days
after receiving service of the charges, and a military judge must announce the assembly of a
military commission within 120 days. R.M.C. 707(a).
Military commissions under the MCA are composed of at least five military officers, 10
U.S.C. § 948m, and are presided over by a military judge, id. § 948j. In addition to hearing
evidence related to whether the defendant violated the laws of war or other offenses triable by
military commission, id. § 948(a), a military commission may also make an independent
determination as to whether the defendant is an unlawful enemy combatant, defined as “a person
who has engaged in hostilities or who has purposefully and materially supported hostilities
against the United States or its co-belligerents who is not a lawful enemy combatant (including a
person who is part of the Taliban, al Qaeda, or associated forces).” 10 U.S.C. §§ 948a(1)(A)(i);
948d(a).
The MCA affords a defendant three levels of appellate review if convicted. First, in all
instances where the defendant is found guilty by the military commission, the case is reviewed by
3
the Court of Military Commission Review (“CMCR”), comprised of at least three military judges
(or civilians with “comparable qualifications” appointed by the Secretary of Defense). Id. §§
950c(a), 950f. The CMCR may “act only with respect to matters of law.” Id. § 950f(c). A
defendant may then appeal as of right to the United States Court of Appeals for the District of
Columbia Circuit. Id. § 950g. The D.C. Circuit has jurisdiction to review “whether the final
decision [of the military commission] was consistent with the standards and procedures specified
[in the MCA]” and with “the Constitution and the laws of the United States.” Id. § 950g(c).
Finally, a defendant may seek review of the D.C. Circuit’s decision by writ of certiorari to the
United States Supreme Court. Id. § 950g(d).3
B. Factual and Procedural Background
On October 21, 2008, Petitioners were formally charged with having violated the laws of
war under the MCA. Each Petitioner was charged with two offenses: providing material support
for terrorism in violation of 10 U.S.C. § 950v(b)(25), and conspiracy in violation of 10 U.S.C. §
950v(b)(28). As reflected in their charge sheets, Al Rabiah is charged with traveling between
Kuwait and Afghanistan to meet with, and provide funds to, Usama Bin Laden,4 soliciting funds
from individuals in Kuwait for the purpose of giving money to al Qaeda, and managing and
distributing supplies from an al Qaeda supply depot at Tora Bora, Afghanistan. See Gov’t’s
Mot., Ex. A at 3-4 (10/21/08 Al Rabiah Charge Sheet). Al Kandari is charged with visiting the al
3
The Government suggests that there is a fourth level of appellate review because the
Convening Authority may review convictions and lower sentences based on his or her “sole
discretion and prerogative.” See Gov’t’s Mot. at 4 (citing 10 U.S.C. § 950b); 10 U.S.C. §
950b(c)(1).
4
Although often spelled “Osama” Bin Laden, the charge sheets use this alternative
spelling.
4
Farouq training camp in Afghanistan, providing instruction to Al Qaeda members and trainees
present at the camp, serving as an advisor to Usama Bin Laden, and producing recruitment tapes
that encouraged others to join al Qaeda and participate in jihad. Id., Ex. B at 3 (10/21/08 Al
Kandari Charge Sheet). The charges against Al Kandari were subsequently amended on
December 3, 2008, to add two additional counts of providing material support for terrorism and
conspiracy, respectively. See Gov’t’s Reply at 8 n.2 & Ex. A at 1-3 (12/3/08 Al Kandari
Amended Charge Sheet). The amended charges allege that Al Kandari traveled to Tora Bora,
Afghanistan, where he fought with Al Qaeda forces. Id. at 4.
These charge sheets (including the Al Kandari’s amended charge sheet) are currently
under consideration by the Convening Authority. See Gov’t’s Mot. at 5; Gov’t’s Reply at 8 n.2.
The Government does not indicate that the charges have been referred by the Convening
Authority to military commissions, and the Government concedes that there is no deadline by
which the Convening Authority must decide whether to dismiss or approve the charges. See
Gov’t’s Reply at 8 (referencing the “lack of a deadline for the Convening Authority to complete
its review and refer charges to a military commission”).
On November 26, 2008, the Government filed a Motion to Dismiss or, in the alternative,
Hold in Abeyance the Petitioners’ habeas petitions pending completion of the military
commission’s proceedings. Petitioners filed an Opposition to the Government’s Motion on
December 8, 2008, and the Government filed a Reply on December 18, 2008. The Government’s
Motion is thus fully briefed and ripe for decision.
5
II. LEGAL STANDARDS AND DISCUSSION
A. Abstention During Military Commission Proceedings
Courts ordinarily abstain from considering habeas petitions or requests for other equitable
relief prior to the conclusion of a defendant’s criminal proceedings. As the Government’s
motion correctly explains, the United States Supreme Court’s decision Schlesinger v.
Councilman confirmed that such abstention is appropriate even in the context of military
prisoners. 420 U.S. 738, 758 (1975). In that case, Councilman was a serviceman who brought
an action in federal district court seeking an injunction to prevent his court-martial for allegedly
selling, transferring, and possessing marihuana. Id. at 739. Councilman argued that the court-
martial lacked jurisdiction over his alleged offenses, and that he “[would] suffer great irreparable
damage in that he [might] be deprived of his liberty without due process of law” if the district
court did not enjoin his court-martial proceedings. Id. at 742 (quotation marks omitted). The
district court granted the injunction and the Tenth Circuit Court of Appeals affirmed. Id. at 739.
The Supreme Court reversed, finding “no injustice in requiring respondent to submit to a
system established by Congress and carefully designed to protect not only military interests but
his legitimate interests as well.” Id. at 759-760. The Court held that Congress impliedly
expressed its view that “the military court system generally is adequate to and responsibly will
perform its assigned task,” and that “this congressional judgment must be respected.”
Councilman at 758. The Court justified its holding based on the abstention principle that
“federal courts normally will not entertain habeas petitions by military prisoners unless all
available military remedies have been exhausted.” Id. at 758.
The present case is not the first or even the second to address so-called “Councilman
6
abstention” in the context of Guantanamo Bay detainees. On November 24, 2008, Judge John D.
Bates issued a stay of a petitioner’s habeas case during the pendency of his military commission
proceedings. See Khadr v. Bush, No. 04-1136, 2008 U.S. Dist. LEXIS 95473 at *11 - *14
(D.D.C. Nov. 24, 2008). Relying on Councilman, Judge Bates held that courts should respect the
system of military commissions established by Congress and the President of the United States.
Id. at *14 (“[a]lthough Councilman itself acknowledged this comity-based consideration in the
context of a military justice system designed by Congress to try members of the U.S. military, the
consideration is equally, if not more, relevant when Congress designs a military justice system to
try alien unlawful enemy combatants”). Judge Bates also found that the petitioner’s habeas
proceedings threatened to interfere with the military commission’s proceedings. Id. at *13 (“the
question of enemy combatancy can be raised in the military commission proceeding . . .
[c]onsequently, Councilman abstention would seem appropriate with respect to [petitioner’s
habeas petition] because any rulings by this Court . . . would necessarily affect, and possibly
interfere with, the military commission proceeding.”). Accordingly, Judge Bates held that
“abstention is appropriate [] to the extent that this Court’s consideration of petitioner’s motion
would interfere with the military commission proceeding . . . .” Id. at *12.5
On July 18, 2008, Judge James Robertson also addressed Councilman abstention in the
context of a motion for a preliminary injunction filed by a petitioner who sought to stop his
military commission proceedings. See Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008).
5
Petitioners in this case seek to distinguish Khadr on the basis that it did not involve
“habeas petitions challenging executive detention.” Pet’r’s Opp’n at 7. Petitioners are mistaken.
The petitioner’s motion in Khadr sought, inter alia, a writ of habeas corpus. See Khadr, 2008
U.S. Dist. LEXIS 95473 at * 7.
7
Denying this motion, Judge Robertson held that Councilman “requires the courts to respect the
balance that Congress has struck in creating a military justice system . . .,” id. at 136, and that the
MCA was worthy of deference because it was “designed . . . by a Congress that . . . act[ed]
according to guidelines laid down by the Supreme Court.” Id. (quoting Hamdan, 344 F. Supp. 2d
152, 157 (D.D.C. 2004)).
This Court is similarly persuaded that abstention of Petitioners’ habeas cases during the
pendency of their military commission proceedings is warranted. Abstention reflects the
appropriate level of deference for a system enacted by Congress, signed into law by the President,
and designed in accordance with the Supreme Court’s precedents. See Hamdan v. Gates, 565 F.
Supp. 2d 130, 136 (D.D.C. 2008) (quoting New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997))
(“[t]he Supreme court’s decision in Councilman requires federal courts to give ‘due respect to the
autonomous military judicial system created by Congress.’”). Abstention also eliminates the
potential for conflicting findings or rulings that would arise if the Petitioners’ habeas cases and
military commissions proceed simultaneously. Petitioners even concede that conflicting findings
may arise as to whether Petitioners are properly characterized as unlawful enemy combatants.
See Pet’r’s Opp’n at 7 (“[t]o be sure, Petitioners’ alleged status as ‘enemy combatants’ would be
a necessary predicate to any jurisdiction that a future military commission might seek to
exercise”).
The Court is also persuaded that Petitioners are not irreparably harmed by this Court’s
abstention while military commissions proceed with the charges against Petitioners. The
inconvenience of any criminal prosecution, including those associated with the military
commissions, is insufficient, standing alone, to warrant federal court intervention. Cf. Younger v.
8
Harris, 401 U.S. 37, 46 (1971) (holding that an injunction against criminal enforcement, even if
the defendant believes the statute which he is prosecuted is unconstitutional, is inappropriate
absent an unusual circumstance requiring equitable relief). The various speedy trial rights built
into the Rules of Military Commissions also ensure that Petitioners are not blocked ad infinitum
from pursuing habeas relief, see, e.g., R.M.C. 707(a), and Petitioners will have the benefit of the
various procedural safeguards built into the MCA system once the military commission
proceedings have concluded. As Judge Robertson recently explained,
[i]f the Military Commission judge gets it wrong, his error may be corrected by
the CMCR. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit.
And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of
certiorari.
Hamdan, 565 F. Supp. 2d at 137. The Court therefore finds that abstention during the pendency
of military commission proceedings is “‘[i]n the interest of judicial economy and avoid[s]
unnecessary litigation.’” Khadr, 2008 U.S. Dist. LEXIS 95473 at * 23 (quoting Al-Anazi v. Bush,
370 F. Supp. 2d 188, 199 (D.D.C. 2005)).
Although Petitioners raise numerous arguments as to why abstention is inappropriate in
this case, the Court finds none persuasive. For example, Petitioners argue that exhaustion and
comity doctrines are inapplicable in the context of the military commissions because there is no
remedy before the commissions that allow the Petitioners to challenge their detentions and, even
if acquitted, there is no guarantee that acquittal will result in their release. See Pet’r’s Opp’n at 5.
Petitioners seek to distinguish Councilman on the basis that
the plaintiff in Councilman was directly challenging the court-martial proceeding
that was the sole basis for his detention. Al Rabiah and Al Kandari, on the other
hand, are not in pretrial confinement reviewable by a military court, but instead
are held in executive detention as ‘enemy combatants.’
9
Id. at 5-6.
Petitioners are correct that military commissions under the MCA are convened to
consider whether they have violated the laws of war and not whether they should be released
from custody. Nevertheless, the commissions are still entitled to deference because the Court’s
habeas proceedings may interfere with those proceedings. For example, the essential inquiry in
Petitioners’ habeas cases – whether they are properly characterized as unlawful enemy
combatants – is the same inquiry that the commissions may independently determine as part of
their jurisdictional inquiry. See 10 U.S.C. §§ 948a(1)(A)(i); 948d(a). The Court’s proceedings
may also produce rulings on the production of discovery and/or exculpatory information that
diverge from those of the military commissions.6 The decision in Councilman sought to avoid
this type of interference by requiring defendants to exhaust their criminal (or military)
proceedings prior to seeking equitable relief, without regard to the type of equitable relief sought.
See Councilman, 420 U.S. at 756-58. The Court therefore rejects Petitioners’ argument that the
differences between the relief sought before this Court (their release) and the military
commissions (their non-conviction) distinguishes Councilman or otherwise suggests that this
Court should not defer to the system of military commissions designed by Congress and the
President. See Hamdan, 565 F. Supp. 2d at 136) (“Councilman involved court-martial
proceedings against a U.S. service member, to be sure, and not a military commission, but its
central rationale is applicable here”).
6
Petitioners argue that “the government’s motion does not address how the ongoing
habeas proceedings would interfere with any military commission proceedings . . . .” Pet’r’s
Opp’n at 6. That is not so. See Gov’t’s Mot. at 13-16; Gov’t’s Reply at 9-11.
10
Petitioners also argue that Councilman abstention “is not required in a case where a
challenge is made to the jurisdiction of the military court based on the ‘status of the persons as to
whom the military asserted its power.’” Pet’r’s Opp’n at 6 (quoting Councilman, 470 U.S. at
759). Petitioners further argue, by implication, that their cases fall within this exception because
“[a] military commission has no jurisdiction over a person who is not an unlawful enemy
combatant . . . and this Court indisputably has jurisdiction to consider Petitioners’ challenges to
their alleged status as enemy combatants.” Id. The Court is unpersuaded.
Councilman recognized an exception to the abstention doctrine when a petitioner
“raise[s] substantial arguments that a military tribunal lacks personal jurisdiction over [him].”
Hamdan v. Rumsfeld, 548 U.S. 557, 589 n.20 (2006). A “substantial” question requires “a
petitioner to present a ‘constitutional question [that] turn[s] on the status of the persons as to
whom the military asserted its power.’” Khadr, 2008 U.S. Dist. LEXIS 95473 at *15 (quoting
Councilman, 420 U.S. at 759). The Court agrees with the Government that Petitioners have not
presented a substantial constitutional question about the MCA or the military commissions that
would be convened to try Petitioners. See Gov’t’s Reply at 5 (“whether Congress ha[s] the
power to try civilians via military courts martial . . . has already been settled: the Supreme Court
held that Congress has the authority under the Constitution to authorize the trials by military
commission of enemy combatants accused of law-of-war violations”) (citing Ex parte Quirin,
317 U.S. 1, 28-31 (1942)). See also Khadr, 2008 U.S. Dist. LEXIS 95473 at *22 (rejecting the
petitioner’s argument that the exception to Councilman abstention applied and holding that
“petitioner’s challenge to the jurisdiction of the military commission does not raise a substantial
constitutional challenge based on status within this narrow exception to Councilman
11
abstention”). To the extent Petitioners are arguing that the commissions have no jurisdiction
over them because they are not properly characterized as unlawful enemy combatants, that
argument may be fully addressed by the military commissions in the first instance, and then
addressed, if necessary, by this Court following the conclusion of the military commission
proceedings.
B. Timing of Abstention in the Context of Military Commission Proceedings
Although Petitioners have failed to persuade this Court that abstention is inappropriate in
this case, the Court is persuaded by Petitioners’ arguments concerning the timing of such
abstention. In particular, Petitioners’ Opposition repeatedly emphasizes that the Convening
Authority has not yet referred any of the sworn charges against Petitioners to a military
commission, and therefore, a military commission may never be convened. Pet’r’s Opp’n at 2-3.
Petitioners argue that, “[t]o dismiss or stay their habeas petitions based on speculation about
what might happen next would be inappropriate and inconsistent with” the Supreme Court’s
ruling in Boumediene v. Bush, 128 S. Ct. 2229 (2008). Id. at 4. In response, the Government
argues that “[t]he lack of a deadline for the Convening Authority to complete its review and refer
charges to a military commission . . . does not militate against abstention. For one thing . . .
moving forward in habeas during the pendency of sworn charges represents the potential for
interference with the pending military commission proceedings.” Gov’t’s Reply at 8. The Court
agrees with Petitioners.7
As described above, a Convening Authority may dismiss charges that have been sworn
7
The Court notes that Petitioners’ Opposition casts this argument in the context of
whether or not a stay is appropriate, but the Court finds that it is more appropriately directed at
when, not if, a stay should be entered.
12
against a defendant or may refer them to a military commission for further proceedings. 10
U.S.C. § 948(h); R.M.C. 401(a). There is no deadline for the Convening Authority to make this
determination, R.M.C. 401(b), and without the Convening Authority’s referral, and military
commission is not convened. The Government’s Motion does not indicate that the Convening
Authority has referred the charges against Petitioners to a military commission in this case.
The Court finds that it cannot interfere with the findings or rulings of a military
commission that does not, and may never, exist. The Court also finds that it owes no deference
to a system that may never be implicated by the charges against Petitioners. Cf. Khadr, 2008
U.S. Dist. LEXIS 95473 at *4 (entering stay after charges had been referred to a commission);
Hamdan, 565 F. Supp. 2d at 133 (denying motion for injunction after charges had been referred
to a commission). Entry of an immediate stay under these circumstances (for reasons that may
never materialize) is inconsistent with the Supreme Court’s admonition that “[t]he detainees in
these cases are entitled to a prompt habeas corpus hearing.” Boumedine, 128 S. Ct. at 2275.
Accordingly, although the Court shall enter a stay of petitioner’s habeas cases, the stay shall not
commence unless and until the Convening Authority refers the charges sworn against Petitioners
to military commissions. Unless and until such charges are referred by the Convening Authority,
the parties must continue to proceed fully with Petitioners’ habeas cases.
III. CONCLUSION
For the reasons stated above, the Court shall GRANT-IN-PART and DENY-IN-PART
the Government’s Motion to hold the petitions in abeyance pending completion of military
commission proceedings, with a stay becoming effective only upon the referral of charges against
Petitioners to military commissions, and shall DENY WITHOUT PREJUDICE the
13
Government’s Motion to Dismiss. If and when the charges against Petitioners are referred to
military commissions, the Government shall file a notice with the Court and shall file status
reports every 60 days thereafter. Unless and until the charges against Petitioners are referred to
military commissions, the parties must proceed fully with Petitioners’ habeas cases. An
appropriate Order accompanies this Memorandum Opinion.
Date: January 6, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
14