Mohammed Abdullah Taha Mattan v. Barack H. Obama , 37 F. Supp. 3d 273 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AHMED ADNAN AHJAM, )
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Petitioner, )
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v. ) Civil No. 09-745 SRCL)
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BARACK OBAMA, et al., ) t _
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MEMORANDUM OPINION
Petitioner Ahmed Adnan Ahjam,' a Syrian national, has been detained as an enemy
belligerent at the detention facility at Guantanamo Bay, Cuba since 2002. In 2009, pursuant to
an Executive Order, a federal task force identified Mr. Ahj am as a candidate for transfer from the
detention facility and resettlement in a new country. Mr. Ahjam filed the present motion to
challenge the 2013 and 2014 National Defense Authorization Acts, which impose prerequisites
for transfers of Guantanamo detainees, as unconstitutional interferences by Congress into the
President’s control of`` foreign affairs. Upon consideration of the petitioner’s Motion for Partial
Summary Judgment [1748], the govemment’s Opposition thereto [l788], and the petitioner’s
Reply [1794], the Court DENIES the petitioner’s motion.
I. BACKGROUND
Two days after taking office, on January 22, 2009, President Barack Obama issued
Executive Order 13492 establishing the Guantanamo Review Task Force. Exec. Order No.
13492, 74 Fed. Reg. 4897 (Jan. 22, 2009). The Task Force_headed by the Attorney General
' The spelling of the petitioner’s name varies throughout the pleadings For purposes of this opinion, the Court will
use the spelling reflected on the Court’s docket.
and including the Secretaries of Defense, State, and Homeland Security, as well as the Director
of National intelligence and the Chairrnan of the Joint Chiefs of Staff-was charged with
undertaking "a prompt and thorough review of the factual and legal bases for the continued
detention of all individuals currently held at Guantanamo, and of whether their continued
detention is in the national security and foreign policy interests of the United States and in the
interests of justice." Id. at 4898. For each detainee, the Task Force was to determine the
propriety of transfer, release, prosecution, or some other disposition consistent with the laws and
foreign policy interests of the United States. Id. at 4899. To facilitate transfers, the Order
directed the Secretary of State to "expeditiously pursue and direct such negotiations and
diplomatic efforts with foreign governments as are necessary and appropriate." Id. The Order’s
directives were "subject to the availability of appropriations" and explicitly did not "create any
right or benefit, substantive or procedural." la'. at 4899-900.
On January 22, 2010, the Task Force published its final report identifying 126 detainees
as candidates for transfer to receiving countries. Guantanamo Review Task Force, Final Report,
at ii (20l0), available at http://www.justice.gov/ag/guantanamo-review-final-report.pdf (last
visited March l9, 2014). Petitioner Ahjam was one of the transfer candidates. The effort to
effect these transfers has involved "the highest levels in the administration." Ia'. at 26. The
President, Vice President, Secretary of State, Attorney General, and Secretary for Homeland
Security have worked to negotiate transfers through discussions with their foreign govemment
counterparts. Id. The Secretary of State appointed an experienced career diplomat as the Special
Envoy for Closure of the Guantanamo Bay Detention Facilities. ld. Despite_or perhaps
because of_these intense efforts, the Task Force warned that the transfer process can be
"lengthy and complicated" and "often has been influenced by political and other issues in
potential resettlement countries (e.g., public perceptions of current and past U.S. detention
policies), third-country views (and sometimes pressure) with respect to detainee resettlement,
and public views of the Guantanamo detention facility generally." Ia'. at 27.
For each fiscal year from 2011 through 20l3, the National Defense Authorization Acts
("NDAA") suspended funding for transfers of Guantanamo detainees unless the Secretary of
Defense, with the concurrence of the Secretary of State, made extensive certifications to
Congress regarding the risk posed by the detainee and the security measures taken by receiving
countries. Each year, the President issued signing statements noting that the provisions
"interfere[d] with the authority of the executive branch to make important and consequential
foreign policy and national security determinations regarding whether and under what
circumstances such transfers should occur in the context of an ongoing armed conflict."
Statement by the President on H.R. 6523, available at http://www.whitehouse.gov/the-press-
office/201 1/01/07/statement-president-hr-6523 (last visited Mar. l9, 2014).
The petitioner’s initial motion challenged the certification provisions of the FY20l3
NDAA. While that motion was pending, on December 26, 201 3, the President signed the NDAA
for Fiscal Year 2014 into law. The 2014 Act, which became effective on January 15, 2014,
expressly repealed the certification provisions of prior NDAA and instead requires a
"determination" by the Secretary of Defense that (l) "the individual is no longer a threat to the
national security of the United States," (2) "actions that have been or are planned to be taken will
substantially mitigate the risk of such individual engaging or reengaging in any terrorist or other
hostile activity," and (3) "the transfer is in the national security interest of the United States."
National Defense Authorization Act for Fiscal Year 20l4, Pub. L. No. 113-66, § 1035, 127 Stat
672 (2013). In making the determination, the statute prescribes eight factors to guide the
Secretary’s decision. Ial. § l035(c). The Secretary of Defense is also required to notify
"Congress of a [transfer] determination . . . not later than 30 days before the transfer or release
of the individual." Id. § l035(d).
In signing the Act, the President acknowledged that the FY20l4 NDAA allowed
"additional flexibility to transfer detainees abroad by casing rigid restrictions that have hindered
negotiations with foreign countries and interfered with executive branch deterrninations" but
noted that the Act "did not eliminate all of the unwarranted limitations on foreign transfers."
Statement by the President on H.R. 3304, available at http://www.whitehouse.gov/the-press-
office/2013/12/26/statement-president-hr-3304 (last visited Mar. l9, 2014) (hereinafter 2014
Signing Statement). The President also emphasized that the new provisions were coextensive
with his own standards for detainee transfers, remarking that "even in the absence of any
statutory restrictions, my Administration would transfer a detainee only if the threat the detainee
may pose can be sufficiently mitigated and only when consistent with our humane treatment
policy." 1d. Finally, the President stated that where "the restrictions on the transfer of
Guantanamo detainees . . . operate in a manner that violates constitutional separation of powers
principles, my Administration will implement them in a manner that avoids the constitutional
conflict.” Ia'.
A. Petitioner’s Transfer Negotiations
As forecast in the Task Force Report, the negotiations to transfer Mr. Ahjam have been
lengthy and complicated. Mr. Ahjam petitioned this Court for a writ of habeas corpus in 2005.
After Mr. Ahjam was approved as a transfer candidate in 2009, the Court stayed the habeas
proceedings pending the outcome of the transfer negotiations. Memorandum & Order, ECF No.
1398
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expect the FY20l4 NDAA "to be an independent barrier to Mr. Ahjam’s transfer." Resp’t Opp.,
Ex. 2 (Decl. of Paul M. Lewis, Jan. 9, 2014), at 11 7 [hereinafter Lewis Decl.].
II. ANALYSIS
Petitioner Ahjam seeks declarations that (l) the certification and determination
requirements unconstitutionally intrude upon the President’s control of foreign affairs, and (2)
the NDAA is an unconstitutional bill of attainder. For the reasons outlined below, the Court
holds that Mr. Ahjam lacks standing to assert the former argument and finds the latter without
merit.
A. Mr. Ahjam Lacks Standing to Challenge the Certification Provisions of the
NDAA
"No principle is more fundamental to the judiciary’s proper role in our system of
govemment than the constitutional limitation of federal-court jurisdiction to actual cases or
controversies." Raines v. Byrd, 521 U.S. 81 l, 818 (l997). The standing doctrine enforces this
limitation by "identify[ing] those disputes which are appropriately resolved through the judicial
process." Whitmore v. Arkansas, 495 U.S. l49, 155 (1990). Demonstrating standing, or the
existence of a case or controversy, requires (l) an "injury in fact" that is (2) "fairly traceable to
the challenged action of the defendant" and is (3) likely to be "redressed by a favorable
decision." Lujan v. Defenders of I/Vz``ldlz``fe, 504 U.S. 555, 560-61 (1992) (intemal quotations and
citations omitted).
Proof of these elements is "indispensable" to every case, id., and federal courts must
always demand "strict compliance with this jurisdictional standing requirement," Raines, 521
U.S. at 819. Where, however, a plaintiff seeks a decision as to the constitutionality of an action
taken by a co-equal branch of govemment, judicial scrutiny of standing is "especially rigorous."
Raines, 521 U.S. at 819-20. This is so because, consistent with the bedrock principle of
separation of powers, judging the constitutionality of executive or congressional action is "the
gravest and most delicate duty that [courts are] called upon to perform." Rostker v. Goldberg,
453 U.S. 57, 64 (1981). Because he has no legally protected interest in the relief he seeks, Mr.
Ahjam’s motion cannot survive this "especially rigorous" scrutiny.
i. Injury-In-Fact
The first prong of the standing inquiry, "injury in fact," requires (l) an “invasion of a
legally protected interest" that is (2) "concrete and particularized" and (3) "actual or imminent."
Lujan, 504 U.S. at 560. Estab1ishment of an injury in fact "is a hard floor of Article III
jurisdiction." Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). Mr. Ahjam’s challenge
fails to make it off the ground because he cannot show the barest minimum required for an injury
in fact-a "judicially cognizable interest," Bennett v. Spear, 520 U.S. 154, 167 (l997).
The Authorization for Use of Military Force grants the President authority "to use all
necessary and appropriate force against those . . . persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001 . . . in order to
prevent any future acts of intemational terrorism against the United States by such . . . persons."
Pub. L. 107-40, § 2(a), 115 Stat 224 (2001). 'I``he Executive’s authority is not unrestricted,
however. The "privilege of habeas corpus entitles the prisoner to a meaningful opportunity to
demonstrate that he is being held pursuant to the erroneous application or interpretation of
relevant law." Boumediene v. Bush, 553 U.S. 723, 779 (2008) (intemal citations and quotations
omitted). The writ of habeas corpus remains the sole means by which Guantanamo detainees
may challenge the legality of their detention. Against this background, Mr. Ahjam asserts that
his "constitutional right to be free," Pet.’s Mot. Summ. J. 24, is a legally protected interest
sufficient to support his standing to challenge the NDAA certification provisions. The Court
disagrees.
As a threshold matter, barring a successldl habeas petition, the Constitution confers no
"right to be free," id. at 24, upon enemy belligerents detained at Guantanamo. Mr. Ahjam’s
reasoning to the contrary is based in his fundamental misunderstanding of Executive Order
13492 and the subsequent Task Force Report. Though Mr. Ahjam fashions the Order and the
Report as an Executive decision to "cease targeting [Mr. Ahjam] with military force," id. at l,
neither document evidences any such decision. The Executive Order communicates the
President’s command that the Executive Branch review whether "the continued detention of all
individuals currently held at Guantanamo . . . is in the national security and foreign policy
interests of the United States," 74 Fed. Reg. at 4898, and accordingly, the Task Force Report
identifies certain detainees as candidates for transfer, The transfer designation is key, especially
in light of Mr. Ahjam’s claim that he is a "man the govemment itself has cleared for release."
Pet.’s Mot. Summ. J. 31 (emphasis added). Both the Order and the Report distinguish between
transfer and release. See 74 Fed. Reg. at 4899 (ordering review of detainees for transfer or
release) (emphasis added); Task Force Rep. at 7 (repeating same). Not a single detainee was
cleared for release, which requires a unanimous finding that a detainee "does not pose an
identifiable threat to the national security of the United States." Task Force Rep. at 7 n.5. Far
from the release determination claimed by Mr. Ahjam, clearance for transfer merely signals the
commencement of a process that "takes time and requires extensive diplomatic efforts." Task
Force Rep. at 15; see also id. at 27 (describing the transfer process as "lengthy and complicated"
and noting that the outcome "often has been influenced by political and other issues in potential
resettlement countries.").
Diplomacy and foreign relations fall within the "plenary and exclusive power of the
President as the sole organ of the federal govemment in the field of intemational relations."
United States v. Curtz``ss-Wright Exp. Corp., 299 U.S. 304, 319-20 (1936). Indeed, courts have
"long recognized the President's presumptive dominance in matters abroad.” Zz'votofsky ex rel.
Zz``votofsky v. Sec’y ofState, 725 F.3d 197, 211 (D.C. Cir. 2013); see also, e.g., Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring) (President bears
the "vast share of responsibility for the conduct of our foreign relations."); Johnson v.
Eisentrager, 339 U.S. 763, 789 (1950) (noting that the President is "exclusively responsible" for
"conduct of diplomatic and foreign affairs"); Legal Assistance for Vietnamese Asylum Seekers v.
Dep’t of State, 104 F.3d 1349, 1353 (D.C. Cir. 1997) ("By long-standing tradition, courts have
been wary of second-guessing executive branch decision involving complicated foreign policy
matters."). The law does not recognize any interest of Mr. Ahjam in the Executive’s diplomacy
with foreign nations.
Moreover, the Task Force Report emphasizes that "a decision to approve a detainee for
transfer does not equate to a judgment that the govemment lacked legal authority to hold the
detainee." Task Force Rep. at 15. Despite having reliable evidence that many detainees
"engaged in conduct providing a lawful basis for . . . detention," the Task Force "nonetheless
considered these detainees for transfer from a threat perspective, in light of their limited skills,
minor organizational roles, or other factors." Id. The Report, therefore, does nothing to defeat
the fact that absent a contrary judicial or Executive determination, Mr. Ahjam remains a
lawfully-detained enemy belligerent. Given that fact, the transfer decision is akin to a decision
on whether to commute a long-tenn sentence of a validly-convicted inmate, which "generally
depends not simply on objective factfinding, but also on purely subjective evaluations and on
predictions of future behavior by those entrusted with the decision." Connectz``cut Bd. of Pardons
v. Dumschat, 452 U.S. 458, 464 (1981); see also Task Force Rep. at 17 ("The [transfer] decision
reflects the best predictive judgment of senior government officials, based on the available
information, that any threat posed by the detainee can be sufficiently mitigated through feasible
and appropriate security measures in the receiving country."). As in a commutation decision, the
President "can deny the requested relief for any constitutionally permissible reason or for no
reason at all." Dumschat, 452 U.S. at 466 (Brennan, J., concurring). Such unfettered discretion
does not lend itself to judicial review, and thus, does not create a protectable liberty interest.
Finally, Mr. Ahjam’s "right to be free" cannot be grounded in the Executive Order, which
by its terrns, "does not, create any right or benefit, substantive or procedural," 74 Fed. Reg. at
4900; see also Meyer v. Bush, 981 F.2d 1288, 1297 n.7 (D.C. Cir. 1993) ("An Executive Order
devoted solely to the intemal management of the executive branch-and one which does not create
any private rights-is not, for instance, subject to judicial review.").
The failure to establish a legally protected interest forecloses each of Mr. Ahj am’s injury-
in-fact arguments. First, citing a number of cases examining violations of the Equal Protection
Clause, Mr. Ahjam argues that "when a person sustains a diminished opportunity to enjoy a
constitutional right, he has sustained personal injury sufficient to establish standing." Even
assuming the truth of that statement, the distinguishing factor between equal protection cases and
Mr. Ahjam’s case is the existence of a constitutional right. The plaintiffs in each of the cases
cited by Mr. Ahjam alleged an invasion of their right to compete on an equal footing with
others-a right conferred by the Fourteenth Amendment to the Constitution. Aa'arand
Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995). ln contrast, Mr. Ahjam has no
constitutional or statutory right to a transfer,
Second, the lack of a legally protected interest bars Mr. Ahjam’s argument that the
"imposition of procedural risks [is] a concrete injury," Pet.’s Mot. Summ. J. 25. See Summers v.
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Earth Island Inst., 555 U.S. 488, 496 (2009) ("[D]eprivation of a procedural right without some
concrete interest that is affected by the deprivation-a procedural right in vacuo_is insufficient
to create Article 111 standing.").
Finally, Mr. Ahjam seeks to establish injury by pointing to the 30-day notice requirement,
which he argues could require him to remain detained for up to 30 days after the President gives
final approval for his transfer. But this reasoning fails because he has no right to a transfer in the
first instance-it is entirely within the discretion of the Executive. The President could, for
example, reverse the transfer immediately if he determined that the transfer no longer served the
interests of the United States. Absent a constitutional or statutory basis to do so, it is not the
place of the judiciary to police the discretion of the President, Additionally, on the current facts,
this argument is too speculative to establish a concrete injury. Petitioner has not received a final
decision on his transfer, and the President could, consistent with his signing statement,
"implement [the NDAA] in a manner that avoids . . . constitutional conflict," 2014 Signing
Statement, perhaps by making Mr. Ahjam’s transfer effective thirty days after the decision is
reached. And, given the extensive logistics involved in resettling Guantanamo detainees, this 30-
day period would likely be concurrent with the planning for Mr. Ahjam’s final transfer.
In sum, Mr. Ahjam has failed to demonstrate a judicially cognizable interest sufficient to
establish standing.
B. The 2014 NDAA ls Not An Unconstitutional Bill of Attainder
"[L]egislative acts, no matter what their forrn, that apply either to named individuals or to
easily ascertainable members of a group in such a way as to inflict punishment on them without a
judicial trial are bills of attainder prohibited by the Constitution." United States v. Lovett, 328
U.S. 303, 315 (1946); see also U.S. Const. art. I, § 9, cl. 3. This prohibition serves "as an
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implementation of the separation of powers, a general safeguard against legislative exercise of
the judicial function[.]" United States v. Brown, 381 U.S. 437, 442 (1965).
Because the Bill of Attainder Clause "reaches only statutes that inflict punishment,"
Selective Serv. Sys. v. Mz``nnesota Pub. Interest Research Grp., 468 U.S. 841, 851 (1984), it is
unnecessary to delve into the intricacies of Mr. Ahjam’s argument on this issue. The precedent
in this Circuit is clear: military detention is not punishment. As the Circuit stated in Ali v.
Obama
The purpose of military detention is to detain enemy combatants
for the duration of hostilities so as to keep them off the battlefield
and help win the war. Military detention of enemy combatants is a
traditional, lawful, and essential aspect of successfully waging war.
. . . [M]ilitary detention during wartime is neither a punishment nor
an act of vengeance, but merely a temporary detention which is
devoid of all penal character.
736 F.3d 542, 545 (D.C. Cir. 2013) (intemal quotations and citations omitted). And, in a case
examining a statute forbidding any funds for transfers of Guantanamo detainees to the United
States, the Circuit held
The statutory restrictions, which apply to all Guantanamo
detainees, are not legislative punishments; they deprive petitioners
of no right they already possessed.
Kiyemba v. Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010). As such, the provisions of the
NDAA do not fall within the purview of the Constitution’s prohibition on bills of attainder.
CONCLUSION
For the foregoing reasons, the Court DENIES the petitioner’s motion for summary
judgment.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, United States District Judge, on March 21, 2014.
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