Basardh v. Bush

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UNITED STATES DISTRIC'I`` COURT \
FOR THE DISTRICT OF COLUMBIA
YASIN MUHAMMED BASARDH
Petitioner,
v. Civil Case No. 05-889 (ESH)
BARACK H. OBAMA et al., ~
Respondents.
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MEMOBANDUM OPIN]ON»
i-"etitioner Yasin Muhamxned Basardh ("petitioner" or "Basardh") is a detainee
who has been held at the U.S. Naval Base at Guantanamo Bay, Cuba for the past seven
years. He alleges that he is being unlawfully detained by respondents President Barack
H. Obama, Secretary of Defense Robert M. Gates, Army Brigade General jay Hood, and
Al_’my Colonel Brice Gyurisko.]
Before the Court is petitioner’s motion for judgment and respondents’ opposition
thereto. In reaching its decision, the Couit has relied upon classified interviews of
petitioner and others conducted by law enforcement and intelligence personnel, as well as
upon classified information derived from other intelligence sources and methods 'I``he
Court also reviewed ex parte and in camera a top secret-SCI document.z
’ ?ursuant to Federai Ruie ofCivil Procedure 25(d), if a public officer named as a party to an
action in his official capacity ceases to hold oft'tce, the Court will automatically substitute that
ot’frcer’s suecessor. Accordingly, the Court substitutes Barack H. Obama for George W. Bush
and Robert M. Gates for Donald H. Rumsfeld.
1 “['I``]he court has inherent authority to review classified material ex parte, in camera as part of its
judicial review function." Jz_``fiy v. Fed. Avian'on Admin., 370 F.?»d 1174, 1182 (D.C. Cir. 2004);
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On March 31 , 2009, the Court held a hearing on petitioner’s habeas petition.
During the classified portion of this proceeding, counsel for both parties presented
evidence and arguments regarding petitioner’s motion, and immediately thereatter, the
Court held unclassified hearing, which was under seal at petitioner counsel’s request,
during which counsel for both parties presented legal arguments Petitioner Basa.'rdh
listened to the unclassified portion via a live telephone transmission to Guantanarno Bay,
Cuba.
At the end of this proceeding, the Court granted the petition for habeas and now
issues this Memorandum Opinion to explain the reasons for its decision.
BACKGROUND
The Court is unable to publicly document all material facts in this case because
much of the information has been deemed classified or protected.s As a result, the
following factual summary is somewhat abbreviated, but it is nonetheless sufficient to
explain the Court’s decision, since, for purposes of this motion, petitioner’s activities
prior to his detention at Guantanamo (which are contested by the parties) are not at issue
here. Rather the only issue before the Court is a narrow one - what, if any, relevance
see also Bismullah v. Gates, 514 F.3d 1291, 1292-93 (D.C. Cir. 2008) (en banc) (per curiam)
(granting motion for leave~to file top secret-SCI declarations solely forjudges’ ex parte and in
camera review)', Tabbaa v. Cherto_;f 509 F.3d 89, 93 n.l (Zd Cir. 2007) (reviewing classified
intelligence ex parte and in camera "to ensure independently that there was a sufficient basis” for
govemment witness’s unclassified statements and finding that "[t]hese materials confirmed what
the record available to both parties already made plain").
3 The Executive has “authority to classify and control access to information bearing on national
security," and the Supreme Court has stated that "the protection of classified information must be
committed to the broad discretion of the agency responsible, and this must include broad
discretion t_o determine who may have access to it." Dep ’r of the Navy v. Egan, 484 U.S. 518,
527 (1988); see also Fitzgibbon v. Cent. intelligence Agency, 911 F.2d 755, 762 (D.C. Cir. 1990).
does Basardh’s_have to a determination of the lawfulness of
his continued detention? _
Petitioner Basardh, a Yemeni national, was arrested _in early 2002-
_ was transferred to United States custody, and has been detained in
Guantanamo Bay, Cuba since 2002.
pr==»d within Gwia»m@» md
thereafter, he was subjected to physical attacks by other detainees. See Unclassif``ied
Summary of Evidence for Cornbata.nt Status Review Tribunal, 3, 8 (Oct. 21, 2004)
(repoxting Basardh "was beaten by other Detajnees who believe he is a spy" and ‘Wvas
threatened many times to be killed by other Detainees"); Unclassified 'I``ranslation of
Detainee’s Written Statement, 2 (Nov. 8, 2005) ("[M]y family and l are threatened to be
l killed . . . and this threat happened here in prison for many times."). On March 3, 2006,
the Department of Defense, over Basardh’s 0bjection, responded to a Freedom of
‘ Due to the``e of the evidence, the Court cannot be more specific regarding the
s.
Information Act request by releasing to the public transcripts of Basardh’s Combatant
Status Review' Tribunal ("CRST") and Adrninistrative Review Board ("ARB")
proceedings 'I'hose transcripts reveal, in unredacted fonn, that Basardh "eooperated his
entire stay while [at Guantanatno]." Unclassified Surnmary of Evidcnce for CSRT, 3
(Oct. 21, 2004); see also Unclassified Surnmary of ARB Proceedings for lSN 252, at 5
("I am cooperative to the point where my cooperation with everyone has led to many
people threatening my life."). On February 3, 2009, the Washington Posl published a
front-page article regarding Basardh’s cooperation, specifically citing him by name. See
Del Quentin Wilber, Detainee-Informer Presents Quandary for Government,
WASH!NGTON PGST, Feb. 3, 2009, at Al. 'I'his article was translated and published in
-Yemerx where Basardh’s family lives. ln addition, the-government has acknowledged
that Basardh has suffered physical attacks and has received credible death threats as a
result o
ln additi'on, throughout this period-the govemment has encouraged
Bawdh ° l_
.7 Thcse encouragements were reinforced by the
‘ Th_e~Post article reported that Barsardh received privileges not generally available to other
detainees, including chewing tobacco, apple pics, magazines, and "other comfort items." Del
. Quentin Wilber, Detainee-Informer Presenrs Quandar_y for Government, WASHYNGTON POST,
Feb.3 2009 atAl.
written notice provided to each detainee prior to his ARB proceeding. This notice
advised the detainee that in making its determination whether a detainee could be
released or transferred from Guantanamo, the ARB “will consider . . . if you are working
with the United States government trying to help." See, e.g. , Notification of the Decision
of an ARB lCO ISN 252 to Continue Detention (Jan. 31,2006). According to the
gcvernment, this notice was given to petitioner prior to each of his ARB hearings in
2005, 2006, and 2007, pursuant to the Departtnent of Defense procedures governing the
administrative review process that "permit[ted] each enemy combatant . . . to explain why
he is no longer a threat to the United States and its allies . . . ." Order, Administrative
Review Procedures for Enemy Combatants in the Control of the Department ofDefense
at Guantanarno Bay Naval Base, Cuba, 1 (May ll, 2004). As recognized by these
procedures, the law of war permits "detention for the practical purpose of preventing the
enemy from rejoining the conflict," id., and therefore, a detainee’s need for continued
detention (or a “_threat assessment") was to be conducted annually "‘to detennine if the
enemy combatant remains a threat to the United States . . ." Id. at 3.
Despite the ARB’s recognition that whether a detainee presented a current threat,
including whether he is_is relevant to a determination as to whether he
should be "release[d], transfer[red], or continue[d] to [be] detain[ed] . . .," id. at 5,
Basardh has not been cleared for release or transfer but continues to be held as an enemy
combatant.‘
LEGAL ANALYSIS
Petitioner raises a myriad of novel legal arguments as to why his petition should
be granted based on his post-detention conduct and his alienation from enemy forces as a
result of his - The issue, however, can be decided without resort to the
principles enunciated by the Supretne Court in Saniobello v. New York, 404 U.S. 257 ,
262 (1971) ("When the plea rests in any significant degree on a promise or agreement of
the [govemment], so that it can be said to be part of the inducement or considcration,
such promise must be iiilfrlled."), or in DeShaney v. Dep 't of Soc. Servs., 489 U.S. l89,
l99-200 (l989) (recognizing the state-created danger doctrine), or by application of the
"arbitrary and capricious" standard of the Adrninistrative Procedures Act, 5 U.S.C. §
706(2)(».).°
' The govemment has recently abandoned its use of the term “enemy combatant" and no longer
asserts that the President possesses inherent detention authority based on his constitutional role as
Commander-in-Chief of the armed forces. See Respts’ Mem. Regarding the Govemment’s
Detention Authority Re|ative to Detainees Held at Guantanamo Bay, Dkt. No. 126 (Mar. 13,
2009). In addition, ARB proceedings are no longer being conducted. Instead, ongoing reviews
are being conducted pursuant to Review and Disposition of individuals Detained at the
Guantanamo Bay Naval Base and Closure ofDetention Facilities, Exec. Order !3,492, 74 Fed.
Reg. 4897 (Jan. 22, 2009).
9 Given the ARB’s failure to ex lain why petitioner’s post-detention conduct, including his
extensive d not merit release or transfer, it could certainly be argued that
the ARB had violated the principles of the APA. This argument, however, would be met with the
claim that the APA is inapplicable due to the exemption in Section 701(\'))( l)(G) for "military
authority exercised in the field in the time ofwar, or in occupied territory." While this issue has
yet to be decided by the D.C. Circuit, judge Randolph in his concurrence in AI Odah v. United
States, 321 F.3d 1 134, 1149 (D.C. Cir. 2003), and _Judges Green and Kollar-Kotelly have held
that the exemption in Section 70l(b)(l)(G) does apply. In re Guantanamo Bay Detainees C'ases,
355 I". Supp.Zd 443, 480~81 (D.D.C. 2005), vac., Bou}nediene v. Bush, 476 F.3d 981 (D.C. Cir.
6
Siinilarly, the Court is spared from having to wade into the debate over whether
the due process principles recognized by the Supreme Court in Hamdi v. Rumsj?zlii also
apply to a non-U.S. citizen held at Guantanamo 542 U.S. 507, 525~35 (2004) (pluralit'y
opinion) (applying Matthews v. Eldridge, 424 U.S. 319 (1976) to a citizen who is held as
an enemy combatant); see also Boumediene v. Bush, 128 S, Ct. 2229, 2262 (2008);
Kiyemba v_ Obama, Nos. 05-5487, 05-5489, 2009 WL 91 O997, at *6 n.4 (D.C. Cir. Apr.
7, 2009) (Kavanaugh, J., concun'ing) (asstuning without deciding that Guantanamo
detainees "possess constitutionally based due process rights with respect to transfers");
Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009) (stating in dicta that "the due
process clause does not apply to aliens without property or presence in the sovereign
territory of the United States"). Rather, the Court can lixnit itself to addressing
respondents’ contention that the Authorization for the Use ofMilitary Force ("AUNIF’),
Pub. L. 107-40, 115 Stat. 224 (2001), as interpreted by Hamdi, authorizes the government
to imprison petitioner regardless of whether he continues to pose any threat of returning
to the battlet``ield so long as the United States is still engaged in hostilities with al-Qaeda
or too 'rotiboo, soo siooo ¢oooo hostilities oro san oogomg, Basardh’s_
irrelevant to the determination of whether he is lawfully detained Respondents’ position
is contrary to both the AUMF and Hamdi.
As conceded by the govemment, its authority to imprison individuals at
Guantanamo Bay is derived from the AUMF, which the gov_emment contends is
"inforined by the principles of the laws of war.” See Respts’ Mem. Rega.rding the
Govemment’s Detention Authority Relative to Detainees Held at Guantanamo Bay, Dkt.
2007), rev 'd, Baumedz'ene v. Bush, l28 S. Ct. 2229 (2008); Rasul v. Bu.rh, 215 F. Supp. 2d 55, 64
n.ll (D.D.C. 2002), rev 'd,AI Odah v. Uni!ed States, 103 Fed. App’x 676 (D.C. Cir. 2004).
No. 126, Civ. No. 05-889, at 1, 3-8 (March 13, 2009) (ESH); see also supra note 8. 'l``he
AUMF was passed by Congress in response to the terrorist attacks of September l l,
200l. The AUMF authorizes the President
to use all necessary and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided the terron``st
attacks that have occurred on September l l, 2001, or harbored such organizations
or persons, in order to prevent any fixture acts of international terrorism against
the Um``ted States by such nations, organizations orpersons.
AUMF § 2(a) (emphasis added).
This statutory language of the AUMF, which defines the Executive's detention
authority in plain and unambiguous terms, speaks only to the prevention of "j"uture acts of
international terrorism against the United States." Id. (ernphasis aclded). lt does not
authorize unlimited, unreviewable detention. Instead, the AUMF requires some nexus
between the force (i.e., detention) and its purpose (t``.e., preventing individuals from
rejoining the enemy to commit future hostile acts). Accordingly, the>AUMF does not
authorize the detention of individuals beyond that which is necessary to prevent those
individuals from rejoining the battle, and it certainly cannot be read to authorize detention
where its purpose can no longer be attained.
C0nsistent with the AUMF, Hamdi recognized that the Executive may detain
combatants for a limited purpose only. Hama'i stated unequivocally that, under the
AUMF, "indefinite detention for the purpose of interrogation is not authorized," 542 U.S.
at 521 (plurality opinion), that detention of cornbatants must be "devoid of all penal
chamcter," id. at 518, and that such detention is "solely protective custody, the only
purpose of which is to prevent the prisoners of war }$‘om further participation in the
war." la'. (ernphasis added). Hamdi further explained, "[t]he object of capture is to
prevent the captured individual from serving the enemy,” and added that prisoners are to
be "treated humanely and in time exchanged, repatriated or otherwise released." Ia'. at
513-19 (quoiing 1a re Territo, 156 r.zd 142, 145 tom Cir. 1946)).‘° simply sioisa, who
purpose of detention is to prevent the captured individuals from returning to the field of
battle and taking up arms again." Id. at 5l8.
As previously noted, this limitation on the Executive’s detention authority is
consistent with the administrative procedurestliat the government adopted in 2004 for the
CSRT and ARB proceedings for determining whether continued detention of a detainee is
justified In both sets of rules, the government is obligated to perform ongoing threat
assessments of detainees based upon the detainee’s current status. See Order Establishing
CSRT 13(i) (July 7, 2004); Memorandum for Secretaries of the Military Departments
Chairrnan of the Joint Chiefs of Staff under Secretary of Defense for Policy, Enclosure 3
(Joiy 14, 2006).
Based on the clear language of the AUMF, as interpreted in Hamdi, this Court
must conclude that Basardh's current likelihood of rejoining the enemy is relevant to
whether his continued detention is authorized under the law. Just as the Court considers
"the most current evidence supporting a detainee’s detention," In re Guantanamo Bay
‘° The govemment has relied extensively on the Ninth Circuit’s opinion in ln re Terrz'ta to argue
that petitioner can be held until the hostilities are over. But Territa is of no help. First, Territo,
unlike petitioner, was a prisoner of war, having been captured in uniform on the battletield in k
italy during World War Il. 156 F.2d at l43. Second, Territo, while being held as a prisoner of
war at a camp in Califomia, voluntarily joined an italian Service Unit where he worked as a
laborer for eighty cents per day but
Id. Finally, and perhaps most importantly, the Hamdi Court cited
Territa’s recognition of the limited purpose for detention - "The object of capture is to prevent
the captured individual from serving the enemy. Hc is disarmed and from then on must be
removed as completely as practicable from the front, treated humanely and in time exchanged,
_ repatriated or otherwise released." Hamdi, 542 U.S. at 5 l S-l 9 (quoting In re Territo, 156 F.2d at
145).
De!.ainee Llrig., Dkt. No. 39, Misc. No. 08-442 (TFH), as was strenuously argued by the
government when it sought leave to amend its factual retums, the Court must also
consider the most current evidence relating to whether a detainee is no longer a threat
And, when this evidence is factored into the assessment of the legality of Basardh’s
detention, it inexorably follows that the requested relief is warranted, for Basardh can no
longer constitute a threat to the United States. B'asardh has '
Given the widespread public disclosure _any
prospect of his rejoining those entities defined in the AUMF is, at best, a remote
possibility. The govemment does not - and cannot - contest this.u
'l``herefore, considering the totality of the circumstances, the Court concludes that
the government has failed to meet its burden of establishing that Basardh’s continued
detention is authorized under the AUMF’s directive that such force be used "in order to
prevent future acts of intemational terrorism." The undisputed facts establish that
Basardh’s _is known to the world, and thus, any ties with the enemy have
been severed, and any realistic risk that he could rejoin the enemy has been forec1osed.
As a resul-t, the Executive’s asserted justification for his continued detention lacks a basis
in fact as well as in law.
n In fact, the govemment does not argue that Basardh is likely to rejoin those entities upon
rzelease, but rather, its counsel declined to offer an opinion on the subject.
Under habeas corpus law, the govemment bears the initial burden of establishing a sufficient
basis for the lawful detention of a person seeking a writ of habeas corpus. See Boumediene v.
Bush, 128 S. Ct. at 2270; Hamdz`` v. Rumsfeld, 542 U.S. at 533-34. The Case Management Order
issued in this case also requires the govemment to prove, "by a preponderance of the evidence,
the lawfulness of the petitioner’s detention." In re Guantanamo Bay Detainee Litig., Dkt. No.
940, Misc. No. 08-442 (November 6, 2008) ('I``FH), amended by, Dkt. No. 13 16, Misc. No. 08-
442 (Deccmbcr 16, 2008) (TFH).
10
CONCLUSION
For all the foregoing reasons, and for the reasons stated during the lieariiig held on
l\/larcli 3 l, 2009, the Court grants the petition for a writ of liabeas corpus The Court
further orders the government to tal;e.all iieeessary and apti)ropriate diplomatic steps to
facilitate petitioners release forevwith. The Court, liovve\'er. rnust deny petitioners
request that he be released into this country or be transported to a safe haven in light of
Kiyenz_/)a v. Obczma, 555 F.3d at lOZ¢l.
ELLEN SEGAL HUVELLE
United States District Judge
april 15,2009
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