Abdal Razak Ali v. Trump

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Abdul Razak Ali, )
)
Petitioner, )
)
v. ) Civil Case No. 10-cv-1020 (RJL)
) .
Donald J. Trump, et 2[., )
)
Respondents. ) F I L E D
§ Aus_ 1 0 2018
Clerk. U.S. Dlstrict & Bankruptcy
MEMORANDUM OPINION COU|’lS lof the DlStflCt Of COlUmbla
August 18 , 2018 [Dl741 F. Supp. 2dl 19 (D.D.C.
2011), and our Court oprpeals, Alz`` v. Obama, 736 F.3d 542 (D.C. Cir. 2013), previously
determined that Ali could lawfully be detained as an enemy combatant under the
Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107-40 § 2(a), 115 Stat.
224 (2002), Ali now argues that the amount oftime that has passed since his apprehension
renders his continued detention unlawful under the AUl\/IF and the due process clause of
the Fifth Amendment to the U.S. Constitution, U.S. Const. amend. V.
Currently before the Court is Ali’s Corrected Motion for Order Granting Writ of
Habeas Corpus [Dkt. # 1529] (“Corrected l\/Iot.”). Upon consideration of the pleadings,
the law, the record, and for the reasons stated below, 1 find that Ali’s detention remains
lawful, and DENY his Corrected l\/lotion for Order Granting Writ of Habeas Corpus [l_)kt.
# 1529]. l
BACKGROUND
Petitioner Abdul Razak Ali is an Algerian national. See Ali, 741 l»". Supp. 2d at 21.
ln l\/larch 2002, he was captured by Palid. Since June 2002, he has
been held at the U.S. Naval Base at Guantanamo Bay. n
Ali filed his first petition for writ of habeas corpus in this Court on December 21,
20'()5. See Pet. for a Writ ol``l~labeas Corpus, All`` v. Bus/z, Civ. No. 5-2386(1).1).€. Dec. 21,
2005) [Dkt. # 1]. The case was initially assigned to Judge Walton. As with the hundreds
of other habeas petitions filed around the same time, Ali’s case was stayed pending the
U.S. Supreme Court decision in Boumedie)ae v. Bush, 553 U.S. 723, 771 (ZOf)S) (holding
that Guantanamo detainees are “entitled to the privilege ofhabeas corpus to challenge the
legality oftheir detention”).
l``<``ollowing the Boumea’iene decision, l``or reasons ol``judicial economy, .ludge Walton
transferred this case to then-Chief.ludge Royce Lamberth. Order, All' v. Obama, Civ. No.
5-2386 (D.D.C. Apr. 21, 2009) [DlAl[, 741 F. Supp. 2d at 22. The Cl\/lO placed
the burden of proof on the Government, set the standard of proof as preponderance ofthe
evidence, provided discovery rights for detainees (including a right to “exculpatory”
materials), formulated the procedural processes that would guide the hearings in Court, and
set forth the definition ol"“enemy eombatant.” [cz’. at 24 n.2.' 'l"hese procedures had already
' The definition of enemy combatant is as follows:
[/\]n individual who was part of or supporting Taliban or al Qaeda forces, or associated
forces that are engaged in hostilities against the United States or its coalition partners 'l``his
includes any person who has committed a belligerent act or has directly supported
hostilities in aid ofenemy armed forces '
A/l`` v. ()/)ama, 74l F. Supp. 2d 19, 24 (D.D.C. 201 l) (quoting B()umediene v. Bush, 583 F. Supp. 2d 133,
135 (D.D.C. 2008)).
been blessed by our Court of Appeals See A[-B[/zani v. Obczma, 590 l".3d 866, 869¢70,
875~881 (D.C. Cir. 2010).
ln December 2010, I conducted three days ofhearings on the merits ofAli’s petition.
Unl"ortunately for l\/lr. /-\li, following those hearings l concluded that he was being lawfully
detained as an “enemy combatant.” A!l``, 74l l". Supp. 2d at 27. 1 based this determination
on (i) the undisputed fact that /-\li was captured at a guesthouse in Faisalabad, Pakistan,
with a well-known al Qaeda facilitator, Abu Zubaydah;2 (ii) credible testimony from other
individuals at the guesthouse that Ali participated in Abu Zubaydah’s “training programs”
while in their company at the guesthouse; and (iii) credible evidence placing /\li in various
locations in A'fghanistan with Abu Zubaydah and his band of followers See id at 2'5¢27.
Our Circuit affirmed my decision on December 3, 2013. See Alz``, 736 F.3d at 543, /\nd at
oral argument in this case, Ali’s counsel confirmed that the present habeas petition does
riot challenge my earlier ruling as to the legality ofAli’s apprehension and detention See
3/23/1811r’g Tr. 4:25-5:5 |:Dkt. # 1535].
PETITIONER’S CURRENT STATUS
ln January 2009, President Obama established the Guantanamo Bay Review 'l``ask
Force. See Exec. Order l\lo. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009). 'l``he 'l``ask Force
was charged with evaluating whether each detainee’s “continued detention is in the
national security and foreign policy interests ofthe United States.” ]a’. § 2(d), 74 Fed. Reg.
2 Other courts in this district have concluded that Abu Zubaydah and his band of followers had well
established ties to al Qaeda and the Taliban, and were thus an “associated force” under the 2001
Authorization for the Use of l\/lilitary l"``orce. See BcJ/”/zoz//m`` v, ()[m/ml, 609 l"``.3d 416, 420, 432 (D.C. Cir.
2010);/4/}[¢11”/)/'1). ()/)cmm, No. 05-02479, 2010 WL 23‘)8883,at*l4(1).1).C. i\/lay |3, 20l0).
4897#99. 'l``he Task Force reviewed the status of each Guantanamo detainee, and made a
recommendation whether to (i) transfer the detainee, (ii) continue his dctention, our (iii)
prosecute him. Final Report: Guantanamo Rev. 'l``ask l"``orce at l (.lan. 22, 2010) (“(i'l``l\/l()
Task Force Report”), https://www.justice.gov/sites/default/liles/ag/legacy/20l0/
06/02/guantanamo-review-final-report.pdf. b
A separate Executive Order requires periodic status reviews of detainees like Ali,
whom the Task Force decided to continue to detain. See Exec. Order 13,567, 76 l-``*``ed. Reg.
l3,277(l\/1ar. 7,2011);see also Exec. Order 13,823, 83 Fed. Reg. 4831, 4831¢32 (.lan. 30,
2018) (continuing these procedures for periodic reviews). The Periodic Review Board
(“PRB” or “Board”) conducts these reviews This process assesses whether continued
custody of``a detainee is necessary to protect against a significant threat to the security of
the United States. Exec. Order 13,567, § 2. lt is not intended as an assessment of the
legality of continued detention. [d. § 8.
After the initial PRB review, each detainee is eligible for a “full” review every. three
years [d. § 3(b). ln addition, each detainee is eligible for a “file review" every six months
]c)’. § 3(c). If the file review reveals that a “significant question” has arisen concerning the
detainee’s continued detention, then a full PRB review is promptly convened.. [c{.
In its February 16, 2018 submission, the Government represented that Ali had his
initial Periodic Review Board hearing on July 6, 2016. See Respondents’ Opposition to
Petitioners’ l\/lot. for Order Granting Writ of l-labeas Corpus, All`` v. Trt¢/)t/), Civ. No. 10-
1020, at 7 (Feb. 16, 2018) |:Dkt. # 1525] (_“Op})’ri"'). "l``he l-"RB designated /\li for continued
detention [d. Ali’s PRB file was reviewed on february 3, 2017 and again on Septelnber
1, 2017. [d. As of February 14, 2()18, Ali has a third PRB file review ongoing ]cl.
Notwithstanding his pending PRB review, Ali and ten other detainees jointly filed
a l\/lotion for Petition for Habeas Corpus on rlanuary 11, 2018. l\/lot. for Order Granting
Writ ofHabeas Corpus, Civ. No. 10-1020 [Dkt, # 1512:]. An identical motion was filed in
all nine separate cases3 On January 22, 2018, 1 set a briefing schedule, ordering that the
Government file its Opposition by Friday, February 16, 2018, and that Petitioner file his
\Reply by Friday, l\/larch 9, 2018.4 Following the l\/larch 5, 2018 status conference, Ali filed
a Corrected l\/lotion for Order Granting Writ ofl'»labeas Corpus in the case atlbar in order
to address a clerical error in the case caption. [:Dkt. # 1529|. "l``he briefing is complete and
the motion is ripe for review.
LEGAL STANDARD
The Government bears the burden of proving by a preponderance of the evidence
that Ali is lawfully detained lf the Government fails to meet that burden, the Court must
grant the petition and order Ali’s release. 'l"his is the standard that governed the Court"s
review of/-\li’s original habeas petition. See Case l\/lanagement Order, A[i`` v. Obama, Civ.
No. 10-1020, at 3 (D.D.C. Aug, 25, 2010) [Dkt. # 1423] (“'l``he Government must establish,
by a preponderance of the evidence, the lawfulness of the petitioner’s detention.. 'l"he
3 This Court retained Civ. No. 10-1020. Judge Sullivan similarly retained jurisdiction over Civ.
Nos 8-1360 and 5-23. Judge l(ollar-Kotelly, Judge Lamberth, and .ludge Walton agreed to transfer the
cases assigned to them to Judge Hogan. These transfers were made on January 18, 2018.
4 Judges Hogan and Sullivan ordered the same briefing schedule in their cases Petitioners and
Government have filed identical pleadings in all cases
Government bears the ultimate burden of persuasion that the petitioner’s detention is
lawful.”). Our Circuit has repeatedly affirmed that a preponderance standard is
constitutionally appropriate when reviewing Guantanamo detainee habeas petitions See
Al Ocz’ah v. Um'tec/ States, 611 F.3d 8, 13-14 (D.C. Cir. 2010) (“lt is now well-settled law
that a preponderance of the evidence standard is constitutional in considering a habeas
petition from an individual detained pursuant to authority granted by the AUMF.”); Awacz’
v. ()bama, 608 F.3d l, 10 (D.C. Cir. 2010) (“[A] preponderance ofthe evidence standard
is constitutional in evaluating a habeas petition from a detainee held at Guant»anamo Bay,
Cuba.”).
DISCUSSION
Ali advances two arguments: that (i) the Government lacks the authority under the
Authorization for the Use ofl\/lilitary Force (“AUl\/ll~'"”), Pub. L. 107-40, § 2(a), 115 Stat.
224 (Sept. 18, 2001), to continue to detain him, see Corrected l\/lot. at 29-37;‘Petitioners’
Reply in Support of l\/Iot. for Order Granting Writ ofl*labeas Corpus 15-25 let. # 1528:|
(“Reply”); and (ii) Ali’s continuing detention deprives him of both substantive and
procedural due process, see Corrected l\/lot. at 15-29; Reply at 7-15.5' Although
repackaged under different authority, these arguments flow from the same premise: that
5 Ali’s brief contains a third line of argument_that “the continuing detention of petitioners
approved for transfer from Guantanamo violates substantive due process because their detention no longer
serves its ostensible purpose.” Corrected l\/lot. at 26 (alteration in original). This line of argument does not
apply to Ali, who has not been deemed eligible for transfer. Opp’n at 7. instead, this argument applies
only to il``ofiq Nasser Awad Al-Bihani and Abdul LatifNassar, two petitioners who have been cleared for
transfer and whose habeas motions are pending before Judge l-logan. See Corrected l\/lot. at 26. /\li, /-\l-
13ihani, and Nassar, along with eight other detainees, all filed identical briefs, despite the different factual
circumstances surrounding their detention
the duration ofAli’s detention erodes the legal basis for his continued detention Ali, in
effect, asks this Court to use its “broad, equitable common law habeas authority" to order
the issuance ofa writ of habeas corpus Id. at 37. 1"or the following reasons, 1 cannot do
so !
l. The Government’s Detention Authority Pursuant to the AUMF
Ali first argues that the Executive Braneh lacks the authority to continue to detain
him. 1~»1e contends that he is effectively subject to “indelinite” detention since the
campaign against al Qaeda, 'faliban, and associated forces continues to persist. Corrected
l\/lot. at l. Such “indefinite” detention, the argument goes, exceeds the scope of the
Government’s detention authority under the /-\Ul\/IF. Id. Second, Ali contends that the
sheer length of the conflict has “unraveled” the Government’s authority pursuant to the
AUl\/IF, since “the practical circumstances of the conflict with al Qaeda have,long ceased
to resemble any ofthe conflicts that informed the development of the law ofwar.” [d. at 3
(alteration in original). Unfortunately for the petitioner, both arguments are without merit.
Shortly after the September 1 1, 2001 terrorist attacks Congress1 passed the
Authorization for Use ofl\/lilitary Foree (“AUl\/ll*``”), which provides:
That the Prcsident is authorized 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 1 1, 2001, or harbored such organizations or persons, in order to
prevent any future acts of international terrorism against the United States by
such nations organizations or persons
Pub. L. 107-40, § 2(a), 115 Stat. 224 (Sept. 18, 2001). 'l``he AUl\/l_f`` gives the l’resident
authority to detain enemy combatants_i.e., individuals who were “part ot"' or provided
support to al Qaeda and v``1"aliban forces in /\fghanistan Al-Bl/zom``, 590 13``.3d at 872 ("``[/\n
individual] is lawfully detained lunder the AUl\/lF if he] is . . . an individual who was part
of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in
hostilities against the United States or its coalition partners" (quotations omitt'ed)).6
fn 2004, a plurality ofthe Supreme Court observed in Hamcll v. Rzzms/``elcl that it was
a “clearly established principle of the law of war that detention may last noq longer than
active hostilities.” 542 U.S. 507, 520-21 (2004) (plurality opinion) (citing Geneva
Convention (111) Relative to the rfreatment of Prisoners art. 118, Aug. 12, 1949, |:1955:| 6
U.S.'l``.3316,3406,1``.1./-\.8.1\10. 3364); See also Al-Alwl`` v. Trump, l\lo. 17-5067, slip op. at
8 (D.C. Cir. Aug. 7, 2018) (observing that “the laws of war are open-ended and
unqualified” in permitting detention of enemy combatants for the duration of active
hostilities). lnformed by the principles of the law of war, the Court held that the AUl\/[F’s
grant of authority to use “necessary and appropriate forcc” included within it “the authority
to detain [enemy combatants:| for the duration ofthe relevant conflict." ]cl. at 521; see also
Aomer v. ()bama, 742 F.3d 1023, 1041 (D.C. Cir. 2014) (same). Because Ali does not
challenge this Court’s initial determination that he was “part ofAl Qaeda, the Taliban, or
associated f``orces,” and because “hostilities are ongoing,” thc Government may continue to
detain him. Aomer, 74217.3d at 1041; see also Al-Alwl v. Trump, l\lo. 17-5067, slip op. at
8 (D.C. Cir. Aug. 7, 2018) (“Although hostilities have been ongoing for a considerable
° This Court has already determined that Ali is an enemy combatant who can be lawfully detained
under the AUl\/lF. See A/i, 741 F. Supp. 2d at 27, qj/"a’, /1/1', 736 F.3d at 550. Ali does not challenge this
initial determination See 3/23/18 Hr’g '1``1'.4:25-5:5 kat. # 1535``]; cf Corrected l\/lot. at 23.' lnstead, Ali’s
motion presents the question whether the Government’s detention authority has lapsed in the sixteen years
since his capture.
9
amount of time, they have not ended."’). Ali’s detention, far from open-ended and
“indefinite,” is tied to this ongoing conflict against al Qaeda, the ifaliban, and associated
forces As such, Ali’s first argument, that he is subject to “indefinite” detention that
exceeds the Government’s authority under the AUMP``, is wholly without merit.
As for Ali’s second argument, that the war against al Qaeda and the '1``aliban has
ended, our Circuit Court has already made short shrift of this argument ln essence, Ali
invites this Court to undertake a wide ranging factual inquiry into whether active hostilities
persist. To say the least, it would not be proper for this Court to do so. ln Al-B/'/mni v.
Obamo, our Circuit Court rejected a Guantanamo detainee’s argument that the United
States’ war against the Taliban had ended and that he must therefore be released 590 F.3d
at 874. The Circuit Court noted that release was required after the cessation of active
hostilities, but held that the “determination of when hostilities have ceased is a political
decision and we defer to the lixecutive’s opinion on the matter, at least in the absence of
an authoritative congressional declaration purporting to terminate the war.” Ic.l.
.lust days ago, our Circuit Court reaffirmed Al-Bz``/tam"s holding. See Al-Alwl, slip
op. at 8. ln Al-Alwz``, the panel held that the AUl\/lF continues to supply authority to detain
an enemy combatant captured in 2001 after having “stayed in 'faliban guesthouses, traveled
to a Taliban-linked training camp to learn how to fire rifles and grenade launchers and
joined a combat unit led by an al Qaeda official that fought alongside the "1``aliban.” ]cl. at
3. lnstead, our Circuit Court specifically rejected the notion that “the nature of hostilities
has changed such that the particular conflict in which [the detainee was] captured is not the
same conflict that remains ongoing today.” [d. at 10. 'l``o the contrary, the Court explaincd,
10
“tlie Executivc 13ranch represents with ample support from record cvidcnce, that the
hostilities described in the /\Ul\/lF continue."`` [al. 'l``hat Executive Braneh judgment and
representation in the absence of a “contrary Congressional command,” ends the judicial
inquiry. lal.; see also Ltldec/ce v. Walkl``)/zs, 335 U.S. 160, 168-70 (1948) (deferring to
l§xecutive Branch determination that “war with Germany"' persisted despite the fact that
Germany had “surrender[ed:|" and “Nazi Reich” had “disintegrate|:ed:].”). Simply put, the
AUl\/IF continues to supply the Government with the authority to detain Ali.7 .
Not surprisingly, this is not the first time that Ali has challenged the Executive’s
authority to detain him based on the passage of time. ln 2013, our Circuit Court rejected
this very argument, observing that the war against al Qaeda, the Taliban, and associated
forces “obviously continues” and that the AUl\/llj “does not have a time limit, and the
Constitution allows detention of enemy combatants for the duration of hostilities.’i Alz``,
736 F.3d at 552. lndeed it emphasized that, absent a differently-drawn statute, “it is not
the Judiciary’s proper role to devise a novel detention standard that varies with the length
ofdetention.” ld.; see also Al-Alwi, slip op. at 5 (noting that the A'Ul\/ll*`` does-not “place[:'|
limits on the length of detention in an ongoing conflict”); cf El-Slzlfa Pharm. lmlus. Co. v.
Um``lea’ States 607 F.3d 836, 843 (D.C. Cir. 2010) (“[W]hether the terrorist activities of
7 Ali argues that, in order to avoid a “serious constitutional problem” - namely, the denial of due
process rights - l must apply the canon of constitutional avoidance in order to construe the /~\Ul\/ll?`` not to
authorize his continued detention Corrected l\/lot. at 33-34. 'l``hat canon is inapplicable for two reasons
First, the AUl\/lF is not “stisceptible of two constructions,” such that the canon would assist the Court in
choosing one interpretation over another. See ./o/ve.s' v. Un/'teo’ Sla/es, 529 U.S. 848, 857 (2000). /\s
described above at length, the AUl\/lF plainly and unmistakably applies here, and authorizes Ali’s continued
detention Second, and as discussed below, the protections of the due process clause do not extend to
Guantanamo Bay. See infra pp. 13-14. Thus, Ali cannot point to a “grave and doubtful constitutional
question[:|” ofthe kind required to trigger the avoidance canon ./one.s', 529 U.S. at 857.
11
foreign organizations constitute threats to the United States ‘are politicaljudgments
decisions of a kind for which the Judiciary has neither aptitude, facilitics[,] nor
responsibility, and have long been held to belong in the domain of political power not
subject to judicial intrusion or inquiry.”’ (quoting People ’s Moja/zea'ln Org. off/ran v. U.S.
Dep’t ofState, 182 F.3d 17, 23 (D.C. Cir. 1999))).
Presidents Trump and Obama have reported on a regular basis including most
recently in June 2018, that “[t:|he United States remains in an armed conflict, including in
Afghanistan and against the 'faliban, and active hostilities remain ongoing.” Notice of
Supp. Auth. Ex., Text of a loetter from the President to the Speaker of the l'louse of
Representatives and the President Pro 'fempore of the Senate (.lune 8, 2018) l'_Dkt. # 1537-
1]. And Congress has not only refrained from repealing or amending the _AUl\/lF, but
explicitly clarified in the National Defense Authorization Act of 2012 (_“NDAA”) that the
AUl\/fF gives the Presidcnt authority to detain combatants “under the law ofwar without
trial until the end ofhostilities.” NDAA, Pub. L. No. 112-81, §§ 1021(c),(b)(2), 125 Stat.
1298, 1562 (2011).8 As such, the record amply demonstrates here that it is the political
judgment of both branches that active hostilities indeed persist pursuant to thelAUl\/lF. As
such, Ali’s time-based arguments are wholly without merit. See Al[, 736 F.3d at 552.
3 The conclusions ofthe political branches are consistent with the facts on the ground '1``he United
States maintains a substantial military presence in Afghanistan, and U.S. troops continue to engage in a
counterterrorism mission against al Qaeda, the Taliban, and associated forces in that region See Dep’t of
Defense Report on Enhancing Security and Stability in Afghanistan at 3, 5-6 (Dec. 2017) [Dkt. # 1525-91l
rfhis campaign involves traditional uses of military force, such as air strikes ground operations and combat
enabler support. See ia’. at 3-7, 22-29.
II. Ali’s Due Process Arguments
Undaunted, Ali makes two additional due process arguments one sounding in
“substantive” and the other in “procedural” due process ln order to prevail under either
theory, however, Ali must first establish that the protections of the due process clause
extend to Guantanamo Bay detainees Unfortunately for Ali, our Circuit Court has already
held that the due process clause does not apply in Guantanamo See Kl``yemba v. Ol)ama,
555 F.3d 1022, 1026#27 (D.C. Cir. 2009)(“](1})€/11[)¢1]”), vacafeclana'remandea,’, 559 U.S.
131. reinstated lrz relevampart, 605 F.3d 1046, 1047#48 (D.C. Cir. 2010) (“sze/Ml)a [1"'),
cert. denl'ed, 563 U.S. 954 (2011).
ln Kl``yemba l, our Circuit Court recited a string of Supreme Court cases for the
proposition that “the due process clause does not apply to aliens without'property or
presence in the sovereign territory of the United States.” Kz'yemba l, 555 13``.3d at 1026
(collecting cases). Although the Supreme Court vacated Klyem/)a l in order t~o afford our
Circuit the opportunity to pass on factual circumstances that had changed while the petition
for certiorari was pending, see 559 U.S. at 131, our Circuit promptly reinstated Kiyemba
]’sjudgment and opinion in pertinent part in Klyeml)a H, 605 13.3d at 1048. fn subsequent
cases our Circuit has confirmed that Kiyemba ll reinstated Kiye/rzl)a [’s holding on the
extension of the due process clause to Guantanamo. See Al Macllzwarzz`` v. Obama, 642 1*``.3d
1071, 1077 (D.C. Cir. 2011);see also Bahlul v. Urzltea’States, 84017.3d 757, 796 (D.C. Cir.
2016)(1\/1i11et,l., concurring); Al Balzlul v. Urzz``ted States 767 F.3d 1, 33 (D.C. Cir. 2014)
(Henderson, .l., concurring). Applying Klyeml)a 11, district courts in this Circuit have
uniformly refused to recognize due process claims by Guantanamo Bay detainees See
13
Salahiv. Obama, Civ. No. 05-0569 (RCL) 2015 WL 9216557, *5 (D.D.C. Dec. 17, 2015)
(“[T]he Due Process Clause of the Fifth Amendment, does not apply to Guantanamo
detainees.”); Rabbam`` v. Obama, 76 F. Supp. 3d 21, 25 (D.D.C. 2014) (same); Amezz``ane v.
Obama, 58 F. Supp. 3d 99, 103 n.2 (D.D.C. 2014) (same); Bostan v. Obarna, 674 F. Supp.
2d 9, 29 (D.D.C. 2009) (same). As such, Ali’s due process arguments are unavailing and
must be summarily dismissed9
CONCLUSION
For all ofthe foregoing reasons the Court DENIES Ali’s Corrected Motion for
Order Granting Writ of Habeas Corpus [Dkt. # 1529]. A separate order consistent with
this opinion will be issued this day.
RlCHARD J. N _
United States Dts lrict Judge
9 Petitioners contend that procedural due process mandates that they cannot continue to be detained
(i) under a preponderance ofthe evidence standard or (ii) based on factual determinations made some time
ago. Corrected l\/lot. at 3, 22-29. Once again, Ali supports this theory with various cases from outside the
national security context. See id. at 23. Even assuming the due process clause extends to Guantanamo Bay
- which, under the law of our Circuit, it does not - these cases are inapposite because our Circuit Court
previously endorsed the very procedures Ali now challenges See Al-Bl``hani, 590 F.3d at -878 (rejecting
argument that “the prospect of indefinite detention” requires a reasonable doubt or clear-and-convincing
standard, and instead endorsing a preponderance-of-the-evidence standard in determining whether detainee
was part of or substantially supported Al Qaeda, the Taliban, or associated forces); see also id. at 879
(permitting use of hearsay evidence); Al Oa’ah v. United States, 611 F.3d 8, 13 (D.C. Cir. 2010) (“1t is now
well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas
petition from an individual detained pursuant to authority granted by the AUl\/IF.”); Awad v. Obama, 608
F.3d l, 10 (D.C. Cir. 2010) (“[A] preponderance of the evidence standard is constitutional in evaluating a
habeas petition from a detainee held at Guantanamo Bay, Cuba.”); Lall``fv. Obama, 666 F.3d 746, 755 (D.C.
Cir. 201 1) (affording presumption of regularity to government intelligence reports); Ali, 736 F.3d at 546
(affirming district court’s inference that detainee captured at al Qaeda guesthouse was a member of al
Qaeda). Thus even were Ali eligible for the protections of the due process clause, these cases``would
foreclose his procedural arguments '
14