Another Bad Day for Another Guantanamo Detainee in the Courts

Petitioner remains conditionally cleared for release since the action of the [Guantanamo] Task Force. Petitioner alleges that his health has declined so substantially that the possibility of "any significant physical activity---much less any involvement in the hostilities---is virtually impossible ....[T]herefore, no legitimate basis for Petitioner's continued detention [exists] and he should be released and repatriated to Yemen." Pet.'s Mem. at 1. Despite having been cleared for release approximately four and one-half years ago, Petitioner remains at Guantanamo Bay and the Government has refused to provide his counsel any timeline for when he will be allowed to return to his wife and two children in Yemen. The ruling of our Court of Appeals in Ali A wad v. Obama, 608 F.3d 1 (D.C. Cir. 2010), provides the answer to Petitioner's claim and governs this case. In Awad, whose leg had been amputated, Petitioner argued that "the District Court erred in denying his petition [for release] without a specific factual finding that [he] would be a threat to the United States and its allies if he were released." Id. at 4, 11. The Court of Appeals rejected this argument, and relying upon its earlier decision in Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010), which examined the scope of the Executive Branch's detention authority under the Authorization for the Use ofMilitary Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001), held that the "United State's authority to detain an enemy combatant is not dependent on whether an individual would be a threat to the United States or its allies if released but rather upon the continuation of hostilities." Id. The Court of Appeals went on to make it clear that "[w]hether a detainee would pose a threat to U.S. interests if released is not the issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF." Id. (emphasis added). Petitioner relies heavily on Basardh v. Obama, 612 F. Supp. 2d 30 (D.D.C. 2009), where the District Court ordered the release of Basardh, a Yemeni national, when the prospects that he would take up arms "[was], at best, a remote possibility." Id. at 35. First, Basardh was decided over a year before Awad. Second, and more significantly, with all due respect to the fine District Court Judge who wrote that Opinion, our controlling authority is the Court of Appeals decision in Awad, rather than a District Court decision. As the Government summarized "[t]he Basardh decision ... predates and is fundamentally inconsistent with the decision of the Court of Appeals in Awad." Govt. Opp'n at 11. The Court agrees.