Al-Alwi v. Trump: Appeal to D.C. Circuit to Determine End of Hostilities in Afghanistan

On October 2, counsel for Guantánamo detainee Moath Hamza Ahmed al-Alwi filed their opening brief in an appeal to the U.S. Court of Appeals for the D.C. Circuit. In the February 2017 ruling by Judge Richard Leon of the District Court for the District of Columbia, the court denied al-Alwi’s petition for a writ of habeas corpus and granted the government’s motion to dismiss al-Alwi’s challenge to his continued detention at Guantánamo Bay.

Background

Al-Alwi is a Yemeni citizen who was captured in Pakistan in late 2001 and delivered into U.S. military custody. He has been detained without charge at Guantánamo Bay since January 16, 2002, classified as an enemy combatant pursuant to the 2001 Authorization for the Use of Military Force (AUMF). Al-Alwi previously filed a habeas petition in 2005, which Judge Leon took up following the 2008 Supreme Court decision in Boumediene v. Bush, allowing Guantánamo detainees to challenge the legality of their detention. After an evidentiary hearing, Judge Leon denied the petition, finding that the government had established by a preponderance of the evidence that al-Alwi was properly classified as an enemy combatant because he was “part of or supporting Taliban or al Qaeda forces both prior to and after the initiation of U.S. hostilities” in Afghanistan. The D.C. Circuit affirmed in 2011, and the Supreme Court denied cert. (See previous Lawfare coverage here, here, and here.)

Al-Alwi filed a second habeas petition, the one currently at issue, in May 2015, challenging his continuing detention on the grounds that the original conflict in Afghanistan covered by the AUMF has ceased, and along with it the authority of the United States to detain him. He also argues, in the alternative, that the length of his detention cannot be reconciled with traditional law of war principles, as read into the AUMF by the Supreme Court in Hamdi v. Rumsfeld and reinforced by Congress in the National Defense Authorization Act of 2012. The government filed a motion to dismiss in October 2015, and then the case stalled for a year. Mr. al-Alwi filed a petition for mandamus with the D.C. Circuit in late 2016 to compel action on his habeas petition, prompting the District Court to schedule and hold a hearing on December 20, 2016.

District Court Ruling

On February 21, 2017, Judge Leon issued a memorandum opinion reaffirming the legality of al-Alwi’s detention and denying his habeas petition.

Judge Leon first considered, and then rejected, al-Alwi’s contention that the relevant conflict, for purposes of his detention, in fact ended when the U.S. transitioned from active combat operations in Afghanistan to support and counterterrorism operations, and that the court had the authority to declare that as a matter of law. Quoting the D.C. Circuit’s 2010 opinion in Al-Bihani v. Obama, Judge Leon wrote that “determination of when hostilities have ceased is a political decision” and that the judiciary should “defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” Conducting such a circumscribed inquiry, Judge Leon found both that “the record establishes that the President and his national security officials believe and have clearly stated that active hostilities remain ongoing in Afghanistan,” and that “the government has provided overwhelming evidence that active hostilities are in fact ongoing” (emphasis in original).

Statements by President Obama declaring an end to combat operations and a change in operational focus—and the formal shift from Operation Enduring Freedom to Operation Freedom Sentinel—notwithstanding, active hostilities as authorized by the 2001 AUMF persist in Afghanistan. Al-Alwi’s detention therefore remains lawful.

Judge Leon then turned to al-Alwi’s alternative argument that his fifteen-year detention at Guantánamo is unlawful because it can no longer be reconciled with traditional law of war principles governing combatant detention. To support his position, al-Alwi pointed to Justice O’Connor’s plurality opinion in Hamdi, which grounded the government’s detention authority under the AUMF in the idea of “necessary and appropriate force”: “[Our] understanding is based on longstanding law of war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” But Judge Leon was not persuaded that the protracted nature of the conflict in Afghanistan is legally significant. As long as hostilities that are determined by the political branches continue, al-Alwi’s detention as an enemy combatant is legitimate. Moreover, as Judge Leon noted in a footnote, even if the character of the conflict deviates from what the drafters of the Geneva Conventions envisioned, “a detainee may not invoke the Geneva Conventions in a habeas proceeding.”

Consequently, the government’s motion to dismiss was granted.

Appeal to the Court of Appeals for the D.C. Circuit

Al-Alwi’s appellant brief presents three issues for the D.C. Circuit’s consideration:

1. Whether the statutory authority of the United States to detain Mr. al-Alwi has unraveled because the practical circumstance of the conflict in Afghanistan are too unlike those that informed the development of the law of war and, if not, whether continued and potentially lifelong detention violated the Constitution.
2. Alternatively, whether the authority of the United States to detain Mr. al-Alwi has expired because the conflict in which he was captured more than fifteen years ago has ended.
3. Whether the Constitution requires heightened procedural protections to ensure the continued legality of indefinite detention that has exceeded fifteen years and has no end in sight.

The brief recounts the circumstances of al-Alwi’s capture and detention since 2002 and reminds the court that in ruling on his prior habeas petition, neither the district court nor the D.C. Circuit “found any evidence that Mr. al-Alwi ever used arms against the United States or its coalition partners, much less that he had anything to do with the September 11, 2001 attacks or any other plots.” It then traces the political and legal evolution of the conflict in Afghanistan in order to establish why the 2001 AUMF should no longer be deemed applicable. First, the brief highlights the 2013 Memorandum of Understanding between the United States and Afghanistan “under which the United States transferred all Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government.” Next, it cites President Obama’s 2014 declarations about ending “combat operations” and bringing the war “to a responsible conclusion.” Finally, it points to the Bilateral Security Agreement signed in September 2014 that governs “the terms of the United States’ military presence in Afghanistan beyond 2014” and specifies that the United States will no longer conduct combat operations or unilateral military counterterrorism operations in Afghanistan. History suggests that “armed conflict of some kind may never end” in Afghanistan, but the United States now “serves in a supportive and subordinate role—in a fight that looks nothing like the combat operations in 2001.” The illegitimacy of his continued detention is made even more apparent, al-Alwi contends, by the fact that the U.S. no longer has detention authority in Afghanistan and the fact that “scores of other Guantánamo detainees facing far more troubling allegations have been released.”

The district court erred in deferring so thoroughly to executive opinion and treating hostilities in Afghanistan as a monolith, no matter how the conflict and the United States’ role in it has changed over the years. The conflict’s “identifying feature,” according to al-Alwi, “is that it doesn’t end,” and the result is that al-Alwi faces a realistic prospect of lifetime detention without charge, “a situation so repellant to basic principles of justice that the Court should now wield its constitutional authority” to grant his habeas petition and impose limits on the government’s military detention authority. The D.C. Circuit, al-Alwi asserts, reviewing the district court’s decision de novo, is empowered to command the government to charge or release him; it can do so without reaching the constitutional question of whether his indefinite imprisonment violates due process guarantees (though it does also do that, he argues) by finding that the government’s statutory authority to continue detaining him has unraveled. Alternatively, it could find that heightened procedural safeguards are warranted when a detainee faces indefinite detention, including the application of greater scrutiny to hearsay evidence and a requirement that the government meet a “clear and convincing evidence” standard. In this case, the court should remand the habeas petition to the district court for a more rigorous review. Both courses are proper if the court agrees with al-Alwi that Judge Leon dismissed his petition as a matter of law.

If, on the other hand, the court concludes that Judge Leon made findings of fact, it could vacate the judgment and remand to the district court for further proceedings on the grounds that the government’s response was treated as a motion for summary judgment and al-Alwi was not permitted the opportunity to take discovery or rebut the government’s facts. Hamdi and Boumediene, the brief states, require courts in Guantánamo cases to fully review “the record,” and the dismissal of al-Alwi’s petition without adversarial presentation of facts was an abuse of the district court’s discretion.

Next Steps

The government’s response brief is due November 3. Al-Alwi’s reply brief will follow, due by November 20.