Al-Baluchi v. Austin

691 F.Supp.3d 133

Ammar AL-BALUCHI a/k/a Ali Abdul Aziz Ali, Petitioner, v. Lloyd AUSTIN, Secretary of Defense, et al., Respondents.

Civil Action. No. 08-2083 (PLF)

United States District Court, District of Columbia

Signed September 8, 2023

Daniel L. Kaplan, Jon M. Sands, Sarah S. Gannett, Federal Public Defender Office of the Federal Public Defender, District of Arizona, Phoenix, AZ, Alka Pradhan, Military Commissions Defense Organization, Washington, DC, Clive A. Stafford Smith, United Kingdom of Great Britain and Northern Irela, Bridport, James G. Connell, III, Connell Law, Cabin John, MD, for Petitioner.

Terry Marcus Henry, Indraneel Sur, Jonathan S. Needle, Julia Alexandra Heiman, Kristina Ann Wolfe, DOJ-CIV, Civil Division, Federal Programs Branch, Washington, DC, for Respondents.

OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge

Pending before the Court are petitioner Ammar al-Baluchi's Motion to Lift Stay on Habeas Proceedings and Compel Examination by a Mixed Medical Commission [Dkt. No. 225] and related Motion for Evidentiary Hearing in Support of Motion to Lift Stay on Habeas Proceedings and Compel Examination by a Mixed Medical Commission [Dkt. No. 237].¹ Mr. al-Baluchi is a detainee at Guantanamo Bay Naval Base whom the United States is prosecuting before a military commission for his alleged role in the terrorist attacks of September 11, 2001. Upon careful consideration of the parties' written submissions, the relevant authorities, and the record in this case, the Court will deny both of Mr. al-Baluchi's motions.²

I. BACKGROUND

Ammar al-Baluchi is a Pakistani national detained at the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo"). The United States is prosecuting Mr. al-Baluchi before a military commission for his alleged role in financing the terrorist attacks of September 11, 2001.

In the late 1990s, Mr. al-Baluchi worked as a computer technician and systems manager in Dubai. The government alleges that, in January of 2000, Mr. al-Baluchi purchased flight training videos and simulation software in order to provide information about commercial airline operations to Marwan Al-Shehhi, who flew American Airlines Flight 175 into the South Tower of the World Trade Center on September 11. See Exhibit Narrative to Respondents' Public Filing of Factual Return ("Factual Return") [Dkt. No. 96-1] at 11-17. In April 2000, the government asserts, Mr. al-Baluchi began sending bank-to-bank transfers of funds from Dubai to the 9/11 hijackers in the United States. In all, the government alleges that Mr. al-Baluchi made six transfers totaling more than $100,000 to the 9/11 hijackers and pilots in the months during which they were planning the attacks. See id. at 18-24. Mr. al-Baluchi fled Dubai for Pakistan the day before the 9/11 attacks. See id. at 25. The government has alleged that he continued to manage al-Qaeda funds for investment and safekeeping, executing in-person exchanges of currency in excess of $500,000. See id. at 25-29.

The United States apprehended Mr. al-Baluchi during or after March 2003. See Factual Return at 29. In approximately September 2006, Mr. al-Baluchi was taken to the United States Naval Base in Guantanamo Bay, where he remains to this day. See Mr. al-Baluchi's December 2, 2008 Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Habeas Pet.") [Dkt. No. 1] at 4 (page number citations refer to electronic case filing numbers). Mr. al-Baluchi asserts that the United States subjected him to a pattern of torture while detaining him overseas prior to his transfer to Guantanamo Bay. See MMC Mot. at 3-7.

The government asserts that Mr. al-Baluchi is subject to detention pursuant to the 2001 Authorization for Use of Military Force ("AUMF"), which authorizes the President to use military force against those who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Pub. L. 107-40, 115 Stat. 224. The United States is prosecuting Mr. al-Baluchi as an enemy combatant before a capital military commission at Guantanamo Bay that has been empaneled pursuant to the Military Commissions Act of 2009, Pub. L. 111-84, §§ 1801-07, 123 Stat. 2190, 2574-614. A Combatant Status Review Tribunal convened by the Department of Defense has designated Mr. al-Baluchi an "enemy combatant," a determination that Mr. al-Baluchi unsuccessfully challenged with a petition to the United States Court of Appeals for the District of Columbia Circuit. See Respondents' Status Report [Dkt. No. 7] at 1.

Mr. al-Baluchi was originally charged before a military commission on May 9, 2008. See Respondents' Status Report [Dkt. No. 7] at 1. In 2009, however, the government decided to bring Mr. al-Baluchi and four other 9/11 co-conspirators to trial in federal court in New York. When that trial did not proceed, the Office of Military Commissions swore new "charges and specifications" against Mr. al-Baluchi on May 31, 2011 and January 25, 2012. The charging document accused Mr. al-Baluchi of nine crimes triable by military commission pursuant to 10 U.S.C. § 950t. See Exhibit A to Respondents' Unclassified Updated Memorandum in Opposition to Petitioner's Motion for Permanent Injunction or Mandamus with Respect to His Unlawful Capital Military Commission and Cross Motion to Hold Petition in Abeyance Pending Completion of Military Commission Proceedings, ("2012 Charge Sheet") [Dkt. No. 203-1] at 13-15, 17-36, 117-19. On April 4, 2012, Convening Authority Bruce MacDonald ordered that Mr. al-Baluchi be tried on these charges by capital military commission. In the intervening years, the government and Mr. al-Baluchi have been engaged in extensive pre-trial litigation before the capital military commission, as well as years of plea negotiations.³

On December 2, 2008, Mr. al-Baluchi filed with this Court his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Habeas Pet. at 1. The petition alleges that Mr. al-Baluchi was held by the CIA before arriving at Guantanamo Bay, that he is innocent of the charged offenses, and that his ongoing detention violates the United States Constitution and other U.S. laws. Id. at 3-4. The petition seeks a determination from this Court that his detention is unlawful. Id. The parties spent years litigating procedural matters associated with the habeas petition, including discovery, access to classified information, and preservation of evidence.

In 2018, Mr. al-Baluchi filed a motion for a permanent injunction or mandamus to enjoin the capital military commission proceedings, and respondents filed a cross-motion to hold in abeyance Mr. al-Baluchi's habeas corpus petition pending completion of the military commission proceedings. On July 29, 2019, this Court denied Mr. al-Baluchi's motion, granted respondents' cross-motion, and stayed the habeas corpus proceedings pending completion of the military commission trial and appeal. See Al-Baluchi v. Esper, 392 F. Supp. 3d 46, 52-53 (D.D.C. 2019). On March 10, 2022, Mr. al-Baluchi filed an unclassified motion to lift the stay on the habeas proceedings and compel the government to convene a Mixed Medical Commission, citing Mr. al-Baluchi's physical and psychological medical conditions. See MMC Mot. On July 29, 2022, Mr. al-Baluchi filed a related motion for an evidentiary hearing on his earlier motion. See Evidentiary Hr'g Mot. Both of these motions are now ripe for decision.

II. LEGAL STANDARD

The legal authority to detain Mr. al-Baluchi derives from the AUMF, Pub. L. No. 107-40, 115 Stat. 224. See Paracha v. Trump, 453 F. Supp. 3d 168, 176 (D.D.C. 2020). Enacted within a week of the terrorist attacks of September 11, 2001, 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 terrorist attacks that occurred on September 11, 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. No. 107-40, § 2(a), 115 Stat. 224, 224. The "detention of individuals . . . , for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion).

The "most current and precise statement of the government's detention authority" under the AUMF is found in the National Defense Authorization Act of 2012 ("NDAA"), Pub. L. No. 112-81, § 1021, 125 Stat. 1298, 1562. Paracha v. Trump, 453 F. Supp. 3d at 178. That statute affirms that the President's authority pursuant to the AUMF "to use all necessary and appropriate force" includes the authority "to detain covered persons . . . pending disposition under the law of war." Pub. L. No. 112-81, § 1021(a), 125 Stat. 1298, 1562. The 2012 NDAA defines a "covered person" to include "any person . . . who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners." Id. § 1021(b), 125 Stat. at 1562; see Ali v. Obama, 736 F.3d 542, 544 n.1 (D.C. Cir. 2013). And "[d]etention under the law of war" is permitted "until the end of the hostilities authorized by the [AUMF]." Al-Alwi v. Trump, 901 F.3d 294, 297 (D.C. Cir. 2018) (quoting Pub. L. No. 112-81, § 1021(c)(1), 125 Stat. at 1562); see Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011); see also Hamdi v. Rumsfeld, 542 U.S. at 520, 124 S.Ct. 2633 (plurality opinion) ("It is a clearly established principle of the law of war that detention may last no longer than active hostilities." (citing Geneva Convention (III) Relative to the Treatment of Prisoners of War art. 118, Aug. 12, 1949, 6...