Lep v. Biden

MOHAMMED NAZIR BIN LEP, Petitioner, v. JOSEPH R. BIDEN et al., Respondents.

Civil Action No. 20-3344 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 25, 2021

MEMORANDUM OPINION

Petitioner Mohammed Nazir Bin Lep is a detainee at the Guantanamo Bay Naval Station in Guantanamo Bay, Cuba. He has been held in United States custody for eighteen years pursuant to the 2001 Authorization for Use of Military Force ("AUMF"), which permits the United States to detain persons who were part of or substantially supported al-Qaida, the Taliban, or associated forces. See Pub. L. No. 107-40, 115 Stat. 224 (2001). On October 15, 2020, Bin Lep filed a habeas petition in this Court challenging, inter alia, the legality of any future prosecution against him and his detention under the AUMF. The government finally referred criminal charges against Bin Lep to a military commission on January 21, 2021. Rule 707 of the Rules for Military Commissions ("RMC") designates that a defendant must typically be arraigned within thirty days of the service of charges. But in early February, the original military judge continued Bin Lep's arraignment for six months, over his objection, citing safety concerns stemming from the COVID-19 pandemic. That judge, it later turned out, was already planning to relocate to Germany in mid-June and was removed, after only a few months, from Bin Lep's case.

The government has now moved to hold Bin Lep's habeas petition in abeyance pending the completion of his military commission proceedings, which it contends are firmly underway. Bin Lep objects to the government's abstention request and has cross-moved to permanently enjoin his military commission proceedings as violative of his speedy trial rights under RMC 707. For the following reasons, the Court will defer resolution of both motions until after Bin Lep's rescheduled arraignment date of August 30, 2021 and stay this case during the intervening months. In the meantime, the government will remain obligated to file an updated factual return to the habeas petition by July 16, 2021, as previously ordered by this Court.

Background

Bin Lep is a citizen of Malaysia. Habeas Pet. [ECF No. 40] ¶ 8. He was captured by local authorities in Thailand in 2003 and transferred to CIA custody based on his alleged participation in al-Qaida operations against the United States. Id. ¶¶ 1, 8. He has been held at Guantanamo since 2006. Redacted Decl. of Mark S. Martins ("Martins Decl.") [ECF No. 51-1] ¶ 4.

The Military Commissions Act of 2009 ("MCA") authorizes the President to establish military commissions to try alien unprivileged enemy combatants for war crimes and certain other offenses. 10 U.S.C. § 948b(a)-(b). Before such a proceeding begins, charges against the accused must be sworn by a member of the armed forces having knowledge or reason to believe the matters alleged are true. Id. § 948q. Then, the Secretary of Defense or his designee—here, the Convening Authority—considers the sworn charges and supporting evidence and decides whether to refer the charges to a military commission. RMC 401, 406, 601. Finally, a military commission must be convened. Id. at 504, 601. All of these elements are required for a "referral" of charges, which is "the order of a convening authority that charges against an accused will be tried by a specified military commission." Id. at 601(a), 601(a) Discussion.

Bin Lep was first recommended for prosecution by President Obama's Guantanamo task force in January 2010. See Guantanamo Review Dispositions, Letter from U.S. DOJ (June 17,2013) Enclosure at 4, https://perma.cc/23H5-5ZXP. Prosecutors initially swore charges against Bin Lep in December 2017 and then supplemented those charges in April 2019. See Martins Decl. ¶¶ 5, 14. Nonetheless, by October 2020, formal charges had still not been referred against Bin Lep, and he filed the instant habeas petition in this Court.¹ At the same time, he sought preliminarily to enjoin the government from taking any further steps to try him by military commission until his habeas petition was resolved, arguing, inter alia, that the government's seventeen-year delay in charging him had rendered any future prosecution ultra vires. See Mem. of Law in Supp. of Pet'r's Mot. for Prelim. Inj. [ECF No. 41-1] at 1. This Court denied Bin Lep's requested injunction, concluding that although it had jurisdiction over his claims and abstention was inappropriate at the pre-referral stage, Bin Lep had not shown a likelihood of success on the merits or irreparable injury. See Mem. Op. (Dec. 14, 2020) [ECF No. 56] at 1. At the parties' request, the Court set a deadline of January 28, 2021 for the parties to propose a schedule for further proceedings on the habeas petition. See Order (Dec. 14, 2020) [ECF No. 55] at 1.

On January 21, 2021—nearly eighteen years after Bin Lep's capture—the Convening Authority finally referred charges against Bin Lep to a military commission with directions that he be tried jointly with two codefendants, Encep Nurjaman and Mohammed Farik bin Amin. See Resp'ts' Mem. in Supp. of Mot. to Hold Pet. in Abeyance Pending Completion of Mil. Comm'n Proceedings ("Abeyance Mot.") [ECF No. 62] at 1. The charges allege that "[Bin Lep] and his codefendants planned, and aided and abetted in the bombing of nightclubs in Bali, Indonesia, in2002 and the bombing of a J.W. Marriot hotel in Jakarta, Indonesia, in 2003." Id. (citations omitted). The charges include "violations of the law of war, including conspiracy, murder, attempted murder, intentionally causing serious bodily injury, terrorism, attacking civilians, attacking civilian objects, destruction of property, and accessory after the fact." Id. at 1-2. RMC 707(a)(1) provides that a defendant must be arraigned "[w]ithin 30 days of the service of charges," unless a continuance is granted. The Chief Trial Judge for the Military Commissions Trial Judiciary, Colonel Douglas W. Watkins, promptly detailed Colonel Charles L. Pritchard as presiding judge, and in accordance with that Rule, Colonel Pritchard scheduled the arraignments for February 22, 2021. See App'x [ECF No. 71] at 1.²

In a January 28, 2021 joint status report, the government informed this Court that it intended to file a motion to hold Bin Lep's habeas petition in abeyance now that he had been formally charged. See Joint Status Report (Jan. 28, 2021) [ECF No. 60] at 1-2. The government also requested that the Court defer setting a due date for the factual return—which would set forth the factual basis for Bin Lep's detention under the AUMF—until the abeyance motion was resolved. Id. at 2. The government stated that, even though it had filed a factual return in Bin Lep's original habeas case twelve years prior, it would take time to update that document "based on further developments and information made reasonably available over roughly [the last] decade." Id. at 3. Bin Lep agreed to the government's proposed briefing schedule on the abeyance motion, but requested a March 1 deadline for the factual return, emphasizing that just prior to the referral of charges the government had "represented that [it was] prepared to provide an updated factual return in reasonably short order." Id. at 4. The following day, the Court entered a scheduling order adopting the parties' proposed briefing schedule and requiring the governmentto file an updated factual return by April 15. Scheduling Order (Jan. 29, 2021) [ECF No. 61].

On January 30, 2021, Bin Lep's codefendants asked Colonel Pritchard to continue the arraignments either indefinitely or for a minimum of thirty days, citing safety concerns due to COVID-19 and lack of adequate resources to proceed. App'x at 3. Bin Lep objected to those requests, insisting on his right to a speedy trial. Id. at 4. The government agreed that postponing the arraignments was appropriate "in light of evolving efforts by the federal government to fight the ongoing pandemic and to continuously update health protection policy to meet changing conditions" and sought a forty-day continuance. Id.

Colonel Pritchard determined on February 2, 2021 that a "continuance of the arraignments [wa]s reasonable." Id. at 9. His ruling described a number of "gaps" in the government's plan for conducting the arraignments at Guantanamo and reasoned that "because the Convening Authority referred the charges during the global COVID-19 pandemic, [that] plan created an artificial timeline that d[id] not permit any of the required participants sufficient time to adequately prepare for travel[,] the Defense to fully brief the Commission on their opposition to [that] plan," or defense counsel to "discuss the arraignments" with defendants beforehand. Id. at 7. Nonetheless, Colonel Pritchard concluded that an indefinite continuance was inappropriate given the government's and Bin Lep's "rights to proceed to trial in a timely fashion," and indicated that an amended arraignment order would issue "in due course." Id. at 8-9.

On February 11, Colonel Pritchard asked the parties to propose new arraignment dates, as well as "an initial litigation schedule [for] law motions, jurisdictional challenges, and systemic challenges," noting that "[f]or planning purposes, the date for the arraignments w[ould] be no earlier than 26 July 2021." Id. at 10. That order also stated that discovery would proceed as normal, notwithstanding the continued arraignments, and that the defendants should submit exparte their initial theory of the case so that Colonel Pritchard could prepare to address any forthcoming discovery disputes regarding classified information. Id. at 10-11.

In accordance with this Court's scheduling order, the government filed its abeyance motion on February 15, arguing that this Court should abstain from resolving Bin Lep's habeas petition until his military commission proceedings are complete. The government briefly referenced the postponement of Bin Lep's arraignment in a footnote, but ascribed...