Muhammad Husayn v. Austin

1

ZAYN AL ABIDIN MUHAMMAD HUSAYN ISN #10016, Petitioner, v. LLOYD AUSTIN, et al., Respondents.

Civil Action No. 08-1360 (EGS)

United States District Court, District of Columbia

May 26, 2023

MEMORANDUM OPINION AND ORDER

EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE.

Pending before the Court is Petitioner's Motion for Order Granting Writ of Habeas Corpus. See generally Mot for Order Granting Writ of Habeas Corpus (“Habeas Mot.”), ECF No. 488.^[1]Petitioner claims that his continued detention at Guantanamo Bay is unconstitutional under the Due Process Clause of the Fifth Amendment to the U.S Constitution and invalid under the 2001 Authorization for Use of Military Force (“AUMF”). See generally id. Respondents oppose, arguing that Petitioner may not invoke Due Process Clause protections and that Petitioner's detention is lawful under the AUMF. See generally Resp'ts' Opp'n, ECF No. 500.

Upon careful consideration of Petitioner's motion Respondents' opposition, the reply thereto, the arguments of amici,^[2] and the applicable law, and for the reasons explained below, the Court DENIES Petitioner's motion.

I. Background

Zayn Husayn, also known as Abu Zubaydah, (“Petitioner”) was born in Palestine and raised in Saudi Arabia. He has been detained at the U.S. Naval Base in Guantanamo Bay, Cuba (“Guantanamo”) since September of 2006, having been captured on or about March 28, 2002 in Faisalabad, Pakistan and held at various “secret black sites” until his transfer to Guantanamo. His detention is based on Respondents' allegation that he was part of, and substantially supported, al Qaeda and associated forces.

The Court recently ruled that Petitioner's continued detention is authorized by the AUMF. See generally Husayn v. Austin, No. 08-CV-1360, 2022 WL 2093067 (D.D.C. June 10, 2022). The AUMF permits 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.” Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001). In the 2012 National Defense Authorization Act (“2012 NDAA”) Congress reaffirmed “the authority of the President to use all necessary and appropriate force pursuant to the [AUMF],” including “[d]etention under the law of war without trial until the end of the hostilities authorized by the [AUMF].” National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 11281 § 1021(a), (b)(2), (c)(1), 125 Stat. 1298, 1562.

“The AUMF authorizes detention for the duration of the conflict between the United States and the Taliban and al Qaeda.” Al-Alwi v. Trump, 901 F.3d 294, 299 (D.C. Cir. 2018); see also Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011) (citing Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)(“The AUMF, among other things, authorizes the Executive Branch to detain for the duration of hostilities those individuals who are part of al Qaeda or the Taliban.”)). “Neither [the AUMF nor the 2012 NDAA] places limits on the length of detention in an ongoing conflict.” Id. at 297. “[T]he AUMF remains in force if hostilities between the United States and the Taliban and al Qaeda continue.” Id. (citing Ali v. Obama, 736 F.3d 542, 552 (D.C. Cir. 2013)(“[T]he 2001 AUMF does not have a time limit, and the Constitution allows the detention of enemy combatants for the duration of hostilities.”)).

Whether Petitioner's continued detention “remains necessary to protect against a significant security threat to the United States”-as distinct from its legality under the AUMF and whether detention is consistent with Petitioner's habeas rights-is reviewed on a periodic basis by the Guantanamo Bay Periodic Review Board (“PRB”). Ali v. Trump, 959 F.3d 364, 368 (D.C. Cir. 2020)(citing Exec. Order No. 15,567, 76 Fed.Reg. 13, 277 (March 7, 2011)(establishing the Periodic Review Board). Respondent represents that the result of Petitioner's initial PRB review was announced in September 2016, with the result being that he was designated for continued detention. Resp'ts' Opp'n, ECF No. 500 at 15. Since he was designated for continued detention at that time, Petitioner is eligible for another full PRB review every three years, see Exec. Order 13,567 at § 3(b), 76 Fed.Reg. 13,277 (Mar. 7, 2011); and for a file review every six months, see id. § 3(c). Respondent represents that a subsequent PRB was completed in April 2017 and another was ongoing as of January 2018. Resp'ts' Opp'n, ECF No. 500 at 15.

In the most recently-completed review of Petitioner's detention in March 2020, the Periodic Review Board made the following determination:

The Periodic Review Board, by consensus, determined that continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States.

In making this determination, the Board considered that regardless of his claim that he was not a formal member of al Qaida, his past involvement in jihadist activity to include probably serving as one of Usama bin Ladin's most trusted facilitators and his admitted abilities as a long-term facilitator and fundraiser for extremist causes.

Additionally, detainee's lack of remorse for his extensive role in training and facilitating large numbers of extremists, continued habit of viewing certain persons and countries as his enemies, and personal attributes and beliefs that make him susceptible to reengagement.

See Periodic Review Board, Unclassified Summary of Final Determination for ISN 10016 (Mar. 5, 2020), https://www.prs.mil/Portals/60/Documents/ISN10016/SubsequentHear ingV200305UPRISN10016SH1FINALDETERMINATIONPRB.pdf.^[3] Additionally, another Subsequent Full Review began in 2021; a hearing was held in July 2021 and the final determination has not yet been posted. See Periodic Review Secretariat, Subsequent Full Review for ISN 10016, https://www.prs.mil/Review-Information/Subsequent-Full-Review/ (last visited May 26, 2023) .

On January 11, 2018, Petitioner and ten other detainees jointly filed the instant motion. See Habeas Mot., ECF No. 488. An identical motion was filed in each case, and Petitioners and Respondents filed identical briefings in all cases. In August 2018, the motion was denied in one of the cases. See Ali v. Trump, 317 F.Supp.3d 480 (2018). That denial was affirmed by the Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), see Ali, 959 F.3d 364; and the petition for the writ of certiorari was denied, Ali v. Biden, 141 S.Ct. 2657 (2021).

II. Analysis

A. Petitioner's Detention Does Not Violate Due Process

Petitioner argues that “[t]he Due Process Clause of the Constitution applies at Guantanamo and places substantive limitations on executive detention of the kind at issue here, including a durational limitation that compels relief regardless of the original basis for detention.” Habeas Mot., ECF No. 488 at 16. The D.C. Cir has rejected this same argument as “sweep[ing] too far,” Ali v. Trump, 959 F.3d 364, 368 (D.C. Cir. 2020); providing the following guidance regarding the applicability of Due Process Clause protections to Guantanamo detainees:

The Supreme Court's decision in Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), unequivocally held that Guantanamo Bay detainees must be afforded those procedures necessary to ensure “meaningful review” of the lawfulness of their detention, id. at 783, 128 S.Ct. 2229. See Qassim, 927 F.3d at 524. In particular, detainees are constitutionally entitled to “those ‘procedural protections' ” that are “necessary (i) to ‘rebut the factual basis for the Government's assertion that [the detainee] is an enemy combatant'; (ii) to give the prisoner ‘a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law'; and (iii) to create a record that will support ‘meaningful review'” by federal courts. Id. at 528-529 (formatting modified) (quoting Boumediene, 553 U.S. at 779, 783, 128 S.Ct. 2229).

In identifying those constitutional protections for detainees, the Supreme Court pointed both to the Constitution's guarantee of habeas corpus, U.S. CONST. art. I, § 9, cl. 2 (commonly known as the Suspension Clause), and the Due Process Clause. Boumediene, 553 U.S. at 771-792, 128 S.Ct. 2229; see Qassim, 927 F.3d at 529.

Circuit precedent has not yet comprehensively resolved which “constitutional procedural protections apply to the adjudication of detainee habeas corpus petitions,” and whether those “rights are housed” in the Due Process Clause, the Suspension Clause, or both. Qassim, 927 F.3d at 530. In this case, Ali has chosen not to ground any of his claims for procedural protections in the Suspension Clause. So that issue is not before us. Instead, Ali's main argument puts all of his eggs in one constitutional basket. He argues that the Due Process Clause's procedural and substantive requirements apply wholesale, without any qualifications, to habeas corpus petitions filed by all Guantanamo detainees.

Ali, 959 F.3d at 368.^[4] In rejecting the same due process argument made in the instant motion, the D.C. Circuit stated:

For starters, the argument is in substantial tension with the Supreme Court's more calibrated approach in Boumediene, which tied the constitutional protections afforded to Guantanamo Bay detainees' habeas corpus proceedings to their role in vindicating the constitutional right to the Great Writ and the judicial role in checking Executive Branch overreach. See 553 U.S at 798, 128 S.Ct. 2229 (“[P]etitioners may invoke the fundamental procedural protections of habeas corpus.”)

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