Constitutional Law - Guantanamo Habeas - D.C. Circuit Holds That Petitioner Was Properly Detained as "Part Of" Enemy Forces

Harvard Law Review, May 2014 | Go to article overview

Constitutional Law - Guantanamo Habeas - D.C. Circuit Holds That Petitioner Was Properly Detained as "Part Of" Enemy Forces


CONSTITUTIONAL LAW--GUANTANAMO HABEAS--D.C. CIRCUIT HOLDS THAT PETITIONER WAS PROPERLY DETAINED AS "PART OF" ENEMY FORCES.--Hussain v. Obama, 718 F.3d 964 (D.C. Cir. 2013), reh'g en banc denied, No. 11-5344, 2013 U.S. App. LEXIS 17618 (D.C. Cir. Aug. 21, 2013).

In Boumediene v. Bush, (1) the Supreme Court established the constitutional privilege of habeas corpus review for detainees at Guantanamo Bay. (2) Under Boumediene, individuals detained pursuant to Congress's 2001 Authorization for Use of Military Force (3) (AUMF) are entitled to "meaningful review" of the evidentiary basis for their detention. (4) The D.C. Circuit has delineated a two-pronged test for the authority to detain under the AUMF: The government must prove that a detainee (1) "substantially support[ed]" (5) or (2) was "part of" al Qaeda or the Taliban. (6) This test was codified in the National Defense Authorization Act for Fiscal Year 2012 (7) (2012 NDAA). Recently, in Hussain v. Obama, (8) the D.C. Circuit applied this test in affirming the district court's denial of a detainee's habeas petition. The court held that the district court's findings of fact were not clearly erroneous and that those facts sufficiently supported the finding that the detainee was part of enemy forces when captured. (9) The D.C. Circuit's approach to this case highlights a deeply troubling element of its Guantanamo jurisprudence: an overly expansive understanding of who is considered "part of" enemy forces pursuant to the AUMF.

Abdul al Qader Ahmed Hussain, a Yemeni national, traveled to Pakistan in September 1999 for the stated reasons of studying the Quran, learning about computers, and engaging in charitable work. (10) While in

Pakistan, he lived in a Jama'at al-Tablighi (11) (JT) mosque in Quetta for three months, before traveling to Kabul, Afghanistan. (12) He stayed there for another three months, during which he claimed to have been performing a study of the plight of Afghan refugees. (13) Hussain then returned to Quetta, before traveling to Kabul a second time and then again returning to Pakistan. (14) He stayed at a JT mosque during both of these periods in Pakistan. (15) Hussain traveled to Afghanistan a final time in November 2000, living for ten months in a region north of Kabul on the front lines of the ongoing battle between the Taliban and the Northern Alliance. (16) During this time he lived with three Taliban guards, who gave and taught him how to use an AK-47 rifle, which he asserted was for protection from thieves and wild animals. (17) Following the September 11 attacks, Hussain returned to Pakistan. (18) He lived in Lahore in a JT mosque before moving to Faisalabad, where he was arrested by Pakistani police in March 2002. (19) He was still a teenager at the time. (20) He was subsequently transferred to U.S. custody (21) and has since been held at Guantanamo Bay. (22) In late 2005, Hussain filed a petition for a writ of habeas corpus with the District Court for the District of Columbia. (23) The district court denied Hussain's petition. (24) Judge Walton held that the government had presented sufficiently "damning" evidence that Hussain was part of al Qaeda or Taliban forces. (25) He found that Hussain's repeated extended stays at a JT mosque; the fact that he received a rifle from Taliban guards near a combat zone and was trained in its use; and inconsistencies between his actions and stated intentions, considered together, provided sufficient evidence in favor of detention. (26) Judge Walton also found that not only had Hussain failed to rebut persuasively the evidence against him, (27) but that inconsistencies in his testimony also "render[ed] [it] completely incredible" and "provide[d] further justification for his detention." (28)

The D.C. Circuit affirmed. (29) Writing for the court, Judge Griffith (30) determined de novo that the facts established by the district court supported detention. (31) Relying on precedent from prior detainee cases, the court stated that detention is justified under the AUMF if the government demonstrates by a preponderance of the evidence that the petitioner was "part of" enemy forces when captured.

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