RAZAK et al v. BUSH et al

Filing 313

MEMORANDUM OPINION to the Order denying Petitioner's Motion for Writ of Habeas Corpus. Signed by Judge Gladys Kessler on 3/29/16. (CL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HAMID AL RAZAK,
Petitioner,
v.

BARACK H. OBAMA, et al.,
Respondents

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Case No. 1:05-cv-1601 {GK)

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MEMORANDUM OPINION

Petitioner Haji Hamdullah1 has been detained as a prisoner of
war by the United States since his capture in 2003. Mr. Hamdullah
argues that active hostilities in Afghanistan have ceased and that
the United States is therefore obligated under the Third Geneva
Convention to release him immediately.

Respondents counter that

the Authorization for Use of Military Force continues to authorize
Mr.

Hamdullah's

detention

because

the

United

States

remains

engaged in active hostilities in Afghanistan.
This matter is before the Court on Petitioner's Motion to
Grant Petition for Writ of Habeas Corpus ("Motion")

[Dkt. No. 301].

Upon consideration of Petitioner's Motion, Respondents' Opposition
("Opp'n")
No. 308],

[Dkt.

No.

306],

Petitioner's

and the entire record herein,

Reply

("Reply")

[Dkt.

and for the reasons set

forth below, Petitioner's Motion shall be denied.

The name on the docket--Hamid Al Razak--is a result of an error
on the initial habeas filing, and Petitioner asserts that his
correct name is Haji Hamdullah. Mot. at 1 n. 1.
1

1 -

I .

BACKGROUND

A.

Mr. Hamdullah

Mr. Hamdullah is an Afghan citizen who was captured by Afghan
National Army forces in July 2003 in Afghanistan. Mot. at 2; Opp'n
at 3. He was subsequently transferred to the custody of the United
States and detained at Naval Station Guantanamo Bay. Mot. at 2;
Opp'n at 3. He has been detained at Guantanamo Bay for over 11
years. Mot. at 2-3.
Mr. Hamdullah filed a petition for a writ of habeas corpus in
2005, challenging the legality of his detention. See Petition for
Writ of Habeas Corpus
Tribunal

determined

[Dkt.

in

2006

No.

1] . A Combatant Status Review

that

Mr.

Hamdullah

was

properly

designated as an enemy combatant because of his alleged affiliation
with Hezb-e-Islami

Gulbuddin

( "HIG") .

See

Review of

Combatant

Status Review Tribunal for Detainee ISN #1119 [Dkt. No. 42-1].
On October
Respondents

8,

filed

2015,
their

Petitioner filed
Opposition

the present Motion.

on December

14,

2015,

and

Petitioner filed his Reply on January 8, 2016. Respondents filed
a Notice of Supplemental Authority on March 1, 2016 [Dkt. No. 309].
Petitioner similarly filed a Notice of Supplemental Authority on
March 11, 2016 [Dkt. No. 310], and Respondents filed a Response to
Petitioner's Notice of Supplemental Authority on March 16,
[Dkt. No. 311] .

- 2 -

2016

B.

The War in Afghanistan

In the immediate aftermath of the attacks of September 11,
2001,

Congress passed the Authorization for the Use of Military

Force ("AUMF"). Pub. L. No. 107-40, 115 Stat 224 (2001). In Hamdi
v. Rumsfeld, a plurality of the Supreme Court ruled that Congress's
"grant of authority for

the use of

'necessary and appropriate

force'" in the AUMF "include[s] the authority to detain [prisoners
of war]

for the duration of the relevant conflict." Hamdi,

U.S. 507, 521 (2004)

(plurality opinion); see also Aamer v. Obama,

742 F.3d 1023, 1041 (D.C. Cir. 2014)
held

that

under

542

the

[AUMF] ,

("[T]his court has repeatedly

individuals

may

be

detained

at

Guantanamo so long as they are determined to have been part of Al
Qaeda,

the

Taliban,

or

associated

forces,

and

so

long

as

hostilities are ongoing.").
Beginning in October 2001, U.S. and coalition forces began a
military campaign in Afghanistan that consisted of air, land, and
sea forces.

Opp'n at 5

(citing National Commission on Terrorist

Attacks Upon the United States, The 9/11 Commission Report at 33738

(2004)). The military campaign drove the Taliban from control

over much of Afghanistan by December 2001, "but Taliban, al-Qa'ida,
and associated forces continued to operate and conduct attacks in
Afghanistan."

Id.

From 2001 until

the end of 2014,

the United

States led a large-scale combat mission in Afghanistan known as
Operation Enduring Freedom. Id.

(citing Opp'n Ex. 4, Statement by

- 3 -

Secretary of Defense Chuck Hagel on Operation Enduring Freedom and
Operation

Freedom's

Statement")

Sentinel

at

(Dec.

1

28,

("Hagel

2014)

[Dkt. No. 306-2]).

Secretary Hagel stated that the close of 2014 would bring to
an end the
mission,

"combat mission in Afghanistan."

Id.

known as Operation Freedom's Sentinel,

Operation Freedom's Sentinel has two purposes:

The follow-up
began in 2015.

(1)

to work with

allies and partners "to continue training, advising, and assisting
Afghan security forces," and

( 2)

to continue the United States'

"counterterrorism mission against
ensure

that

Afghanistan

is

the

remnants

never again used

of

to

Al-Qaeda

stage

to

attacks

against our homeland." Id.
President Obama made similar remarks in a May 2014 speech
regarding the end of the combat mission and the Afghan people's
assumption of
Ex. 8,

responsibility

President

Barack

Afghanistan (May 27,

for

Obama,

2014)

securing

Statement

[Dkt. No.

their
by

301-4].

the

country.

Mot.

President

on

He stated that the

United States would "bring America's longest war to a responsible
end,"

in

2014,

noting

that

the

number

of

American

troops

in

Afghanistan would be under 10,000 by the beginning of 2015, down
from 180,000 when he took office. Id. at 1,- 3. He continued, "this
is how wars end in the 21st century- -not through signing ceremonies,
but through decisive blows against our adversaries, transitions to
elected

governments,

security
-

forces
4

-

who

take

the

lead

and

ultimately full responsibility." Id. at 3. In his January 20, 2015
State

of

the

Union

address,

President

Obama

reiterated

his

statement that the "combat mission in Afghanistan is over." Mot.
Ex. 11, President Barack Obama, State of the Union Address (Jan.
20, 2015)

[Dkt. No. 301-4].

On September 30,

2014,

the United States and Afghanistan

executed a Bilateral Security Agreement. Se.e Mot. at 6-7
Ex.

2,

Security and Defense

Cooperation Agreement

(citing

between the

Islamic Republic of Afghanistan and the United States of America
("Bilateral Security Agreement")

[Dkt. No. 301-4]). The Bilateral

Security Agreement's stated purpose is to foster close cooperation
between the United States and Afghanistan to "strengthen security
and stability in Afghanistan,

counter terrorism,

regional and international peace and stability,

contribute to

and enhance the

ability of Afghanistan to deter [threats against it]." Bilateral
Security Agreement,

art.

2

~

1. The Agreement denies the United

States the ability to conduct combat operations in Afghanistan
without Afghanistan's agreement, and lays out the United States'
role in undertaking "supporting activities." Id. art. 2 ~ 2.

II.

LEGAL STANDARD
A.

AUMF Detention

Per the terms of the AUMF, the President
is authorized to use all necessary and appropriate force
against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the
-

5 -

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).
The AUMF sets no expiration date and is in fact silent
on the issue of when or how it expires. The Supreme Court and
Congress however have both provided guidance on the duration
of the AUMF. As discussed above, a plurality of the Supreme
Court in Hamdi held that the AUMF granted the President the
authority

to

conflict."

detain

542

"for

U.S.

at

the
521.

duration

of

In

National

the

Authorization Act for Fiscal Year 2012

the

relevant

( "NDAA"),

Defense
Congress

reaffirmed the provisions of the AUMF and the President's
authority

to

hostilities."
1298,

1562

detain

covered

Pub.

No.

(2011).

L.

In

persons

112-81,

2014,

our

"until

the

§ 102l(c) (1),
Court

of

end

of

125 Stat.

Appeals

also

reaffirmed that under the AUMF, "individuals may be detained
at Guant&namo so long as they are determined to have been
part of Al Qaeda, the Taliban, or associated forces, and so
long as hostilities are ongoing." Aamer, 742 F.3d at 1041.
B.

Geneva Convention

The

Third Geneva Convention was

ratified as

a

treaty by

Congress and the President in 1955. See Geneva Convention (III)
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
- 6 -

U.S.T. 3316, 75 U.N.T.S. 135 ("Third Geneva Convention"). The first
paragraph of Article 118 of the Third Geneva Convention requires
that

a

prisoner

of

war

be

released

"without

cessation of active hostilities." Id. art. 118.

delay

after

the

While Article 118

does not explicitly define "cessation of active hostilities," the
second

paragraph

does

contemplate

that

cessation

of

active

hostilities might not always be reached through a formal agreement
or peace treaty. Id.
release]

("In the absence of stipulations [regarding

in any agreement concluded between the Parties to the

conflict with a view to the cessation of hostilities, or failing
any such agreement,

each of

the Detaining Powers shall

itself

establish and execute without delay a

plan of repatriation in

conformity

down

with

the

principle

laid

in

the

foregoing

paragraph.")
C.

Judicial Review

Petitioner's

Petition

raises

two

issues:

whether

"active hostilities" are considered to have ended, · and who
makes that determination. Both parties appear to agree that
the Court should rely on the President's decision, but differ
as to how to interpret President Obama's position. Petitioner
relies on speeches made by the President declaring an end to
combat

operations

Respondents

in

Afghanistan,

rely on the

assertions

-

7 -

Mot.

at

21-22,

by indi victuals

while
in the

political branches that active hostilities continue. Opp'n at
31-32.
While

entitled

to

some

deference,

the

President's

position is not dispositive. Our Court of Appeals has stated
that,

under

separation

of

powers

principles,

" [t]

he

determination of when hostilities have ceased is a political
decision,
matter,

and we defer to the Executive's opinion on that
at

least

in

the

absence

of

an

authoritative

congressional declaration purporting to terminate the war."
Al Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010) (citing
Ludecke v. Watkins, 335 U.S. 160, 168-70 & n.13 (1948)). But,
the

Hamdi

plurality

recognized

that

deference

to

the

Executive must have limits. Hamdi, 542 U.S. at 530 ("history
and

common

detention
oppression

sense
carries
and

teach
the

abuse

us

that

an

unchecked

system

potential

to

become

means

for

present

[an

of

others

who

do

not

a

of

immediate threat to national security]").
As Judge Lamberth noted in Al Warafi v. Obama, 2 the Hamdi
Court

held

that

the AUMF' s

detention authorization turns

2

On March 4, 2016, the United States Court of Appeals for the
District of Columbia vacated Judge Lamberth's opinion and order in
Al Waraf i and remanded with instructions to dismiss the case as
moot. Al-Wrafie v. Obama, No. 15-5266. The case was mooted by the
petitioner's subsequent transfer from the United States' custody.
Despite this, the case remains "on the books" and retains its
persuasive value. See Nat' 1 Black Police Ass' n v. District of
- 8 -

partly on whether "the record establishes that United States
troops are still involved in active combat in Afghanistan."
Al Warafi v.

Obama,

No.

(D.D.C. July 30, 2015)
Hamdi,

542

U.S.

at

09-CV-2368,

2015 WL 4600420 at *3

(emphasis added in Al Warafi)
521) .

As

Judge

Lamberth

(quoting

indicated,

a

"record" implies review by a court, and suggests that Hamdi
stands for the proposition that a court can and must examine
the issue of whether active combat continues. Id.
The Court need not fully address Respondents' separation
of powers argument at this time because the Court finds that
the President has not declared the end of active hostilities
and because the Court agrees with Respondents' position that
active hostilities continue in Afghanistan.
D.

Standard of Review

The Government bears the burden of proving by a preponderance
of the evidence that Mr. Hamdullah is lawfully detained. See In re
Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO §II.A (Nov.
6,

2008)

("The

government

bears

the

burden

of

proving

by

a

preponderance of the evidence that the petitioner's detention is
lawful,")

(citing Boumediene v.

Bush,

553 U.S.

723,

787

(2008)

("The extent of the showing required of the Government in these
cases

is

a

matter

to be

determined.")).

The D.C.

Circuit has

Columbia, 108 F.3d 346, 354 (D.C. Cir. 1997); Rabbani v. Obama, 76
F. Supp. 3d 21, 24-25 n.3 (D.D.C. 2014).
- 9 -

affirmed

that

"a

preponderance

of

the

evidence

standard

is

constitutional in evaluating a habeas petition from a detainee
held at Guantanamo Bay, Cuba." Awad v. Obama, 608 F.3d 1, 10 (D.C.
Cir. 2010); see also Al Odah v. United States, 611 F.3d 8, 13 (D.C.
Cir. 2010), cert. denied 131 S. Ct. 1812 (2011)
settled

law

that

a

preponderance

of

the

("It is now well-

evidence

standard

is

constitutional in considering a habeas petition from an individual
detained

pursuant

to

authority

granted

by

the

AUMF . " ) .

Accordingly, the burden of proof remains with the Government.
III. ANALYSIS
A.

Cessation of Active Hostilities

The crux of the Parties' disagreement is whether detention is
authorized

for

hostilities."

the

duration

of

Compare Hamdi,

542

"active
U.S.

at

combat"
521

or

("If

"active

the

record

establishes that United States troops are still involved in active
combat in Afghanistan, those detentions are part of the exercise
.") with Hamdi, 542 U.S.

of 'necessary and appropriate force'

at 520 ("It is a clearly established principle of the law of war
that detention may last no longer than active hostilities."); see
also Third Geneva Convention, Art. 118

(prisoners of war must be

released "after the cessation of active hostilities").
The
adopted

"cessation of
in

the

1949

active

Geneva

hostilities"

Conventions

standard was

following

the

first

delayed

repatriation of prisoners of war in earlier armed conflicts. See
- 10 -

3 Int'l Comm. of Red Cross, Commentary: Geneva Convention Relative
to the Treatment of Prisoners of War,
1960)

541-43

(J. Pictet gen. ed.

("Third Convention Commentary") .
The two predecessor multilateral law-of-war treaties to the

1949 Geneva Conventions required repatriation of prisoners of war
only "after the conclusion of peace." See id. at 541. Repatriation
delays arose after World Wars I and II due to a substantial gap in
time between the cessation of active hostilities and the signing
of formal peace treaties. Id. The "cessation of active hostilities"
requirement

sought

repatriation no

to

correct

this

problem,

longer contingent on a

formal

thereby

making

peace accord or

political agreement between the combatants. Id. at 540, 543, 54647.

In light of this history, Petitioner correctly interprets the
Third Geneva Convention's

"cessation of active hostilities"

so

that final peace treaties are no longer a prerequisite to mandatory
release

of prisoners

argues

that

the

of war.

Third

Based on that

Geneva

Convention

change,

Petitioner

contemplates

the

possibility that some degree of conflict might continue even after
the core of the fighting has subsided. Mot. at 11.
Petitioner

argues

that

cessation

requires only an end to active combat.

of
Mot.

active
at 13.

hostilities
Petitioner

reaches this conclusion by comparing the language of the Third
Geneva Convention with language in Articles 6 and 133 of the Fourth
- 11 -

Geneva Convention. See Mot. at 13, 15-17 (citing Geneva Convention
(IV)

Re la ti ve to the Protection of Civilian Persons in Time of

War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 ("Fourth Geneva
Convention")).
Article 133 of
internment

of

the Fourth Geneva Convention addresses the

civilians

in

wartime

and

provides

that

such

internment "shall cease as soon as possible after the close of
hostilities." Fourth Geneva Convention art.
Fourth Convention's Commentary,

133. Relying on the

Petitioner attempts to show that

"close of hostilities" could be a point in time that might occur
after "cessation of active hostilities."
The Court is not convinced. Indeed, the Commentary Petitioner
cites acknowledges that the provisions are similar and "should be
understood
Commentary:

in

the

same

Geneva

sense."

Convention

4

Int'l

Relative

Comm.
to

the

of

Red

Cross,

Protection

of

Civilian Persons in Time of War, 514-15 (J. Pictet gen. ed. 1960)
("Fourth Convention Commentary").
Pe ti ti oner also
Convention,
Convention

looks

to Article

6

of

the

Fourth Geneva

which states that application of the Fourth Geneva
"shall

cease on the

Fourth Geneva Convention,

art.

close of military operations."
6. The phrase "close of military

operations" was understood to mean "the final end of all fighting

- 12 -

between all those concerned." 3 Fourth Convention Commentary at 62.
The

Court

agrees

with

Petitioner

that

"cessation

of

active

hostilities" is distinct from "close of military operations," and
that active hostilities can cease prior to the close of military
operations.
This distinction is consistent with the differing purposes of
Article 6 (defining the period of time in which the Fourth Geneva
Convention, in its entirety, applies) and Article 118 (focusing on
detention specifically). But, it does not necessarily follow that
"cessation of active hostilities" therefore requires only an end
to combat operations, as Petitioner argues. See Mot. at 17.
For

the

foregoing

reasons,

the

Court

concludes

that

the

appropriate standard is cessation of active hostilities and that
active

hostilities

can

continue

after

combat

operations

have

ceased. But, cessation of active hostilities is not so demanding
a standard that it requires total peace, signed peace agreements,
or an end to all fighting.
B.

Mr. Hamdullah's Detention Under the AUMF

Next, the Court looks to whether active hostilities have, in
fact, ceased. Petitioner relies heavily on the Bilateral Security
Agreement and the President's speeches regarding the end of the

The main purpose of this statement was to clarify that if more
than two nations are involved in a conflict, the Fourth Convention
only ceases to apply after the fighting stops between all parties,
not just some of the parties. Fourth Convention Commentary at 62.
3

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combat mission and war in Afghanistan in support of his argument
that active hostilities have ceased.
Petitioner

relies

on

the

Bilateral

Security

Agreement's

requirement that the United States receive consent from the Afghan
government prior to conducting combat operations in Afghanistan as
evidence that combat operations have ceased. See Mot. at 7. Even
assuming this to be true,

the Court has already determined that

"active hostilities" are not the same as "combat operations. See
supra,

Section III .A.

The Bilateral Security Agreement

is

not

evidence that active hostilities have ceased. Respondents add that
although

the

United

States

has

ended

its

combat

mission

in

Afghanistan, this shift does not mark the end of active hostilities
in

Afghanistan,

and

indeed,

fighting

still

continues.

Opp'n

at 8-11.
Petitioner cites to speeches by the President, including his
2015 State of the Union Address and his May 2014 Statement on
Afghanistan, but notably, none of these statements discuss the end
of "active hostilities." See supra,

4-5.

The end of the combat

mission is not synonymous with the end of active hostilities. See
supra, Section III.A. Indeed, the President has expressly stated
that active hostilities continue. See,

~,

Mot. Ex. 13, Letter

from the President: Six Month Consolidated War Powers Resolution
Report

(June 11,

2 015)

[Dkt.

No.

3 01-4]

(emphasis added)

("The

United States currently remains in an armed conflict against al- 14 -

Qa'ida, the Taliban, and associated forces, and active hostilities
against those groups remain ongoing.").
Petitioners
Afghanistan

as

point

to

evidence

greatly

of

reduced

cessation

of

troop
active

numbers

in

hostilities.

Respondents counter that the continued presence of nearly 10,000
U.S. troops in Afghanistan is actually evidence of ongoing active
hostilities. Mot. at 19, 21; Opp'n at 16. While troop numbers alone
are

not

sufficient

to

determine

whether

active

hostilities

persist, see Mot. at 22, a United States presence of nearly 10,000
troops

certainly

supports

the

conclusion

that

ongoing

active

hostilities exist.
Respondents provide numerous examples of ongoing conflict in
Afghanistan

and

instances

of

hostile

forces

engaging

U.S.

personnel. See Opp'n at 16-18. In 2015, there were over 360 "close
air

support

missions

carried

out

by

the

United

States

in

Afghanistan involving the release of at least one weapon." Id. at
16. Coalition forces conducted air strikes in southern Afghanistan
that destroyed a large al-Qaeda training camp and U.S. armed forces
continue to participate in certain ground operations. Id. at 17.
"The Geneva Conventions require release and repatriation only
at the 'cessation of active hostilities.'" Al-Bihani, 590 F .3d at
874

(citing Third Geneva Convention art. 118). As this Court has

noted,

"The Supreme Court and the D. C.

Circuit have repeatedly

held that detention under the AUMF is lawful for the duration of
- 15 -

active hostilities." Al Odah v. United States, 62 F. Supp. 3d 101,
114 (D.D.C. 2014). While what constitutes "active hostilities" has
never been clearly defined, Respondents have provided convincing
examples

of

ongoing

hostilities

in

Afghanistan.

Given

this

evidence,

combined with the deference accorded the Executive's

determination of when hostilities have ceased, the Court concludes
that active hostilities continue in Afghanistan. Mr. Hamdullah's
continued detention, therefore, is both authorized under the AUMF
and does not violate the Third Geneva Convention.

IV.

CONCLUSION

For

the

foregoing

reasons,

Petitioner's

Motion

to

Grant

Petition for Writ of Habeas Corpus shall be denied. An Order shall
accompany this Memorandum Opinion.

March 29, 2016

Glad}TSKsler
United States District Judge

Copies to: attorneys on record via ECF

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