UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UTHMAN ABDUL RAHIM MOHAMMED UTHMAN,
Petitioner,
v. Civil Action No. 04-cv-1254 (RCL)
DONALD J. TRUMP, et al.,
Respondents.
MEMORANDUM OPINION
Petitioner Uthman Abdul Rahim Mohammed Uthman (ISN 27) (“Uthman”), a Yemeni
national, challenges his continued detention at the United States Naval Station at Guantanamo Bay,
Cuba. After his capture near Tora Bora in December 2001 and subsequent transfer to U.S.
authorities, Uthman was taken to Guantanamo, where he remains in custody. This Court previously
granted Uthman’s petition for writ of habeas corpus, finding the Government could not
demonstrate by a preponderance of the evidence that Uthman was part of al Qaeda. Abdah v.
Obama, 708 F. Supp. 2d 9, 13, 23 (D.D.C. 2010) (Kennedy, H., J., presiding). On review, the D.C.
Circuit reversed, finding the Government’s evidence “more than sufficient” to justify Uthman’s
detention. Uthman v. Obama, 637 F.3d 400, 404 (D.C. Cir. 2011). The Supreme Court denied
Uthman’s petition for writ of certiorari. Uthman v. Obama, 567 U.S. 905 (2012). Uthman now
argues that the Authorization for Use of Military Force (AUMF) does not authorize his continued
detention, which he labels “punitive” and “excessive,” and that his detention violates the Due
Process Clause of the Fifth Amendment to the U.S. Constitution.
Currently before the Court is Uthman’s Motion to Grant Petition for Writ of Habeas Corpus
(“motion” or “petition”). ECF No. 1072. After considering the motion, opposition, reply, and
1 supplemental briefs, the Court finds Uthman’s continued detention lawful, and therefore DENIES
his Motion to Grant Petition for Writ of Habeas Corpus.
I. BACKGROUND
Petitioner Uthman Abdul Rahim Mohammed Uthman is a Yemeni national. Uthman, 637
F.3d at 402. In December 2001, Uthman was captured “at the Afghan-Pakistani border near Tora
Bora,” along with perhaps twenty or thirty others. Id. at 402, 402 n.1. Among these were “two al
Qaeda members who were Osama bin Laden bodyguards and another man who was a Taliban
fighter.” Id. at 402. At the time of his capture, al Qaeda forces had gathered at Tora Bora “to wage
a major battle against the United States and its allies.” Id. On suspicion Uthman was a member of
al Qaeda, he was transferred to Guantanamo in January 2002, where he remains today. Id.
In 2004, Uthman filed a petition for writ of habeas corpus in the U.S. District Court for the
District of Columbia challenging his detention. Id. Uthman claimed that though he was in
Afghanistan at the time of his capture, he “was not part of Al Qaeda,” but instead had journeyed
there “to teach the Quran to children.” Abdah, 708 F. Supp. 2d at 13. Applying circuit precedent,
the District Court determined that Uthman’s detention would be lawful so long as the Government
could show Uthman’s membership in al Qaeda was “more probable than not.” Id. (quoting United
States v. Mathis, 216 F.3d 18, 28 (D.C. Cir. 2000)). After reviewing the evidence, the District
Court found that “Uthman (1) studied at a school at which other men were recruited to fight for Al
Qaeda; (2) received money for his trip to Afghanistan from an individual who supported jihad; (3)
traveled to Afghanistan along a route also taken by Al Qaeda recruits; (4) was seen at two Al
Qaeda guesthouses in Afghanistan; and (5) was with Al Qaeda members in the vicinity of Tora
Bora after the battle that occurred there.” Abdah, 708 F. Supp. 2d at 22. Despite this “quite
incriminating” evidence, the District Court concluded upon “close examination” that it was “not
sufficient to carry respondents’ burden.” Id. at 23. In the Court’s view, the Government had leveled
2 merely a charge of “guilt by association” against Uthman. Id. Accordingly, it granted Uthman’s
petition for writ of habeas corpus. Id.
On review, the D.C. Circuit reversed. Uthman, 637 F.3d at 402 (Kavanaugh, J.). Surveying
both the District Court’s findings and uncontested facts from the record, it found that evidence of
Uthman’s membership in al Qaeda easily satisfied the preponderance standard, and thus that his
detention was lawful. Id. at 404. Specifically, the D.C. Circuit noted,
• “Uthman was captured in December 2001 in the vicinity of Tora Bora, an isolated, mountainous area where al Qaeda forces had gathered to fight the United States and its allies. • When captured, Uthman was traveling with a small group of men, two of whom were al Qaeda members and bodyguards for Osama bin Laden and one of whom was a Taliban fighter. • Leading up to his capture, Uthman’s journey began at a religious school in Yemen where al Qaeda had successfully recruited fighters. The two al Qaeda members who were later captured with Uthman, as well as the Taliban fighter captured with Uthman, also attended the Furqan Institute. • Uthman traveled to Afghanistan along a route used by al Qaeda recruits. • Uthman lied to hide the fact that someone else paid for his travel to Afghanistan. • While in Afghanistan, Uthman was seen at an al Qaeda guesthouse.” Id. at 404.
The D.C. Circuit thought that Uthman’s attempt to explain away these facts as nothing
more than a series of innocent coincidences “strain[ed] credulity.” Id. at 407. It would require
believing that Uthman was “a kind of Forrest Gump in the war against al Qaeda”—always just so
happening to appear in places of extraordinary significance to the war on terror. Id. Unwilling to
indulge that remarkable claim, the panel overturned the judgment below and remanded with
instructions to deny his petition. Id. at 407–08. The Supreme Court then denied his petition for
writ of certiorari. Uthman, 567 U.S. at 905.
Fourteen years after his initial petition and seven years after the panel decision, Uthman
filed the focus of this Opinion: his Motion to Grant Petition for Writ of Habeas Corpus. ECF No.
3 1072. The government then filed its response, ECF No. 1075, and Uthman his reply. ECF No.
1078. With the briefing complete, the motion is now ripe for review.
II. LEGAL STANDARDS
Uthman’s previous habeas petition centered on a question of fact—whether he was more
likely than not an operative of al Qaeda. Abdah, 708 F. Supp. 2d at 12–13. His present challenge
presents mostly questions of law—whether the uncontested duration of his detention is
“excessive,” “punitive,” exceeds the scope of the AUMF, or violates Due Process. Motion at 5,
10, 15, ECF No. 1072. The Court will examine the merits of each claim according to the relevant
legal doctrines in the sections that follow. The Court must also consider whether the conflict in
which Uthman was captured continues today; a factual determination that will inform its legal
analysis. As a general proposition, the Government must only demonstrate such facts by a
preponderance of the evidence. Ali v. Trump, 959 F.3d 364, 372 (D.C. Cir. 2020) (citing Uthman,
637 F.3d at 403 n.3; Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010) (“Lest there be any further
misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies
constitutional requirements in considering a habeas petition from a detainee held pursuant to the
AUMF.”)). With that admonition in mind, the Court proceeds to the substance of Uthman’s filing.
III. ANALYSIS
Uthman’s motion sets forth two principle grounds for relief. First, he contends that “the
AUMF does not authorize [his] detention.” Motion at 5, ECF No. 1072. That is so, in his view, for
three reasons: his detention has become “punitive,” rather than a genuine mechanism to keep him
off the battlefield; the government’s AUMF authority has “unraveled” given developments in the
war on terror; and, last, the “‘particular conflict’ in which Uthman was captured has ended.” Id. at
13. Second, he argues that his “continued detention violates the Constitution’s due process clause.”
Id. at 15. That is the case, he says, because his detention has become “arbitrarily divorced” from
4 the legitimate goal of preventing his resumption of hostilities. Id. at 18. Thus, it contravenes “the
due process right to be free from the arbitrary deprivation of liberty at the hands of the
government.” Id. at 17. After considering and dismissing the Government’s procedural objections
to Uthman’s petition, the Court will explain why neither of Uthman’s grounds for relief succeed.
1. Is Uthman’s Present Filing Procedurally Barred?
The Government contends “as an initial matter” that the Court should not entertain
Uthman’s Motion because its “procedural posture” is “fundamentally flawed.” Response at 8–9,
ECF No. 1075. The Government’s understanding is that Uthman’s filing represents an attempt to
either renew his original petition or to obtain relief from the denial of that petition under Rule
60(b). Id. at 8; see also Fed. R. Civ. P. 60. If it is the first option, the Government says that
Uthman’s failed first petition must be res judicata with respect to his present motion, since “it was
[already] judicially determined that he is so detainable.” Response at 8–9, ECF No. 1075. If it is
the second, the Government says, then Uthman has no good arguments for relief under the various
provisions of Rule 60(b). Grounds (b)(1)–(b)(3) are time barred, the judgment is not void under
(b)(4), (b)(5) is not relevant because the prior judgment is not executory, and his detention is not
among those “extraordinary circumstances” that might justify relief under (b)(6). Id.
So what is Uthman filing here? A “renewal” of his old petition, a Rule 60 attack on the
judgment denying that old petition, or a second, new petition? In his reply, Uthman makes some
arguments about (b)(5) and (b)(6)—that his detention is an inequitable or “extraordinary”
circumstance justifying relief—but then he gets to the heart of the matter: his present “Motion” is
really “a new petition for habeas relief.” Reply at 3, ECF No. 1078. Uthman is not attacking the
2011 denial of his first petition on the grounds the denial was defective for mistake, fraud, or
anything else. He is not re-litigating the claim that he is not al Qaeda and was only in Afghanistan
5 to teach the Quran. Instead, he is asserting new and distinct arguments. True, he argued in his 2004
petition that his detention was “arbitrary” and violated Due Process. Petition at 17, ECF No. 1. But
back then he claimed it was “arbitrary” because he was not actually a terrorist, and so was being
held without cause. Id. at 9. Now that the D.C. Circuit has said he most likely was, he has changed
his tack: even if he was part of al Qaeda, his new petition argues, his continued detention no longer
can be justified as “a temporary wartime expedient.” Motion at 1, ECF No. 1072. Essentially,
Uthman argues, continuing to detain him in light of allegedly changed circumstances in the war
on terror may now be arbitrary in a way it might not have been in 2011, 2010, or 2004.
That is the crux of his arguments about the AUMF as well. His initial petition avers to the
AUMF only briefly, and back then he claimed that Congress’s grant of authority extended only to
the “persons” who “planned, authorized, committed, or aided the terrorist attacks on September
11, 2001,” or who “harbored such organizations or persons.” Petition at 11, ECF No. 1. Because,
he argued, he was not among them, his detention was inconsistent with the AUMF. Id. The D.C.
Circuit foreclosed that argument too in 2011, finding the evidence “more than sufficient” to show
he was probably an al Qaeda operative. Uthman, 637 F.3d at 404. So, again, he changes his tack:
even if he was part of al Qaeda, his new motion claims, his detention now “has become punitive”
in duration, and therefore violates the AUMF. Motion at 5, ECF No. 1072. Given that Uthman’s
new filing has all the elements of a new petition, the Court will simply treat it as one. Cf. Al Warfari
v. Obama, No. 09-2368 (RCL), 2015 WL 4600420, at *7 (D.D.C. July 30, 2015), vacated and
appeal dismissed as moot, No. 15-5266 (D.C. Cir. 2016) (recognizing that when a movant’s filing
has all the elements of a new petition, it may be treated as such).
That is not the end of the inquiry, though. If Uthman is filing a second habeas petition, is
his first failed petition res judicata against the second? There is disagreement among the
6 authorities on that point. Compare, e.g., Andrew Kent, Do Boumediene Rights Expire?, 161 U.
PENN. L. REV. PENNUMBRA 20, 28–32 (2012) (arguing a failed first petition might preclude the
second) with Stephen I. Vladeck, Access to Counsel, Res Judicata, and the Future of Habeas at
Guantanamo, 161 U. PENN. L. REV. PENNUMBRA 78, 82 (2012) (arguing that it would not). So
why the disagreement? At common law and well into the twentieth century, it was firmly
established that res judicata did not even apply to habeas petitions. Vladeck, supra at 82; Sanders
v. United States, 373 U.S. 1, 8 (1963) (“The inapplicability of res judicata to habeas, then, is
inherent in the very role and function of the writ.”). Courts, instead, were left to police meritless
petitions under the abuse of the writ doctrine, by which they could exercise discretion to reject
duplicative petitions. Vladeck, supra at 82. In the context of collateral attacks on criminal
convictions, Congress undoubtedly has made—and the Supreme Court upheld—some inroads
upon that principle. E.g., 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412–13 (2000).
In the conviction universe, there is now indeed “a modified res judicata rule” against successive
petitions. Felker v. Turpin, 518 U.S. 651, 664 (1996).
But the D.C. Circuit has informed us that the procedures in the conviction context are not
necessarily the same as in the detention context. Al-Bihani v. Obama, 590 F.3d 866, 876 (D.C. Cir.
2010) (“Habeas review for Guantanamo detainees need not match the procedures developed by
Congress and the courts specifically for habeas challenges to criminal convictions.”). And with
“pure executive detention,” as scholars have pointed out, a one-and-done model would not make
much sense. Steve Vladeck, Habeas, Res Judicata, and Why the New Guantanamo MOU is a Big
Deal, LAWFARE (July 17, 2012, 5:13 PM), https://www.lawfareblog.com/habeas-res-judicata-and-
why-new-guantanamo-mou-big-deal; Vladeck, supra at 84. Habeas challenges to convictions,
which contest the verdict or sentence, usually do not hinge “upon when—or how often—[they are]
7 relitigated.” Vladeck, supra at 84. With detention, though, the “same source of detention authority
may, in fact, apply differently as time goes on.” Id. The authority backing the detention might
expire, or surrounding circumstances might change such that detention is no longer warranted. On
those considerations, the Court finds that res judicata does not bar Uthman’s present, second
petition.
Nor, relatedly, does the Court think Uthman is abusing the writ. See Sanders, 373 U.S. at
11 (stating that a later petition was not an abuse so long as it “relied on a ground not previously
heard and determined.”). As was said above, Uthman’s new petition is not merely re-hashing his
claims from 2004. Instead, he is making new arguments that logically were not available earlier in
his detention. He could not have complained about nearly two decades of confinement back in
2004, when he had just been committed to Guantanamo. Nor could he have advanced the changed
circumstances argument about the war on terror and whether it is still ongoing today.
All that is to say the posture of Uthman’s petition is not “fundamentally flawed.” He’s not
barred by Rule 60(b), res judicata, abuse of the writ, or any other principle of which the Court is
aware. Instead, his petition is amenable to judicial review. And as such, the Court now turns to the
petition’s merits.
2. Is Uthman’s Continued Detention Unauthorized Under the AUMF?
As a practical matter, should the Court decide Uthman’s statutory claim first, or should it
first entertain his claims about constitutional due process? Uthman suggests the Court should
entertain his statutory claim first, because doing so—and construing the statute in Uthman’s
favor—would “avoid” the “serious constitutional issues” attending to his due process argument.
Motion at 7, ECF No. 1072 (citing Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346–47
8 (1936) (Brandeis, J., concurring)). But that depiction of avoidance is not quite right, or at least is
not the complete picture.
When lawyers talk about “constitutional avoidance,” the idea really includes two distinct
phenomena. One was laid out by Justice Brandeis in his classic concurrence in Ashwander.
Ashwander, 297 U.S. at 346–47 (Brandeis, J., concurring). There he suggested that as a matter of
judicial restraint and “governance,” courts generally should endeavor to resolve cases on non-
constitutional grounds and should entertain constitutional questions only when necessary. Id. at
346. The other notion of avoidance is a more rulized version of Justice Brandeis’s sentiment, which
has now achieved the status of a canon of interpretation. See CALEB NELSON, STATUTORY
INTERPRETATION 146–47 (2011). The “canon” of avoidance suggests that when a statute is
susceptible to two or more interpretations, the court should adopt whichever interpretation avoids
a difficult constitutional question. Id. at 147. Uthman says to interpret his detention as beyond the
AUMF to avoid considering his due process argument, apparently relying on the latter notion of
avoidance. But that canon is not helpful here. As the Court explains below, the AUMF is not
susceptible to the interpretation Uthman pushes. And the constitutional question presented by
rejecting his statutory arguments, frankly, is not that difficult. Cf. Ali, 959 F.3d at 373 (“[B]ecause
the specific constitutional claims that Ali presses have already been considered and rejected by
circuit precedent, there are no constitutional rulings to be avoided.”). The Court does intend to
heed Justice Brandeis’s original advice about the order of operations, though, and so will consider
the statutory claims before advancing to arguments about due process.
Reduced to a syllogism, Uthman’s argument about the AUMF is something like this: The
AUMF, by its terms, authorizes the executive “to use all necessary and appropriate force” against
those persons or organizations who facilitated or aided the 9/11 attacks. Motion at 4, ECF No.
9 1072; 50 U.S.C. § 1541. The United States has “substantially destroyed” al Qaeda, the “conflict”
in which Uthman was captured has wrapped up, and he is being detained as punishment, rather
than to prevent his return to the battlefield. Id. at 14, 8, 6. Therefore, his detention is no longer
“necessary and appropriate” under the AUMF, and so he must be let free. Id. at 11.
The Government counters that the conflict in which Uthman was captured remains active,
and thus his detention is not “punitive,” but a valid tool under the AUMF to keep him from taking
up arms. 1 Response at 22–30, ECF No. 1075. The Government has supplied several hundred pages
of record evidence to that effect. It points to multiple declarations from President Trump that al
Qaeda remains a threat in Afghanistan and, if anything, has only spread to new global outposts.
E.g., Remarks by President Trump on the Strategy in Afghanistan and South Asia (Aug. 21, 2017,
at 5), ECF No. 1075–8 (“[T]he security threats we face in Afghanistan and the broader region are
immense.”). The U.S. continues to kill terrorists in Afghanistan, ECF No. 1075–13, and terrorists
continue to kill Americans. ECF No. 1075–14. Then-Secretary of Defense Mattis pointed out that
the potential for transnational terrorist attacks springing from the region remains ever-present. ECF
No. 1075–10. And FBI Director Wray cautions that though al Qaeda still hungers for “spectacular
attacks” in the style of 9/11, U.S. efforts to disrupt the organization have led it to pursue the
comparatively “small-scale” killing of Americans. ECF No. 1075–22.
Uthman’s chief reaction to these exhibits is to argue that they do not show the “particular
conflict” in which he was captured drags on. Reply at 7, ECF No. 1078. He says the real fight is
against new groups that did not exist at the time of 9/11, like ISIS–K, and that to the extent al
Qaeda persists, it has spread far beyond its original strongholds in Afghanistan. Id. at 7–8. These
1 As the Government points out, Congress also endorsed “[d]etention under the law of war without trial until the end of hostilities authorized by the Authorization for the Use of Military Force” in 2012’s National Defense Authorization Act. Response at 16, ECF No. 1075; Pub. L. No. 112–81, § 1021(c)(1), 125 Stat. 1562.
10 arguments are baseless. Contrary to Uthman’s brief, the Government’s exhibits extensively
describe the continued fight against al Qaeda in Afghanistan. E.g., Remarks by President Trump
on the Strategy in Afghanistan and South Asia (Aug. 21, 2017, at 5), ECF No. 1075–8 (noting that
the U.S. maintains operations in Afghanistan to secure the goal of “crushing al Qaeda”). And why,
exactly, would al Qaeda and the original conflict in Afghanistan metastasizing across the globe be
a reason for Uthman’s release? If anything, that fact would make it easier for him to rejoin the
fight. 2
After surveying these briefs and the record evidence, the Court concludes that the
Government has easily established that the conflict in which Uthman was captured continues. That
is fatal to his claims about the AUMF. Uthman is not being “punished simply for having been part
of an enemy force.” Motion at 6, ECF No. 1072. He is being detained to prevent him from resuming
his role as a foot-soldier against the United States in a conflict still raging. His argument about the
length of his detention, then, is no argument at all. Yes, it has been long, but it has been “long
because the armed conflict out of which it arises has been long, continuing to the present day.” Ali,
959 F.3d at 370 (denying a similar petition). As the Supreme Court has stated, “Congress’ grant
of authority for the use of ‘necessary and appropriate force’ [includes] the authority to detain for
the duration of the relevant conflict.” Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004). That conflict
has been protracted and tough, no doubt. But as the Government points out, that “enemy forces
have prolonged the fighting by not laying down their arms . . . is more reason for the United States
to continue to detain [them], not less.” Response at 27, ECF No. 1075. Because Uthman’s detention
“still serves the established law-of-war purpose of preventing captured individuals from returning
2 The Court is unpersuaded by Uthman’s repeated claim that because the war on terror has changed, the “particular conflict” in which Uthman was captured has “end[ed].” Reply at 7–8, ECF No. 1078. Imagine a Wehrmacht soldier captured in 1939, when Germany’s ambitions still appeared relatively local in scope. Would it be an argument for his release in 1942 that Germany had begun operations in North Africa and had invaded deep into the Soviet Union?
11 to the field of battle and taking up arms once again,” the Court finds it congruent with the AUMF.
Ali, 959 F.3d at 370 (upholding the denial of habeas relief to a detained enemy combatant who
argued his continued detention exceeded the scope of the AUMF).
3. Does Uthman’s Detention Violate the Constitution’s Due Process Clause?
Since Uthman’s arguments about the AUMF were not sufficient to resolve this dispute, the
Court now turns to his claims about due process. Uthman argues that his detention has become
“arbitrarily divorced” from its original purpose of keeping him off the battlefield. Motion at 18,
ECF No. 1072. He charges that the Government has transformed his “erstwhile affiliation with an
enemy force” into “the mark of Cain” and functional life imprisonment. Id. And he complains that
his detention has been longer than some of the sentences received by former detainees. Id. at 19.
That is another reason he is suffering from “arbitrary imprisonment,” in his view, which he says
runs afoul of the Constitution. Id. at 15–18.
So why, exactly, does Uthman think he is covered by the due process protections of the
Fifth Amendment? He does not quite say. The closest his briefing comes to making an argument
to that effect is that the Suspension Clause applies at Guantanamo, and so the Due Process Clause
must as well. Id. at 17 (citing Boumediene v. Bush, 553 U.S. 723, 769–71 (2008)). Uthman’s theory
is that if the Suspension Clause so applies, then detainees must have some rights they can assert
through habeas, like the right against arbitrary detention, and that right, he says, must flow from
due process. Motion at 17, ECF No. 1072. So he thinks the Suspension Clause is just a mechanism
to vindicate rights secured in the Fifth Amendment. Id. But that is quite the leap. Why doesn’t the
guarantee against arbitrary detention inhere in the Great Writ itself, and why isn’t the Suspension
Clause alone sufficient to secure that guarantee? The Supreme Court, after all, “was careful not to
couch its [Boumediene] holding in terms of individual rights.” Vladeck, supra at 79.
12 That was probably because of the longstanding view that the Due Process Clause does not
apply to foreign nationals without property or presence inside the United States’s sovereign
territory. See, e.g., Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009) vacated by 559 U.S.
131 (2010) and reinstated as amended by 605 F.3d 1046 (D.C. Cir. 2010) (“Decisions of the
Supreme Court and of this court—decisions the district court did not acknowledge—hold that the
due process clause does not apply to aliens without property or presence in the sovereign territory
of the United States.”) (internal citations omitted); see also Zadvydas v. Davis, 533 U.S. 678, 693
(2001) (describing the holdings of both United States v. Verdugo-Urquidez, 494 U.S. 259, 269
(1990), and Johnson v. Eisentrager, 339 U.S. 673, 784 (1950), as establishing the proposition that
the “Fifth Amendment’s protections do not extend to aliens outside the territorial boundaries.”).
So on that received wisdom, Uthman’s due process arguments should have fallen stillborn in this
or any court in the country.
But as Uthman’s petition was pending, the D.C. Circuit appeared to breathe some life into
his due process claims. In its 2019 decision Qassim v. Trump, 927 F.3d 522, 524–25, 527–29 (D.C.
Cir. 2019), the D.C. Circuit explained that it was an incorrect reading of circuit precedent to assume
that detainees at Guantanamo are not afforded protections under due process. It then remanded the
case so the district court could work through discovery and, if necessary, reach Qassim’s due
process objections to the information he had been provided. Id. at 531–32. The Government, in its
supplemental briefing, dismisses Qassim as a “narrow holding [with] little bearing on Petitioner’s
Motion.” Response to Notice of Supp. Auth., ECF No. 1094. Uthman says the case refutes the idea
he is not entitled to levy his due process objections. Notice of Supp. Auth., ECF No. 1093. The
Court understands Qassim to mean that Uthman is no longer categorically excluded from the ambit
of due process. Qassim, 927 F.3d at 527–28.
13 The scope and content of Uthman’s due process rights might have been a tough question
absent the old lodestar of our habeas jurisprudence that detainees in his position were not entitled
to such protections. But pursuant to its new, “issue-by-issue” exposition of those rights, Ali, 959
F.3d at 369, the D.C. Circuit has most recently instructed us that whatever a detainee’s claims
under the Fifth Amendment, they surely are not of the variety Uthman asserts. In Ali v. Trump, the
D.C. Circuit considered—and rejected—due process claims virtually indistinguishable from
Uthman’s. Id. at 370–73 (decided May 15, 2020). An Algerian national, Abdul Razak Ali, there
contested the denial of his habeas petition on the grounds that his seventeen-year detention in
Guantanamo violated substantive and procedural due process. Id. at 366. He claimed his detention
was “arbitrary” and “punitive” because it had become “untethered to any ongoing, individualized
purpose to detain him.” Id. at 369–70. Substantively, he argued, his detention “shock[ed] the
conscience,” and procedurally, he said the Government would have to justify it by clear and
convincing evidence. Id. at 370, 372.
The panel squarely rejected both claims. Id. It underscored the Circuit’s “repeated[]”
holding that the Government must prove a detainee’s enemy combatant status by only a
preponderance of the evidence. Id. at 372. And it reasoned that Ali’s detention—though “long”—
was lawful. Id. at 370. That was so “because the armed conflict out of which [his detention arose]
has been long, continuing to the present day.” Id. But that the conflict continues only showed that
Ali’s detention continues to serve its “original and legitimate purpose”—keeping him off the
battlefield. Id. The panel explained that circuit precedent has long established that “detentions
[may] last for the duration of hostilities.” Id. at 372. Precisely because “this is a long war with no
end in sight,” it is necessary to detain combatants, in some cases, for a long time. Id. at 373. Ali’s
due process claims, then, were without merit. Id. at 370–73.