Al-Baidany v. Bush

Opinion

UNCLASSIFIED//FOR PUBLIC RELEASE

Filed with Classified · Jt@id!.U. IOFORU

OMAR MOHAMMED ALI AL-RAMMAH,

Petitioner, ~ No. 05-2380 (CKK)

v. ....JNBlm SEM,-

JOSEPH R. BIDEN, JR, in his official capacity as President of the United States, et al. n(_~ ~ ~~ Id.}~ (iu~Y Respondents.

CLASSlFIED MEMORANDUM OPINION (October~ 2024)

Petitioner Omar Mohammed Ali al-Rammah ("al-Rammab") 1 is a Yemeni national who

has been detained by the United States Government at Naval Station Guantanamo Bay in Cuba

since May 2003. In December 2005, he filed a petition for a writ of habeas corpus seeking release

from detention. He amended his petition in July 2006. After several delays, including some that

were beyond the control of the parties or the Court, al-Rammah 's petition is fully briefed and the

Court bas scheduled an evidentiary hearing to decide its merits. Now pending before the Court is

the Petitioner's Motion for Judgment on the Record, which the Respondents oppose. See Pet'r's

Mot. for Judgment on the Record and Prehearing Mem. ("Pet'r's Mot." or "Motion''); Resp'ts'

Response to Pet'r's Mot. for Judgment on the Record 'and Prehearing Mem. ("Resp'ts' Mem.").

Upon consideration of the parties' submissions,2 the relevant legal authority, and the entire record,

1 Tiu! Court identifies the Petitiow:r using the name that llJlPC8I1 in the caption of hill pending Motion ror Judgment on the Ra:onl. Tbe Petitioner is also identified clscwbm: in the panics' submissions by the name, Zakaria al-Baidany and F&y!81 Alawi Ali al-Rammah. See, e.g .. Pet'r '• Traverse to Rt:spa.' Scrond Am. Narrative (Aug. 8, 2022) a1 I n.1; Reaps.' ~ a l Merits Brief (Feb. 2, 2024) at I & n.2, 32. 1 The Court's consideration has focused oo the Respondents' Second Amended Narrative (filed May 24, 2019), the Petitioner's Traverse to Respondenls' Seamd Amended Nmative (filed Aug. 8, 2022), the Respondent$' Pretrial Merits Brief (filed Feb. 2, 2024), the Petilioner's Motion for Judgment on the Record and Prehearing Memorandum I

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the Court shall DENY the Motion for Judgment on the Record and proceed with the Merits Hearing

that is scheduled to begin on November 18, 2024.

I. BACKGROUND

Petitioner al-Rammah was captured in eorgia, in April

2002. After spending a y e a r ~ u r i n g which he was interrogated by officers of

United States agencies that are not identified in the public record-be was taken to Guantanamo

Bay, Cuba in May 2003. He has been held there, without charge, ever since. Respondents assert

that 111-Rammoh is lawfully detained ot Guontanomo Boy under the authority of the 2001

Authorization for Use of Military Force ("AUMF'), Pub. L. No. 107-40, l 15 Stat. 224 (2001), "as

informed by the principles of the laws of war." See Resp'ts' Second Am. Nan. ("Narr.") 1 l; see

also National Defense Authorization Act ("NOAA'') for Fiscal Year 2012, Pub. L. No. 112-81,

§ 1021, 125 Stat. 1298, 1562 (2011) (reaffinning "that the authority of the President to use all

necessary and appropriate force pursuant to the [AUMF] includes the authority for the Armed

Forces of the United States to detain covered persons ... pending disposition under the law of

war" and defining "covered persons" to include any "person who was a part of or substantially

supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the

United States or its coalition partners").

A. Events Preceding Detention

The parties dispute nearly all of the facts underlying al-Rammah's initial detention, but

they agree on two basic facts. First. they agree that al-Rammah was

Chechen fighters from early- or mid-2001 until he was captured in April 2002

(filed Feb. 2, 2024), the Petitioner's Statement of Undisputed Mab:rial Facts (filed Feb. 2, 2024), the Petitioner's Statement of Disputed Material Facts (filed Feb. 21, 2024), the Rt: pondi:nts' Response to Petitioner's Motion for JudSJIM!llt on the Record and Pn:bearins Memorandum (filed Feb. 21, 2024), and the Petitioner's Responec under Section ID(C) oflhe Case Managemi:nt Order (filed Fc:b. 21, 2024).

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by forces ofa foreign government. Resp'ts' Mem. at 49; Pet'r's Mot. at 1,

4, 6 & alt. B 'ffi 7, IO. Second, they agree that he used the name "Zakariya" while he was in the

Pankisi Gorge region. Resp'ts' Mem. at 49; Pet'r's Resp. at 15, 18.

Beyond these basic facts, the parties present fundamentally different accounts of al-

Rammah' s actions receding his capture and his role-if any-in the ongoing

military conflict between the United States and al Qaeda that the Respondents assert is the basis

for his continued detention.

AI-Rammah contends that he was in the Pankisi Gorge "to support the latest round of the

centuries-long struggle by the Chechens for independence from Russia." Pet'r's Traverse to

Resp'ts • Second Am. Narrative ("Traverse") 1 1. He insists that there was ''no connection between

al-Qaeda and the Chechen fight for independence," that he "had nothing to do with al-Qaeda," and

that he "was unaware of any al-Qaeda presence in the Pankisi Gorge." Pet 'r's Mot. at 5-6. Instead,

he says he ''ran errands and carried out tasks to support those fighting in Chechnya," Traverse ,i I,

and that "[a]ll his actions were done in furtherance of' the goal of "supporting the Chcchcns in

their fight against the Russians." Pet'r's Statement of Disputed Material Facts 1 11.

The Respondents, by contrast, cootend that al-R.ammah is the al Qaeda fighter and

80. The Respondents also aUege that al-Rammab, acting under the pseudonym

sought to

l Various olher rllins of these names appear in the m:ord, including "Zakaraie," "Zakaria." -

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September 11, 2001. Resp'ts' Mem. at 44-45; Narr. ,168-71. Finally, the Respondents allege

that al-Rammah has various other ties to al Qaeda, including that he was acquainted wit

ho ran a training camp in Afghanistan, Narr. 1 58, that he may have trained

il"191-94, and that he had contact with various other al Qaeda associates including Usama bin

Laden's youngest son, Hazma bin Laden, id. 1if 108, I IO. The Respondents "do not contend that

[al-Rammah] is detain11ble because he: suppurlc:d lhc: Cb~hc:n sepllllltists," bul insleud because:

these other activities and associations "dernons.trate that he was part of and substantially supported

[al Qaeda] and associated forces." Resp'ts' Mem. at 31.

AI-Rammah, for his part, denies that he is the person referred to as "Zakariya" or

- i n the-reports the Respondents have produced in support of his detention,

and he denies that he ever used the name - during his time in Georgia. Pet'r's

Statement of Disputed Material Facts fl 7-8, 10. He also denies that be had any role i n -

/d. 117, 9; Pet'r's Mot.

Pet'r's Statement of

Disputed Material Facts ft 7, 9; Pet'r's Mot. at 41. He contends that any training he received in

Afghanistan was solely to prepare him to fight alongside the Chechens and is not evidence of an

al Qaeda affiliation.

he denies that he ever personally knew Hazma bin Laden. Pet'r's Statement of Disputed Material

Facts, fl 5-{i.

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B. Recent Developments

Nearly two decades after al-Rammah arrived at Guantanamo Bay, the Periodic Review

Board ("PRB") concluded that al-Rammah's continued detention was "no longer necessary to

protect against a significant threat to the security of the United States.',. Pet'r's Ex. 2. In support

of that conclusion, the PRB found that "there is no information indicating that [AI-Rammah]

engaged in activities against the United States prior to detention." Id. When describing the

conditions that would be necessary for al-Ramm11h to be lransferred out of the custody of the

United State.ci. the PRB recommended just one condition: that "[a]ppropriate security assurances

are negotiated by and agreed to by relevant [United States Government} departments and

agencies." Id.

Nearly two years later, the Respondents notified the Court that "they intend[ed] to transfer"

- Respondents informed the Court that the Secretary of Defense had already notified

Congress of the intended transfers and certified to Congress that certain statutorily required

conditions for the transfers had been satisfied. Id. (citing NOAA of 2016, Pub L. No. 114-92 § 1034, 129 Stat. 726, 969-970 (2015); Intelligence Authorization Act of 2012, Pub. L. No. 112-

87 § 308, 125 Stat. 1879, 1883 (2012)).

4 Presideot Barack Obama established the PRB by executive order "to review on II periodic basis the executive branch's conlinuc:d, discretionary r:xen:ise of detention aulhority in individual cases... Executive Order 13,S67 § l(b), 76 Fed. Reg. 13.277 (Mar. 7, 2011). The PRB is tasked with delennining, in eac:h case, whether "(c]ontinued law of war d~ention" is ''necCllSlll'y to protcc:t apinat a significant threat lo the securily of the United States." Id. § 2; see also NOAA for Fiscal Vear 2012, Pub. L. No. 112-81, § 1023, 125 Stat. 1298, IS62--(i3 (2011).

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they still intend to transfer him- One year later, al-Rammah's situation is unchanged. Although Respondents assert that

he remains detained at Guantanamo Bay. Joint Status

Report (Oct 11, 2024), ECF No. 365. In their most recent filing, Respondents describe the

circumstances impeding the transfer as follows:

Res ondents continue to note that current circumstances ontinue to raise certain question that have delayed Petitioner's trans er. pon ents further note that the Government continues to woik in the context of those circumstances and e v e n t s ~ w a r d s resolving those questions so as to move forward with ~ u m s t a n ces nnil Respond.c ots also

Joint Status Report (Oct. l l, 2024), ECF No. 365.

II. ANALYSIS

Al-Ramm.ah raises three arguments for judgment on the record, but none succeed. First,

he argues that his continued detention is unlawful, regardless of the factual basis for his initial

detention, because the Periodic Review Board ("PRB") has detemuned that his "continued law of

war detention is no longer necessary to protect against a continuing significant threat to the United

States" and Respondents had made all the arrangements they deemed necessary 6

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to transfer h i m - Pet'r's Mot. at 2-3, 15-24. Second, he argues he has a right to

substantive due process and that his continued detention "years after [the] Respondents concluded

that his detention is unnecessary" and "months after they bad made all the arrangements they

considered necessary for his release" violates that right. Pet'r's Mot. at 3, 24-33. Third, he argues

that the Respondents' evidence is legally insufficient to justify his continued detention because it

consists largely of"unsourced hearsay" that is unreliable and not credibly tied to him. Pet'r's Mot.

at 3, 33-43. Because each of these arguments fails, the Court shall deny al-Rammah's Motion for

Judgment on the Record and proceed with the Merits Hearing that is scheduled to begin on

November 18, 2024.

A. The PRB determination and the preparations for t r a n s f e r ~ o not, without more, show that aJ-Rarnmah's continued d e t e ~ .

AI-Rammah's strongest argument for judgment on the record is based on the proposition

that, under the law-of-war principles that "inform" the Executive's detention authority under the

AUMF, the Executive may not continue detention that is "arbitrary" or "no longer ... necessary."

Pet'r's Mot at 16. He contends that the PRB detennination in December 2021 and aborted transfer

oth show that bis continued detention is arbitrary and unnecessary, and

he argues that his continued detention is therefore unlawful. Id. at 16.

This argument finds some support in the United States Court of Appeals for the District of

Columbia Circuit's decision io al-He/a v. Biden, 66 F.4th 217 (D.C. Cir. 2023) (en bane). In that

case, the court stated that the PRB's factual findings "could ... be relevant to a court's

consideration of whether [a petitioner's] continued detention violates the law of war and thus

potentially contravenes the statutory authority conferred by the AUMF." Id. at 244. Specifically,

because ..the 'purpose of[law of war] detention is to prevent captured individuals from returning

to the field ofbattle and taking up arms once again,"' the PRB's finding that a petitioner's transfer

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would not present a risk to national security could be relevant to the legality of continued detention.

Id. (alteration in original) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)). However, the

court acknowledged that it is "an open question" in this Circuit whether "the laws of war place any

limits on the President's detention authority under the AUMF," and it declined t.o decide "whether

the (PRB]'s [d]etennination [that a petitioner's continued detention is no longer necessary} renders

[the p]etitioner's continued detention unlawful under the AUMF." Id. (emphasis in original).

Al-Rammah's argument ultimately fails because, under binding precedent in this Circuit,

the detention under the AUMF individwds who were "pm't of' or "substantially supported" al

Qaeda is lawful for the duration of hostilities between the United States and al Qaeda, regardless

of whether the Government has shown that those individuals pose II specific threat to the interests

of the United States if released. See, e.g., AI-Alwi v. Trump, 901 F.3d 294, 299 (D.C. Cir. 2018)

('The AUMF authorizes detention for the duration of the conflict between the United States and

the Taliban and al Qaeda."). And this Court must defer to the Executive's determination that this

conflict is still ongoing, more than two decades after it began. Al-Bihani v. Obama, 590 F.3d 866,

874 (D.C. Cir. 2010) ("The determination of when hostilities have ceased is a political decision,

and [courts] defer to the Executive's opinion on the matter, at least in the absence of 11n

authoritative congressional determination purporting to terminate the war."). Accordingly,

notwithstanding the statement in al-Hela that the PRB's factual findings may be "relevant" to the

scope of the Executive's detention authority under the AUMF, 66 F.4th at 244, binding precedent

requires this Court to conclude that the detention of a person who was "part of" or "substantially

supported" al Qaeda remains lawful ''for the duration of the conflict between the United States and

the Taliban and u.l Qaeda." See AI-A.lwi, 901 F.3d at 299.

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Even asswning, without deciding, that law-or-war principles impose an outer limit on the

Executive's detention authority under the AUMF while hostilities between the United States and

al Qaeda are ongoing, the PRB's detennination that al-Rammab's continued detention is no longer

necessary doeft not negate the lawfulness of that detention. First, and most fundamentally, the

Executive Order establishing the PRB and conrerring on it the power to make determinations

regarding the necessity of continued detention "is not intended to, and does not, create any right

or benefit, substantive or procedural, enforceable at law or in equity by any party." Executive

Order 13,567 § IO(c), 76 Fed. Reg. 13,277 (Mar. 7, 201 l). Second, the PRB is tasked only with

determining whether continued detention is "necessary to protect against a continuing significant

threat to the United States," which is a different issue than whether continued detention serves the

lawful purpose of preventing a detainee from returning to the battlefield in a still-ongoing conflict.

See id. §§ 2, 3; see also Hamdi, 542 U.S. at 518 ("The purpose of [law of war] detention is to

prevent captured individuals from returning to the field of battle and taking up arms once again.").

Therefore, while the PRB's detenninalion and the subsequent preparations for al-Rammah's

transfer may be relevant to this Court's assessment of the legality of al-Rammah's continued

detention under the AUMF, they are not dispositive, and they do not entitle him to judgment on

the record.

8. Al-Rammah has not shown that his continued detention violates substantive due process.

AI-Rammah next argues that bis continued detention violates substantive due process, but

for similar reasons, this argwnent also fails. Whether detainees like al-Rammah are entitled to any

of the protections of the Due Process Clause remains an open question in this Circuit. See al-Helo,

66 F.4th at 225--26. Therefore, the Court begins by assuming, without deciding, that al-Rammah

is entitled to the substantive protections of that Clause. See td. at 242 (adopting same analytical

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approach). Proceeding under that assumption, the Court concludes that the Petitioner's conlinued

detention does not violate substantive due process.

Government conduct violates substantive due process when it '"shocks the conscience' or

interferes with rights 'implicit in the concept of ordered liberty."' United States v. Salerno, 481

U.S. 739, 746 (1987) (citation omitted) (first quoting Rochin v. California, 342 U.S. 165, 172

(1952); and then quoting Pal/co v. Connecticut, 302 U.S. 319, 325-26 (1937)). The "threshold

question" in a substantive due process challenge to action by the Executive is whether the action

at isaue "is so egregious, so outrageous, that it nmy fairly be said to shock the contemporary

conscience." Cnty. ofSacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).

On the present record, al-Rammah has not shown that his continued detention "shock[s]

the contemporary conscience." See id. Although al-Rammah has been detained for more than two

decades, binding precedent holds that the "lengthy duration" of the conflict between the United

States and al Qaeda. without more, does not make detention for the duration of that conflict a

violation of substantive due process. Al-He/a, 66 F.4th at 245. And because al-Rammah's

continued detention is at least arguably consistent with the AUMF and the lawful purpose of

preventing him from rejoining a still-ongoing conflict, neither the PRB's discretionary

determination that his continued detention is no longer necessary nor the aborted transfer attempt

render his detention arbitrary or conscience-shocking.

Because the undisputed facts do not establish that al-Rammah's continued detention

violates any rights he may have arising from the substantive component of the Due Process Clause,

the Court shall not grant judgment on the record on the basis of those asserted rights.

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C. The Respondents' evidence may be sufficient to show, by • preponderance of the evidence, that al-Rammah was "part of" or ..substantially supported" al Qaeda or associated forces. Finally, al-Rammah argues that the Respondents' evidence is unreliable and legally

insufficient to support his continued detention. Because the reliability of the evidence is best

assessed in the context of a Merits Hearing, the Court shall not grant judgment on the record based

on these arguments.

At a Merits Hearing, "the [G]ovemmeot bears the burden of proving by a preponderance

of the evidence that the petitioner is an enemy combatant and lawfully detained." Al-He/a, 66

F.4th at 233 (citing Case Management Order §§ II.A, III.B). The D.C. Circuit bas held, en bane,

that the preponderance standard is consistent with the requirements of the Due Process Clause in part because "it is appropriate" for a detainee who is "a foreign national detained as an enemy

combatant and 5Wipected of substantially supporting designated terrorist organizations" to "share

the risk of error nearly equally with U.S. society." Id. at 236.

Here, the Respondents seek to meet their burden in large part through reliance on so-called

"raw" intelligence reports, which are timely accounts of intelligence officers' observations in the

field that are circulated within the Intelligence Community but have not been distilled into

"finished" intelligence products by analysts with access to related intelligence

Resp'ts' Mem. at 23. For example, the Respondents rely in part on inteUigence reports

describe the circumstances of his capture and summarize intelligence officers' impressions of his

respomes to early questioning. See, e.g., Resp'ts' Exs. 69, 77, 79. They also rely in part on

contemporaneous intelligence reports that describe alleged activities of the facilitator known as

"Zakariya" a n d - whom they contend is al-Rammah, which they argue show that the

Petitioner participated in and provided substantial support to al Qaeda II

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. See, e.g., Resp'ts' Exs. 64, 66-67, 87-88. And they rely on intelligence reports

Exs. 33, 69, 154, 175,210.

Al-Rammah argues that many of these reports are unreliable hearsay that do not satisfy the

minimum standards for admissi~ility in this proceeding. Pet'r's Mot. at 33-39. He urges the Court

not to consider them when detennining whether his continued detention is lawful, and then to

conclude that the remaining evidence is insufficient to support his detention. Id. at 33-44. For

three reasons, the Court shall not exclude any of the reports now, but instead shall consider al-

Rarnmah's arguments about their reliability when determining what weight to afford the evidence

in the context of die Merits Hearing.

First, the D.C. Circuit bas approved of reliance on "raw" intelligence reports in proceedings

like this one, instructing that "the factfinder must evaluate the raw evidence, finding it to be

sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition

with lhe requisite degree of certainty," rather than relying solely on reports in which the identity

and reliability of sources might be more obscured. Parhat v. Gate:,•, 532 F.Jd 834, 847 (D.C. Cir.

2008) (quoting Concrete Pipe & Prods., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 622

(1993)); see also Barhoumi v. Obama, 609 F.3d 416, 428 (D.C. Cir. 2010) (noting that "Parhat

sets the guideposts for [courts'] inquiry into the reliability of ... hearsay" in habeas proceedings

like this one).

Second, hearsay statements are "always admissible" in Guantanamo Bay habeas

proceedings, Al-Bihani v. Obama, 590 F.3d 866, 879 (D.C. Cir. 2010), subject to "rigorous

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evidentiary analysis" to test the reliability of the statements, al-He/a, 66 F.4th at 238. "Therefore,

the question a habeas court must ask when presented with hearsay is not whether it is

admissible ... but what probative weight to ascribe to whatever indicia of reliability it exhibits."

Al-Bihani, S09 F.3d at 879. In al-Hela v. Biden, the en bane D.C. Circuit recently elaborated on

the kind of analysis it expects courts to perfonn when assessing reliability and ascribing weight to

evidence in this context. See 66 F.4th at 238. In that case, the court affinned Judge Royce C.

Lamberth's reliance on multiple hearsay statements, noting that Judge Lamberth had "carefully

evaluated all the evidence proffered by the [G ]ovemment," "assessed the reliability of all hearsay,"

"excluded or refused to rely upon some of the hearsay statements proffered by the

[G)overnment ... [that) were unreliable or insufficiently corroborated," "made multiple reliability

fmdings throughout its opinion," "explained its reasoning" for finding some hearsay statements

more reliable than others, and "meticulously reviewed all the evidence proffered by the

[G]ovemment to compare and contrast the various hearsay statements and determine which

statements were corroborated and reliable." Id. This "careful and discerning review of the

documents containing hearsay" satisfied the requirements of due process. Id. This Court shall

apply a similarly rigorous analysis to the parties' proffered hearsay evidence in the context of the

merits hearing, and it therefore declines to conclude at this stage that any individual piece of the

Respondents' evidence is entirely unreliable.

finally, in these proceedings, "a rebultable presumption of regularity applies to official

government records, including intelligence reports." Latif v. Obama, 611 F.3d 1175, 1185 (D.C.

Cir. 2011) (decided Oct. 14, 20ll; reissued Apr. 27, 2012). "[T]be presumption of regularity, if

not rebutted, only permits a court to conclude that the statements in a government record were

actually made; it says nothing about whether those statements are true." Id. It amounts to a

l3

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preswnplion that "the government official accurately identified the source and accurately

summarized his statement, but it implies nothing about the truth of the underlying non-government

source's statement" Id. at 1180. A petitioner may rebut this presumption by "demonstrat[ing]

internal inconsistencies or inconsistencies with other evidence." Al-He/a, 66 F.4th at 237 (citing

id. at 1185-86).

Applying these principles, the Court declines to exclude from its consideration the "raw"

intelligence reports or any other individual piece of evidence on which the Respondents rely.

Instead, mindful of the Court's duty to "consider all the evidence in context," the Court shall

determine in the context of the parties' presentations at the Merits Hearing what weight, if any,

should be afforded to each of the challenged reports and exhibits in light of the entire record and

the relevant legal authority. See Latif. 611 F.3d at 1193: see also Al Rabiah v. United States, 658

F. Supp. 2d 11, 17 (D.D.C. 2009) (CKK) (explaining that the Court would "make [reliability]

determinations in lhe context of the evidence and arguments presented during the Merits

Hearing"); Al Odah v. United States, 648 F. Supp. 2d 1, 5 (D.D.C. 2009) (CKK) (same), ajf'd 611

F.Jd 8 (D.C. Cir.2010). And because the Respondents' evidence, if credited, may be sufficient to

show by a preponderance of the evidence that al-Rammah was "'part of' or "substantially

supported" al Qaeda or associated forces, the Court shall not grant judgment on the record on the

basis that the Respondents' evidence is insufficient to support al-Rammah's continued detention.

IV. CONCLUSION

For the foregoing reasons, the Court shall DENY Petitioner al-Rammah's Motion for

Judgment on the Pleadings. An appropriate Order accompanies this Classified Memol1llldum

Opinion.

Dated: October~ 2024 co~o1:f&..ko~ United States District Judge 14