Guantanamo Bay detainee Moath Hamza Ahmed al-Alwi’s protracted legal battle has filled the pages of Lawfare for quite some time—see here, here, here, and here—and for good reason: Al-Alwi’s case presents delicate legal questions that touch on myriad themes in national security. Al-Alwi has recently taken the next step in challenging the government for his freedom—asking the D.C. Circuit to review the D.C. District Court’s dismissal of his petition for a writ of habeas corpus. In yet another interesting twist, however, al-Alwi asked the appeals court to review it en banc before a hearing in front of a panel; this petition was subsequently denied. Al-Alwi’s case—including this maneuver, the factual background and procedural history—are worth reviewing.

Factual Background

Moath Hamza Ahmed al-Alwi is a Yemeni citizen who was captured in Pakistan in late 2001 and delivered into U.S. military custody. According to his petition, on Jan. 16, 2002, al-Alwi “was rendered to Guantánamo Bay, Cuba, where he remains. . . . No charges have been or are contemplated to be filed against him.” As the Justice Department’s brief states, the D.C. Circuit found Al-Alwi to have “received military-style training and weapons from the Taliban, served on multiple Afghan fronts in a Taliban combat unit commanded by a high-level Al Qaeda leader, and remained with his unit after September 11, 2001.” Al-Alwi’s status as a combatant is periodically reviewed—as are all combatant’s statuses, pursuant to President Barack Obama’s 2011 Executive Order 13567—to ensure he remains detained lawfully. Al-Alwi’s latest determination was in 2016; according to the government’s brief, “the United States determined that his continued detention remains necessary to protect against a significant threat to U.S. national security, for ‘his continued and recent extremist statements’ (among other indicia) show that he would be ‘susceptib[le] to recruitment’ by enemy forces if released.”

Procedural Background

Sarah Grant chronicled al-Alwi’s history seeking release in federal court:

Al-Alwi previously filed a habeas petition in 2005, which Judge [Richard] Leon took up following the 2008 Supreme Court decision in Boumediene v. Bush, allowing Guantánamo detainees to challenge the legality of their detention. After an evidentiary hearing, Judge Leon denied the petition, finding that the government had established by a preponderance of the evidence that al-Alwi was properly classified as an enemy combatant because he was “part of or supporting Taliban or al Qaeda forces both prior to and after the initiation of U.S. hostilities” in Afghanistan. The D.C. Circuit affirmed in 2011, and the Supreme Court denied cert. (See previous Lawfare coverage here, here, and here.) Al-Alwi filed a second habeas petition, the one currently at issue, in May 2015, challenging his continuing detention on the grounds that the original conflict in Afghanistan covered by the AUMF has ceased, and along with it the authority of the United States to detain him. He also argues, in the alternative, that the length of his detention cannot be reconciled with traditional law of war principles, as read into the AUMF by the Supreme Court in Hamdi v. Rumsfeld and reinforced by Congress in the National Defense Authorization Act of 2012. The government filed a motion to dismiss in October 2015, and then the case stalled for a year. Mr. al-Alwi filed a petition for mandamus with the D.C. Circuit in late 2016 to compel action on his habeas petition, prompting the District Court to schedule and hold a hearing on December 20, 2016.

District Court Ruling

On Feb. 21, 2017, Judge Richard Leon denied this most recent habeas petition. His memorandum opinion affirmed the legality of al-Alwi’s continued detention.

Quoting Al-Bihani v. Obama, Leon wrote that the “determination of when hostilities have ceased is a political decision.” Therefore, the judiciary should “defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” The court found that:

“[T]he record establishes that the President and his national security officials believe and have clearly stated that active hostilities remain ongoing in Afghanistan”; “With respect to the legislative branch, Congress passed the AUMF in 2001, which gave the President the authority to use ‘necessary and appropriate force’ in Afghanistan, which remains in effect today [and] indicate that Congress believes that active hostilities are ongoing”; and “In addition to showing that the political branches are in agreement about the presence of ongoing hostilities, the government has provided overwhelming evidence that active hostilities are in fact ongoing, with thousands of U.S. service members engaged in a combination of support and active counterterrorism operations against the Taliban, al Qaeda, and associated forces.”

As Sarah wrote, “Judge Leon was not persuaded that the protracted nature of the conflict in Afghanistan is legally significant. As long as hostilities that are determined by the political branches continue, al-Alwi’s detention as an enemy combatant is legitimate.”

Al-Alwi’s Appeal

Al-Alwi’s brief asks the D.C. Circuit to consider three issues:

Whether the statutory authority of the United States to detain Mr. al-Alwi has unraveled because the practical circumstance of the conflict in Afghanistan are too unlike those that informed the development of the law of war and, if not, whether continued and potentially lifelong detention violated the Constitution. Alternatively, whether the authority of the United States to detain Mr. al-Alwi has expired because the conflict in which he was captured more than fifteen years ago has ended. Whether the Constitution requires heightened procedural protections to ensure the continued legality of indefinite detention that has exceeded fifteen years and has no end in sight.

Al-Alwi’s appeal begins with a factual recap of his detention. Thereafter, it cites government sources to argue that despite the legalese, there are no ongoing hostilities. Specifically, the brief points to the 2013 Memorandum of Understanding between the United States and Afghanistan; President Obama’s 2014 declarations about ending “combat operations” and bringing the war “to a responsible conclusion”; and the Bilateral Security Agreement signed in September 2014 that governs “the terms of the United States’ military presence in Afghanistan beyond 2014,” which outright bars the United States from conducting combat operations or unilateral counterterrorism operations in Afghanistan. In light of these data points, al-Alwi asserts that hostilities have essentially concluded.

If true, al-Alwi’s brief states, the D.C. Circuit is empowered to act in one of two ways: It could command the government to charge or release him (including doing so while avoiding the constitutional question by resting on statutory grounds), or it could mandate heightened procedural safeguards if a detainee realistically faces indefinite detention, including applying greater scrutiny to hearsay evidence and mandating the government meet a higher burden. Otherwise, al-Alwi argues, if the district court made a finding of fact, the appeals court can vacate the judgment and remand the case for further proceedings such that al-Alwi can get further discovery and rebut the government’s facts.

En Banc Petition

There is yet another wrinkle to al-Alwi’s appeal: initial en banc review. On the same day the U.S. filed its brief, al-Alwi petitioned the circuit court to grant an initial hearing en banc, meaning it would bypass the panel review stage. (As stated earlier, this petition has since been denied.) Because a panel would consider itself bound by all D.C. Circuit precedent, only a hearing en banc would be able to speak decisively.

Al-Alwi admits that “[i]nitial en banc review is rare, but,” he claims, “this is the unusual case where it is justified” for three reasons: the “exceptional ‘practical circumstances’” of the conflict, the circuit’s precedential framework and the need to clarify the Circuit’s holding in Al-Bihani that “suggested that international law is not pertinent to the executive’s authority to detain during wartime.”

The majority of the petition focuses on the framework and the outsized role of the D.C. Circuit Court specifically:

Since it decided Boumediene, the Supreme Court has repeatedly declined to accept cases addressing the detention standard and procedural framework applicable to the adjudication of habeas petitions brought by AUMF detainees at Guantánamo. Because all such cases are funneled into this Circuit, this Court therefore has an outsized role in developing domestic standards for military detention under the AUMF. As a result, most modern domestic law on this topic comes from panel decisions of this Court. (Citations omitted).

The precedent, al-Alwi asserts, has “lead to shocking results when applied to present circumstances.” Moreover, relying on that same panel precedent would be incorrect because of the dramatically changed circumstances, namely the United States’ position vis-à-vis Afghanistan, according to al-Alwi.

Notwithstanding these arguments, the D.C. Circuit court quickly denied this motion via a per curiam order. The order notes that no member of the panel so much as requested a vote on the motion.

The Government’s Response

Detention Is Legal Due To De Jure and De Facto Hostilities

The government argues that al-Alwi’s detention is legal because, citing Hamdi v. Rumsfeld, “‘Congress’ grant of authority for the use of ‘necessary and appropriate force’ in the AUMF ‘include[s] the authority to detain for the duration of the relevant conflict.’” The government then reviews multiple instances in which Congress has continued to ratify hostilities, including the National Defense Authorization Act, as well as instances in which Presidents Obama and Trump have stated that the conflicts are ongoing (the latter of which are to be afforded “wide deference” by the judiciary). Additionally, the U.S. argues, whether a conflict exists is a political question beyond the judiciary’s justiciable reach. In the alternative, the government asserts that hostilities are, in fact, ongoing, pointing to statements from those in theater detailing myriad harrowing attacks perpetrated recently in Afghanistan as well as Defense Department report shows hostilities indeed persist.

The government then takes on al-Alwi’s request for increased scrutiny and review of his combatant status. The government directly refutes al-Alwi’s suggestion that the appeals court should impose stricter scrutiny on the combatant reviews.

Nothing in [Hamdi] suggests that a court should do more to confirm that the Executive Branch’s views on the status of hostilities are not implausible, much less that a court should allow captured enemy fighters to conduct discovery into the nature of ongoing military operations against the groups to which they belong.

What’s more, the government states, the “other cases that Al-Alwi and his amici cite also fail to advance his argument.” The government’s brief then goes through each case al-Alwi relies on and attempts to distinguish it or blunt its impact.

In sum, the government argues that the appeals court ought to affirm al-Alwi’s detention as a wartime detainee.

The Government’s Authority To Detain Has Not “Unraveled”

The government directly refutes al-Alwi’s “claim that ‘practical circumstances’ have made law-of-war principles inapplicable to the conflict in Afghanistan.” Instead, the U.S. argues that because the “practical circumstances” that the Supreme Court found in Hamdi remain, Hamdi’s conferral of detention authority still applies. The U.S. also cites Boumediene v. Bush for the proposition that, despite the Supreme Court’s observation that the war was, by 2008, “already among the longest wars in American history,” it refrained from imposing a time limit. What’s more, the government argues, granting al-Alwi’s requests would “transform law-of-war detention [by] effectively rewarding the enemy for stretching the ongoing conflict to historic lengths by persistently continuing its attacks.” However, that is not the appeals court’s job, says the government brief.

Finally, the government disputes al-Alwi’s assertion that his detention violates due process. In the government’s view, al-Alwi did not identify what aspect of his detention would be a constitutional violation. More broadly, however,

[h]e does not explain what standard a court should adopt in setting time limits on detention that would go beyond the well-established rule that detention may last for the duration of active hostilities. He offers no support for the proposition that the Due Process Clause requires a court to inquire into the evidence about other former detainees, as well as the evidence about him, to justify his continued detention. And the discretionary decision whether to release a detainee rests on a complex constellation of factors that are not within the sphere of judicial competence, including commitments by foreign nations to monitor former detainees and take other appropriate security measures that are negotiated through diplomatic processes.

Subsequently, the government acknowledges that it “has no interest in holding any detainee longer than necessary.” The brief then details both the government’s general procedures to ensure it only holds detainees as long as needed as well as how al-Alwi has gone through these procedures.

Heightened Procedural Requirements Were Foreclosed

Lastly, the government attacks al-Alwi’s contention that the court ought to review his case with a heightened scrutiny for two reasons. “First, he forfeited this argument by failing to raise it before the district court ... Second, this argument is foreclosed by clear Circuit precedent, which a panel of this Court may not overrule.” Resting on the D.C. Circuit’s previous holdings in Al-Bihani, and Al-Odah v. United States (both of which interpreted Hamdi), the government states both that the current standard a detainee must meet is correct and it cannot be changed. Moreover, the government distinguishes al-Alwi’s analogies to standards placed on those placed in civil confinement because, as the circuit panel wrote in Al-Bihani, “courts are neither bound by the procedural limits created for other detention contexts nor obliged to use them as baselines from which any departures must be justified.”

Amici Enter

In addition to the parties’ briefs, since Sarah’s recap we’ve now seen amici file a brief, doing so in support of an initial hearing en banc. Though the petition was denied, it is still worth reviewing the arguments asserted by the brief.

Oona Hathaway co-authored an amicus brief on behalf of “experts on international law and foreign relations law.” (Hathaway and Steve Vladeck are signatories.) The brief asserts that:

[The district] court below improperly followed dicta in Al-Bihani v. Obama when it deferred to the “Executive’s opinion” as to whether the Executive continues to have legal detention authority under the 2001 Authorization for the Use of Military Force (AUMF). The Al-Bihani panel on which the court below relied rejected Al-Bihani’s argument that continuing detention authority under the AUMF should not simply turn on the Executive’s opinion that the conflict continues, but should instead be understood in light of international law.

Specifically, the brief looks to the D.C. Circuit’s denial to hear Al-Bihani en banc, written by then-Chief Judge David Sentelle and joined by six others on the court:

We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.

However, the amici argue, Hamdi does not state that the AUMF explicitly grants the president the authority to detain individuals. Instead, “six Justices held that the President’s authority under the AUMF must be interpreted in light of the international law of war.” Amici therefore seek to apply international law, which “treats the continued existence of active hostilities as a factual question.”

But unlike the case in Al-Bihani, the issue is dispositive in al-Alwi’s continued detention, say the amici. Therefore, while the court’s reasoning to deny rehearing may have made sense in Al-Bihani, it doesn’t here: indeed, the appeals court should hear the case en banc to clarify the role of international law on al-Alwi’s continued detention. Having done so, amici argue, “the en banc panel should remand to the district court to engage in a fact-based assessment of whether the hostilities in which Appellant was first detained in 2001 continue today, over 15 years later.