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Khalid v. Bush

January 19, 2005

RIDOUANE KHALID, PETITIONER,
v.
GEORGE WALKER BUSH, ET AL., RESPONDENTS
LAKHDAR BOUMEDIENE, ET AL., PETITIONERS,
v.
GEORGE WALKER BUSH, ET AL., RESPONDENTS



The opinion of the court was delivered by: Leon, District Judge.

MEMORANDUM OPINION AND ORDER

Petitioners are seven foreign nationals who were seized by United States forces and have been detained at the United States naval base at Guantanamo Bay, Cuba ("Guantanamo") pursuant to military orders arising out of the ongoing war against terror initiated in the aftermath of September 11, 2001 ("9/11"). Based on the Supreme Court's decision in Rasul v. Bush, --- U.S. ----, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), each detainee has filed a petition for a writ of habeas corpus with this Court seeking to challenge the lawfulness of his continued detention. Each petitioner claims, in essence, that he is being held in violation of the United States Constitution, certain federal laws and United States treaties, and certain international laws. In stark contrast, the respondents ("United States") have moved to dismiss these petitions claiming, in essence, that there is no viable legal theory by which this Court could issue such a writ because: (1) non-resident aliens detained under these circumstances have no rights under the Constitution; (2) no existing federal law renders their custody unlawful; (3) no legally binding treaty is applicable; and (4) international law is not binding under these circumstances.

Thus, these cases pose the novel issue of whether there is any viable legal theory under which a federal court could issue a writ of habeas corpus challenging the legality of the detention of non-resident aliens captured abroad and detained outside the territorial sovereignty of the United States, pursuant to lawful military orders, during a Congressionally authorized conflict.

After due consideration of the respondents' Motion, the petitioners' individual and joint oppositions, oral arguments and various supplemental briefs, the Court, for the following reasons, concludes that no viable legal theory exists by which it could issue a writ of habeas corpus under these circumstances. Accordingly, the Court GRANTS the respondents' Motion to Dismiss or for Judgment as a Matter of Law, and, therefore, will not issue the writs of habeas corpus.

I. BACKGROUND*fn1

On 9/11, members of the al Qaeda terrorist network orchestrated the most devastating terrorist attack in the history of the United States when they hijacked and plunged three commercial airliners into the World Trade Center, the Pentagon, and an open field in rural Pennsylvania. Approximately 3,000 innocent civilians were killed that day and the United States economy was severely damaged.

In response, Congress overwhelmingly passed a joint resolution authorizing the President to:

[U]se all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the 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.

Authorization for Use of Military Force, Pub.L. 107-40, §§ 1-2, 115 Stat. 224 (Sept. 18, 2001) (hereinafter "AUMF"). Capturing and detaining enemy combatants, however, was not specifically referenced as a necessary and appropriate use of force therein.

The events of 9/11 and the passage of the AUMF was followed by immediate Executive action. First, the President sent United States Armed Forces into Afghanistan to commence a military campaign against al Qaeda and the Taliban regime that supported it. Soon thereafter, on November 13, 2001, the President issued an Order on Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, November 13, 2001, 66 Fed.Reg. 57,833 (2000) (hereinafter "Detention Order").

The Detention Order authorizes the Secretary of Defense, Donald Rumsfeld, to detain anyone that the President has "reason to believe":

(i) is or was a member of the organization known as al Qaeda;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threatened to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii)[.]

Pursuant to this order, the United States has targeted and captured, to-date, a large number of foreign nationals both on and off the battlefields of Afghanistan and transported them for detention to Guantanamo Bay, Cuba. In addition, the military has determined that many of these individuals should be detained for the duration of the conflict as "enemy combatants."*fn2 At present, the Department of Defense ("DoD") is holding nearly 550 of these foreign nationals at Guantanamo, although recent media reports indicate that the DoD intends to release or transfer hundreds in the near future.

Seven of these foreign nationals are the petitioners in this case.*fn3 None are United States citizens or have any connection to the United States, other than their current status as detainees at a U.S. military base.*fn4 To the contrary, the petitioners are non-resident aliens captured outside of Afghanistan. They include five Algerian-Bosnian citizens (Lakhdar Boumediene, Mohammed Nechle, Hadj Boudella, Belkacem Bensayah, and Mustafa Ait Idir), see FAP ¶¶ 5-13; one Algerian citizen with permanent Bosnian residency (Saber Lahmar), id. ¶ 15; and one French citizen (Ridouane Khalid), see Khalid Pet. ¶ 2. All, with the exception of Khalid, were captured in Bosnia around October 2001. See FAP ¶¶ 24, 28, 30-33, & 35. Khalid was seized in Pakistan sometime during the early fall of 2001. See Khalid Pet. ¶¶ 32, 45. In January 2001, shortly after they were captured and transferred to United States military authorities, the petitioners were transported to Guantanamo, where they currently remain. See FAP ¶ 46; Khalid Pet. ¶ 46.

In the wake of the Supreme Court's ruling in Rasul, petitioners filed writs of habeas corpus on their own behalf and through certain relatives as their "next friend" (collectively, petitioners and their relatives are referred to herein as "petitioners"). Both petitions raise nearly identical claims, in that they challenge the legality of their detention and the conditions of their confinement under the Constitution, certain federal statutes and regulations,*fn5 and international law.

In particular, the petitions challenge the President's authority to issue the November 13, 2001 Detention Order, see FAP ¶ 58; Khalid Pet. ¶ 77; see also Petitioners' Joint Supplemental Opposition Brief ("Pets. Joint Supp. Opp."), pp. 5-12, and, even if legal, they claim it is unconstitutional as applied to them because they have been or are being denied their constitutional rights, see FAP ¶ 50; Khalid Pet. ¶ 55. Finally, even if those rights are not being violated, they claim their continued detention violates certain federal statutes and international law. See FAP ¶¶ 51-56; Khalid Pet. ¶¶ 57-75, 80- 81. In the final analysis, the petitioners are asking this Court to do something no federal court has done before: evaluate the legality of the Executive's capture and detention of non-resident aliens, outside of the United States, during a time of armed conflict.

II. STANDARD OF REVIEW

The dispositive motion now before the Court is the respondents' Motion to Dismiss or for Judgment as a Matter of Law ("Motion to Dismiss"). See Respondents' Response to Petitions for Writ of Habeas Corpus and Motion to Dismiss or for Judgment as a Matter of Law.*fn6 The Court will only grant dismissal if "it appears beyond doubt that [petitioners] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). The Court must accept the well-pleaded facts as they appear in the writ of habeas corpus petition and extend the petitioners every reasonable inference in their favor. See Doe v. U.S. Dept. of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985); Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir.1997). While the Court construes the petitions liberally in favor of the petitioners, see Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979), it "need not accept the inferences drawn by [the petitioners] if such inferences are unsupported by the facts set out in the [petitions]." See Kowal, 16 F.3d at 1276. Nor is the Court required to accept any legal conclusions incorporated in the factual allegations set forth by the petitioners. Warren v. ...


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