The opinion of the court was delivered by: James Robertson United States District Judge
Abu Bakker Qassim and A'del Abdu Al-Hakim are Muslim Uighurs, natives of China's western semi-autonomous Xinjiang province. They were captured by Pakistani security forces in late 2001 or early 2002, delivered into U.S. custody, and held in Afghanistan for approximately six months. In June 2002 they were transferred to the naval base at Guantanamo Bay, Cuba, where they were detained as "enemy combatants," and where they remain to this day, even though as much as nine months ago*fn1 a Combatant Status Review Tribunal (CSRT) determined that "they should no longer be classified as enemy combatants." Resp't Mem. in Opp'n to Mot. to Vacate Stay Order at 4, n.5.
Qassim and Al-Hakim petitioned for a writ of habeas corpus on March 10, 2005. The government (which knew about the CSRT determination but advised nobody) moved for a stay of proceedings pending the Court of Appeals' decision in the consolidated appeals of Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), and In re Guantanamo Detainee Cases, 355 F. Supp. 2d. 443 (D.D.C. 2005). Petitioners (whose counsel were ignorant of the CSRT determination) moved for a preliminary injunction. On April 13, 2005, I (also ignorant of the CSRT determination) denied the motion for preliminary injunction and granted a stay of all proceedings concerning these petitioners, including "their release, repatriation, or rendition."*fn2
In the midst of this motions practice, counsel for petitioners twice sought information from the government about proceedings before the CSRT, see Manning Decl., Exs. G-H. The government did not respond.*fn3 It was only in mid-July, when petitioners' counsel traveled to Guantanamo Bay to meet their clients for the first time, that counsel were informed by their clients that the CSRT had found them not to be enemy combatants. After this information was confirmed by a JAG officer stationed at Guantanamo Bay, Willett Decl. ¶ 15, counsel filed an emergency motion to vacate the stay order and for their clients' immediate release. The government opposed, and a hearing was held on August 1, 2005.
The status of "enemy combatant" has been, until now, the only handhold for the government's claim of executive authority to hold detainees at Guantanamo. It is the only rationale approved by the Supreme Court, see Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2639-40 (2004). Now that these petitioners are classified as "no longer enemy combatants" (NLECs), the government has had to articulate a new reason for continuing to hold them. That reason, asserted at the August 1 hearing, again in the government's post-hearing memorandum, and yet again in open court on December 12, 2005, is "the Executive's necessary power to wind up wartime detentions in an orderly fashion." Resp't Supplemental Mem. at 12.
On August 19, 2005, I issued a memorandum order stating, "It is not necessary to decide whether such a 'wind up' power really exists..., because the parties agree that Qassim and AlHakim should be and will be released." In light of this agreement, and the government's assurance that diplomatic efforts were being made to find a country that would accept the petitioners, I withheld decision on the motion to vacate.
Four months have passed since that order, and four years have passed since the petitioners were locked up. At the December 12 hearing the government asserted that progress is being made on the diplomatic front but declined to elaborate except in camera. I declined to receive secret information on that subject---information that could have been offered only to coopt the court and seek further delay. Petitioners now urge that action be taken promptly---immediately, in fact, because petitioners fear that Congress is about to enact legislation that will strip the federal courts of habeas jurisdiction over Guantanamo detainees. I announced on December 12 that I would rule within two weeks, so that, whichever way the ruling went, the case might at least be put into an appealable posture.
The case presents two fundamental questions: Does the government have "wind up" authority indefinitely to detain nonU.S. citizens at Guantanamo Bay, if they are not enemy combatants? If not, does a district court have the authority to fashion an effective remedy for the illegal detention?
Legality of Petitioner's Indefinite Detention
The government claims that it has authority for petitioners' continued detention because the Executive has the "necessary power to wind up wartime detentions in an orderly fashion." Resp't Supplemental Mem. at 12. A major premise of that claim, of course, is that petitioners' detention was lawful in the first place. Hamdi did confirm the proposition that the Executive has power to wage war and detain suspected enemy combatants, that is, persons alleged to be "'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." 542 U.S. at 516 (quoting the government's proffered definition of enemy combatant), but the government has not stated that these petitioners were ever suspected of having engaged in armed conflict against the United States. What we know of them is only that they were captured as they fled towards Pakistan after the inception of coalition bombing. See Hood Decl. ¶ 2. The government's use of the Kafkaesque term "no longer enemy combatants" deliberately begs the question of whether these petitioners ever were enemy combatants.
The support the government offers for its assertion of "wind up" authority is unpersuasive and, in my view, actually cuts against the government's position. As the Supreme Court noted in Hamdi, the authority to detain in wartime is grounded in the need to prevent captured individuals from returning to the field of battle. 542 U.S. at 518-21; see also Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red Cross 571, 572 (2002) ("[C]aptivity in war is 'neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war'") (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int'l L. 172, 229 (1947)). Because of this limited purpose, the laws of war require that detention last no longer than the active hostilities. Hamdi, 542 U.S. at 521 (citing Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949,  6 U.S.T. 3316, 3406, T.I.A.S. No. 3364 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities")). Nothing in this record establishes that the government has or could reasonably have a concern that these petitioners would return to the battlefield if released.
Even if petitioners' initial detention was lawful, however, and even assuming that some reasonable wind up period of detention was allowable, their continued detention for nine months after the CSRT found them to be NLEC's far exceeds the presumptive limit of six months the Supreme Court applied in the analogous context of removable and excludable aliens detained under immigration statutes. See Zadvydas v. Davis, 533 U.S. 678 (2001) (presumptive limit to reasonable duration of post-removal-period detention under INA for removable alien is six months); Clark v. Martinez, 543 U.S. 371 (2005) (six-month presumptive limit to detention applies to inadmissible aliens). The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful.
Availability of an Effective Remedy
Ordinarily, a district judge reviewing a habeas petition does not need to proceed very far beyond determining that the detention is unlawful before ordering petitioner's release. The ordinary case, however, does not involve (I) aliens (ii) held outside the geographic territory of the United States (though not outside its "complete jurisdiction and control," see Rasul v. Bush, 542 US 466 (2004)) (iii) in a camp inside a secure military facility. The habeas statute requires a court after determining the facts to "dispose of the matter as law and justice require," 28 U.S.C. ...