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Odah v. Bush

January 6, 2009

KHALED A.F. AL ODAH, ET AL., PETITIONERS,
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL., RESPONDENTS.
IN RE: GUANTANAMO BAY DETAINEE LITIGATION



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Fouad Mahmoud Al Rabiah ("Al Rabiah") and Fayiz Mohammed Ahmen Al Kandari ("Al Kandari") (collectively, "Petitioners") are two of the detainees who are currently held by the United States Government at Guantanamo Bay, Cuba, as unlawful enemy combatants. Petitioners have filed habeas petitions which are currently pending before this Court. In October 2008, Petitioners were also charged with violations of the laws of war and now face the prospect of trial by military commissions in accordance with the Military Commissions Act, 10 U.S.C. § 948a - 950w (the "MCA"). Currently pending before the Court is the Government's Motion to Dismiss or, in the alternative, to Hold in Abeyance, Petitioners' habeas petitions pending completion of their military commission proceedings.*fn1

After thoroughly reviewing the Government's Motion, Petitioner's Opposition, and the Government's Reply, as well as the relevant case law and applicable statutory authority, the Court finds that a stay of Petitioners' habeas cases is warranted, but only to the extent that the charges against Petitioners are ultimately referred to military commissions for further proceedings. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART the Government's Motion to hold the petitions in abeyance pending completion of military commission proceedings, with a stay to commence only if and when the charges against Petitioners are referred to military commissions, and shall DENY WITHOUT PREJUDICE the Government's Motion to Dismiss, for the following reasons.

I. BACKGROUND

A. Statutory Background

In October 2006, Congress enacted the MCA to establish the procedures governing the use of military commissions for trying alien unlawful enemy combatants engaged in hostilities against the United States. The procedures governing these military commissions are set forth in both the MCA and the Rules for Military Commissions. See Rules for Military Commissions ("R.M.C.") 101(a) ("[t]hese rules govern the procedures and punishments in all trials by military commissions of alien unlawful enemy combatants engaged in hostilities against the United States as defined in [the MCA]").*fn2

The military commission process begins with a "swearing of charges" against a defendant. R.M.C. 307 ("[a]ny person subject to the Code may swear charges"). The charges are then referred to the Secretary of Defense or any officer or official of the United States designated by the Secretary to receive such charges (the "Convening Authority"), who decides whether to dismiss any or all of the charges or refer any or all of them to a military commission. 10 U.S.C. § 948(h); R.M.C. 401(a). The Convening Authority must make this determination "in a prompt manner," but no deadline for making this determination is specified. R.M.C. 401(b). Assuming the Convening Authority refers one or more charges to a military commission, the defendant receives certain speedy trial rights. For example, the defendant must be arraigned within 30 days after receiving service of the charges, and a military judge must announce the assembly of a military commission within 120 days. R.M.C. 707(a).

Military commissions under the MCA are composed of at least five military officers, 10 U.S.C. § 948m, and are presided over by a military judge, id. § 948j. In addition to hearing evidence related to whether the defendant violated the laws of war or other offenses triable by military commission, id. § 948(a), a military commission may also make an independent determination as to whether the defendant is an unlawful enemy combatant, defined as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." 10 U.S.C. §§ 948a(1)(A)(i); 948d(a).

The MCA affords a defendant three levels of appellate review if convicted. First, in all instances where the defendant is found guilty by the military commission, the case is reviewed by the Court of Military Commission Review ("CMCR"), comprised of at least three military judges (or civilians with "comparable qualifications" appointed by the Secretary of Defense). Id. §§ 950c(a), 950f. The CMCR may "act only with respect to matters of law." Id. § 950f(c). A defendant may then appeal as of right to the United States Court of Appeals for the District of Columbia Circuit. Id. § 950g. The D.C. Circuit has jurisdiction to review "whether the final decision [of the military commission] was consistent with the standards and procedures specified [in the MCA]" and with "the Constitution and the laws of the United States." Id. § 950g(c). Finally, a defendant may seek review of the D.C. Circuit's decision by writ of certiorari to the United States Supreme Court. Id. § 950g(d).*fn3

B. Factual and Procedural Background

On October 21, 2008, Petitioners were formally charged with having violated the laws of war under the MCA. Each Petitioner was charged with two offenses: providing material support for terrorism in violation of 10 U.S.C. § 950v(b)(25), and conspiracy in violation of 10 U.S.C. § 950v(b)(28). As reflected in their charge sheets, Al Rabiah is charged with traveling between Kuwait and Afghanistan to meet with, and provide funds to, Usama Bin Laden,*fn4 soliciting funds from individuals in Kuwait for the purpose of giving money to al Qaeda, and managing and distributing supplies from an al Qaeda supply depot at Tora Bora, Afghanistan. See Gov't's Mot., Ex. A at 3-4 (10/21/08 Al Rabiah Charge Sheet). Al Kandari is charged with visiting the al Farouq training camp in Afghanistan, providing instruction to Al Qaeda members and trainees present at the camp, serving as an advisor to Usama Bin Laden, and producing recruitment tapes that encouraged others to join al Qaeda and participate in jihad. Id., Ex. B at 3 (10/21/08 Al Kandari Charge Sheet). The charges against Al Kandari were subsequently amended on December 3, 2008, to add two additional counts of providing material support for terrorism and conspiracy, respectively. See Gov't's Reply at 8 n.2 & Ex. A at 1-3 (12/3/08 Al Kandari Amended Charge Sheet). The amended charges allege that Al Kandari traveled to Tora Bora, Afghanistan, where he fought with Al Qaeda forces. Id. at 4.

These charge sheets (including the Al Kandari's amended charge sheet) are currently under consideration by the Convening Authority. See Gov't's Mot. at 5; Gov't's Reply at 8 n.2. The Government does not indicate that the charges have been referred by the Convening Authority to military commissions, and the Government concedes that there is no deadline by which the Convening Authority must decide whether to dismiss or approve the charges. See Gov't's Reply at 8 (referencing the "lack of a deadline for the Convening Authority to complete its review and refer charges to a military commission").

On November 26, 2008, the Government filed a Motion to Dismiss or, in the alternative, Hold in Abeyance the Petitioners' habeas petitions pending completion of the military commission's proceedings. Petitioners filed an Opposition to the Government's Motion on December 8, 2008, and the Government filed a Reply on ...


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