The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The petitioners in the cases captioned above are detainees at the Guantanamo Bay Naval Base in Guantánamo Bay, Cuba. They challenge the legality of their confinement by the government,*fn1 seeking the issuance of writs of habeas corpus to secure their release from detention. Remarkably, despite the years that have passed since these habeas corpus petitions were filed, the state of the law regarding the scope of the President's authority to detain the petitioners remains unsettled. Bereft of any definitive guidance from the Supreme Court or the Court of Appeals for this Circuit on this point of law, the Court must attempt to ascertain for itself whether the President has the authority to detain individuals as part of its ongoing military campaign against the terrorist organization known as al-Qaeda and, if so, what is the scope of that authority. This memorandum opinion represents the Court's attempt to answer those threshold legal questions.*fn2
On September 11, 2001, nineteen individuals affiliated with the Sunni extremist movement known as al-Qaeda hijacked four commercial passenger jet airliners in a coordinated terrorist attack against this country. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States 4 (W.W. Norton & Co., Inc.). Two of the airliners were flown into the World Trade Center in New York City, id. at 4-8; a third crashed into the Pentagon in Arlington, Virginia, id. at 8-10. The fourth airliner, United Airlines Flight 93, crashed into an empty field near Shanksville, Pennsylvania, after passengers aboard the flight attempted to commandeer the plane. Id. at 10-14. Exactly one week later, Congress passed a joint resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" those attacks "to prevent any future acts of international terrorism against the United States by such nations, organizations[,] or persons." Authorization for Use of Military Force (the "AUMF"), Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001).
Pursuant to this authorization of force, Operation Enduring Freedom, a collaborative military operation conducted by a coalition of nations principally consisting of troops from the United States and the United Kingdom, commenced on October 7, 2001. GlobalSecurity.org, Text: President Bush Announces Military Strikes in Afghanistan (Oct. 7, 2001), http://www.globalsecurity.org/military/library/news/2001/10/mil-011007-usia01.htm. The stated purpose of this operation "included the destruction of terrorist training camps and infrastructure within Afghanistan, the capture of al Qaeda leaders, and the cessation of terrorist activities in Afghanistan." Christopher B. Hynes et al., National Security, 41 Int'l Law. 683, 685 (2007). Working with the United Islamic Front for the Salvation of Afghanistan, also known as the "Northern Alliance," coalition forces succeeded in removing from power the Taliban regime and installing a democratic form of government in Afghanistan in 2004. However, remnants of the Taliban regime still wield influence in many regions of Afghanistan and neighboring Pakistan, Osama bin Laden and other al-Qaeda leaders remain at large, and al-Qaeda continues to operate today, albeit with a diminished capacity. See Michael Chertoff, Tools Against Terror: All of the Above, 32 Harv. J.L. & Pub. Pol'y 219, 219-21 (2009) (concluding that "al Qaeda no longer has a state sponsor" and "neither owns nor has free reign over an entire country anymore," and that "[m]uch of its original leadership has been brought to justice in one way or another").
Consequently, Operation Enduring Freedom remains in effect some seven-and-a-half years after it was first initiated.
The scope of the detention authority claimed by the President in the armed conflict authorized by the AUMF began to take shape within months of the passing of the joint resolution. On November 13, 2001, President Bush issued a Military Order entitled Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). In that order, the President, citing both the AUMF and "the authority vested in [him] as . . . Commander[-]in[-]Chief of the Armed Forces" pursuant to Article II of the Constitution, concluded that it was "necessary for individuals subject to this order . . . to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." Id. President Bush defined the term "individual subject to this order" to mean any non-United States citizen for whom there was "reason to believe" that he (1) was a present or past member of al-Qaeda, (2) had "engaged in, aided or abetted, or conspired to commit acts of international terrorism, or acts in preparation therefor" that "caused, threaten[ed] to cause, or ha[d] as their aim to cause injury to or adverse effects on" the United States, its citizens, "national security, foreign policy, or the economy," or (3) "knowingly harbored" such an individual, provided that detention was "in the interest of the United States." Id. at 57,834. The President also delegated authority to the Secretary of Defense to detain and try individuals subject to the order. Id. at 57,834-57,835.
Individuals detained by President Bush's Military Order were subsequently labeled "enemy combatants" by the Department of Defense, harkening back to a phrase used by the Supreme Court in a World War II-era case known as Ex parte Quirin, 317 U.S. 1 (1942). Louis Fisher, Military Tribunals and Presidential Power 220-22 (Univ. Press of Kan. 2005). On November 26, 2002, the General Counsel for the Department of Defense, William J. Haynes, II, defined an enemy combatant as "'an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict.'" Id. at 221 (quoting Letter from William J. Haynes II, General Counsel, Department of Defense, to Senator Carl Levin (Nov. 26, 2002) (the "Haynes Letter") at 1-2). Haynes further noted the "'consistency'" of the Department of Defense's practices with the following language from Quirin: "'"Citizens who associate themselves with the military arm of the enemy government, and[,] with its aid, guidance[,] and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war."'" Id. at 222 (quoting Haynes Letter at 1-2 (quoting Quirin, 317 U.S. at 37-38)).
These wide-ranging assertions of detention authority by the executive branch were tested for the first time in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), where the Supreme Court considered whether the "necessary and appropriate force" authorized by the AUMF and the President's inherent authority as Commander-in-Chief of the Armed Forces under Article II of the Constitution permitted the President to detain an American citizen alleged to have taken up arms against the United States on behalf of the Taliban. "Born in Louisiana in 1980," Yaser Esam Hamdi "moved with his family to Saudi Arabia as a child," then migrated to Afghanistan by 2001. Id. at 510. "At some point that year, he was seized by members of the Northern Alliance, . . . and eventually was turned over to the United States military." Id. The United States designated Hamdi as an "enemy combatant" subject to indefinite detention "without formal charges or proceedings." Id.
In June of 2002, Hamdi's father filed a habeas corpus petition on Hamdi's behalf in the United States District Court for the Eastern District of Virginia, "contend[ing] that Hamdi's detention was not legally authorized" and requesting, inter alia, the appointment of counsel, an order barring the government from further interrogating Hamdi, a declaration that the government's conduct violated Hamdi's Fifth and Fourteenth Amendment rights as an American citizen, an evidentiary hearing to resolve any disputes Hamdi might have with the material factual allegations made against him, and release from custody. Id. at 511. After the Fourth Circuit reversed the district court's order appointing an attorney for Hamdi and ordering that the attorney be given access to Hamdi, the government moved to dismiss Hamdi's petition on the grounds that he was an "enemy combatant." Id. at 512. The district court denied this motion, id. at 513, but the Fourth Circuit reversed the district court again, finding that the evidence adduced by the government-a single declaration from the Special Advisor to the Under Secretary of Defense for Policy-"provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi pursuant to the President's war powers." Id. at 514. "On the more global question of whether legal authorization exist[ed] for the detention of citizen enemy combatants at all, the Fourth Circuit rejected Hamdi's arguments that . . . any such detentions [were] unlawful," finding authorization for his detention in the AUMF. Id. at 515.
On writ of certiorari to the Supreme Court, the Court considered "[t]he threshold question . . . whether the Executive has the authority to detain citizens who qualify as 'enemy combatants.'" Id. at 516 (plurality opinion). Noting "some debate as to the proper scope of this term," the Court defined the term "for purposes of th[e] case" as meaning "an individual who . . . was 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." Id. (internal citation and quotation marks omitted) (emphasis added). The Court then proceeded to inquire "whether the detention of citizens falling within that definition [was] authorized." Id.
A plurality of the Court answered the latter question in the affirmative, concluding "that Congress ha[d] in fact authorized Hamdi's detention through the AUMF." Id. at 517. After rejecting Hamdi's argument that his detention was forbidden by 18 U.S.C. § 4001(a), id., the plurality reasoned that "[t]here [could] be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al[-]Qaeda terrorist network responsible for those attacks, [were] individuals Congress sought to target in passing the AUMF," id. at 518. Specifically, the plurality found that "detention of individuals falling into the limited category" before it; i.e., an individual in Hamdi's particular situation, was "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress ha[d] authorized the President to use." Id. The plurality therefore concluded that "[t]he United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who 'engaged in an armed conflict against the United States'" because, assuming that the "the record establishe[d] that United States troops [were] still involved in active combat in Afghanistan, those detentions [would be] part of the exercise of 'necessary and appropriate force,' and therefore [would be] authorized by the AUMF." Id. at 521.
Having determined that the President could potentially detain "enemy combatants," the plurality turned to "the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status." Id. at 524. The plurality rejected the notion that such a determination could be made "purely as a matter of law, with no further hearing or factfinding necessary," id. at 526, choosing instead to apply the balancing test adopted in Mathews v. Eldridge, 424 U.S. 319 (1976), to determine the extent of the process to be afforded to citizens challenging their designations as "enemy combatants." Id. at 528-29. Measuring Hamdi's "interest in being free from physical detention by one's own government," id. at 529, against "the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States," id. at 531, the plurality concluded "that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the [g]overnment's factual assertions before a neutral decisionmaker," id. at 533.
Aside from these "core elements," however, the plurality contemplated that "enemy-combatant proceedings [might] be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Id. The plurality went on to explain how that "burden" might be lessened:
Hearsay, for example, [might] need to be accepted as the most reliable evidence from the [g]overnment in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the [g]overnment's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the [g]overnment puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria.
Justice Souter and Justice Ginsberg concurred in the judgment of the plurality, but dissented in part from the plurality's opinion. In a separate opinion joined by Justice Ginsburg, Justice Souter argued that 18 U.S.C. § 4001(a) "require[s] a clear statement of authorization to detain," Hamdi, 542 U.S. at 545 (Souter, J., concurring in part and dissenting in part), which the AUMF did not, in his estimation, necessarily provide, id. at 547-48. Justice Souter conceded that a plausible argument could be made that the AUMF authorized the President "to deal with enemy belligerents according to the treaties and customs known collectively as the laws of war," id. at 548, but concluded that the government could not invoke such authority because it did not treat Hamdi as a prisoner of war as required by the laws of war, id. at 549-51.
Justice Scalia and Justice Stevens dissented from the plurality's opinion, asserting that United States citizens could only be tried in civilian courts absent lawful suspension of the writ of habeas corpus by Congress. See id. at 554-579 (Scalia, J., dissenting) (reasoning that "[a]bsent suspension" of the writ of habeas corpus, "the Executive's assertion of military exigency has not been thought sufficient to permit detention without charge"). Justice Thomas wrote a separate dissent in which he "agree[d] with the plurality that the [f]ederal [g]overnment has [the] power to detain those that the [e]xecutive [b]ranch determines to be enemy combatants," id. at 589 (Thomas, J., dissenting), but rejected the balancing test adopted by the plurality as a means of determining the amount of process that must be afforded to citizens charged as enemy combatants, see id. at 589-92 ("[T]he Executive's decision that a detention is necessary to protect the public need not and should not be subjected to judicial second-guessing."). Instead, he concluded that "an Executive, acting pursuant to statutory and constitutional authority, may, consistent with the Due Process Clause, unilaterally decide to detain an individual if the Executive deems this necessary for the public safety even if he is mistaken." Id. at 590 (emphasis in original).
Based on this somewhat unusual voting alignment, the Supreme Court vacated the Fourth Circuit's judgment and remanded the case for further proceedings. Id. at 539 (plurality opinion). However, neither the plurality nor any of the partially concurring or dissenting justices attempted to address the outer boundaries of the "enemy combatant" definition. Instead, the plurality predicted that "[t]he permissible bounds of the category [would] be defined by the lower courts as subsequent cases [were] presented to them." Id. at 522 n.1.
This prediction did not come to pass-at least, not in the manner foreseen by the plurality. On the same date that it issued Hamdi, a majority of the Supreme Court held in Rasul v. Bush, 542 U.S. 466 (2004), that alien detainees designated as enemy combatants could contest their detention at the Guantanamo Bay Naval Base in Guantánamo Bay, Cuba, under the federal habeas corpus statute, 28 U.S.C. § 2241. See Rasul, 542 U.S. at 484 ("We . . . hold that § 2241 confers on the [d]istrict [c]court jurisdiction to hear petitioners' habeas corpus challenges to the legality of their detention at the Guantanamo Bay Naval Base."). However, Congress effectively neutralized this ruling by passing the Detainee Treatment Act of 2005 (the "DTA"), Pub. L. No. 109-148, 119 Stat. 2680 (2005), which, inter alia, stripped the federal courts of jurisdiction over habeas corpus petitions filed by aliens detained at Guantánamo Bay or by individuals determined to have been properly detained as enemy combatants under the procedures set up by the DTA. Id. § 1005(e), 119 Stat. at 2741-42. And when the Supreme Court thereafter held that the DTA did not apply retroactively to bar habeas corpus proceedings pending at the time of the DTA's enactment, Hamdi v. Rumsfeld, 542 U.S. 507, 575-84 (2006), Congress passed the Military Commissions Act of 2006 (the "MCA"), Pub. L. No. 109-366, 120 Stat. 2600 (2006), which amended § 2241 to strip the federal courts of jurisdiction over detainee habeas corpus petitions retroactively as well as prospectively, Pub. L. No. 109-366, § 7(a), 120 Stat. at 2636.
Instead, it was not until the Supreme Court issued its decision in Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229 (2008), that the designation of individuals as "enemy combatants" by the President became susceptible to judicial review. In that case, the Supreme Court held that individuals detained at Guantánamo Bay, Cuba, were protected by the Suspension Clause of the Constitution, and therefore were "entitled to the privilege of habeas corpus to challenge the legality of their detention." Id. at ___, 128 S.Ct. at 2262. The Court further found that the review procedures established by the DTA did not constitute an adequate substitute for habeas corpus review. Id. at ___, 128 S.Ct. at 2262-74. The Court therefore held that "§ 7 of the [Military Commissions Act] operate[d] as an unconstitutional suspension of the writ" of habeas corpus for the Guantánamo Bay detainees. Id. at 2240.
The Supreme Court's ruling in Boumediene cleared the way for the first opinion by a circuit court of appeals to address at length the scope of the President's authority to detain individuals as enemy combatants. In al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), vacated sub nom. al-Marri v. Spagone, ___ U.S. ___, 129 S.Ct. 1546 (2009) ("Spagone"), the Fourth Circuit addressed the legality of the military detention of a Qatari citizen (and United States resident) detained at the Naval Consolidated Brig in South Carolina. Along with his wife and children, al-Marri entered the United States on September 10, 2001, ostensibly to obtain his master's degree at Bradley University located in Peoria, Illinois. Id. at 219 (Motz, J., dissenting in part and concurring in part). "Three months later, . . . FBI agents arrested al-Marri at his home in Peoria as a material witness in the [g]overnment's investigation of the September 11th attacks." Id.
The government charged al-Marri with various offenses relating to the fraudulent obtainment and use of credit card numbers, but the criminal charges against him were dismissed when President Bush determined that al-Marri was an enemy combatant and ordered the Attorney General to surrender him to the custody of the Secretary of Defense. Id. Eventually, al-Marri's counsel filed a habeas corpus petition on his behalf in the United States District Court for the District of South Carolina. Id. at 220. In response, the government submitted a declaration from Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism (the "Rapp Declaration"), in which Rapp asserted, inter alia, that al-Marri was sent by al-Qaeda to the United States "to serve as a 'sleeper agent' to facilitate terrorist activities and explore disrupting this country's financial system through computer hacking." Id.
After denying al-Marri's motion for summary judgment, the district court referred the case to a magistrate judge "for consideration of the appropriate process to be afforded al-Marri in light of Hamdi." Id. at 221. "The magistrate judge ruled that the Rapp Declaration provided alMarri with sufficient notice of the basis of his detention as an enemy combatant and directed alMarri to file rebuttal evidence." Id. When al-Marri failed to do so, contending instead "that the [g]overnment had an initial burden to produce evidence that he was an enemy combatant and that the Rapp Declaration did not suffice," the magistrate judge recommended dismissal of al-Marri's habeas corpus petition. Id. The district court adopted that recommendation and dismissed alMarri's petition in August of 2006. Id.
On appeal to the Fourth Circuit, a panel of the court reversed the district court's judgment and remanded the case for further proceedings. Id. However, the government successfully moved for rehearing en banc, resulting in a per curiam judgment that again reversed the district court and remanded the case "for further proceedings consistent with the [court's several] opinions." Id. at 216-17. Specifically, by a 5-to-4 vote, a majority of the court concluded "that, if the [g]overnment's allegations about al-Marri [were] true, Congress ha[d] empowered the President to detain him as an enemy combatant," while a second 5-to-4 ruling by a separate majority of the court held that "al-Marri ha[d] not been afforded sufficient process to challenge his designation as an enemy combatant." Id. at 216.
With respect to the first question; i.e., whether the government's allegations against alMarri sufficed to justify his detention as an "enemy combatant," the court issued four separate opinions. Three members of the court joined in an opinion written by Judge Motz in which she concluded that al-Marri was not an "enemy combatant" under the traditional laws of war. Id. at 217-53 (Motz, J., dissenting in part and concurring in part). Judge Traxler, who sided with the majority on both questions before the Court, wrote a separate opinion explaining his belief that al-Marri was an "enemy combatant" based upon the plain language of the AUMF. Id. at 257-62 (Traxler, J., concurring). Chief Judge Williams wrote a separate opinion in which he concluded that under Quirin and Hamdi, an individual is an enemy combatant if "(1) he attempts or engages in belligerent acts against the United States, either domestically or in a foreign combat zone (2) on behalf of a an enemy force." Id. at 285 (Williams, C.J., concurring in part and dissenting in part). Finally, Judge Wilkinson issued a lengthy opinion joined by Judge Duncan in which he concluded, after a sustained statutory and constitutional analysis, that to be an enemy combatant "the person must (1) be a member of (2) an organization or nation ...