UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HEDI HAMMAMY, )
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Petitioner, )
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v. ) Civil Case No. 05-429 (RJL)
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BARACK H. OBAMA, et al., )
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Respondents. )
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MEMORANDUM ORDER
(April ~, 2009)
Petitioner Hedi Hammamy ("petitioner" or "Hammamy") is a detainee being held
at the U.S. Naval Base at Guantanamo Bay, Cuba. He alleges that he is being unlawfully
detained by Respondents President Barack H. Obama, Secretary of Defense Robert M.
Gates, Army Brigade General Jay Hood, and Army Colonel Nelson J. Cannon
(collectively, "respondents" or the "Government"). On March 12,2009, this Court
commenced habeas corpus proceedings for petitioner Hammamy. That morning, counsel
for both parties made unclassified opening statements in a public hearing. Petitioner
Hammamy listened to a live translation of the opening statements via a telephone
transmission to Guantanamo Bay, Cuba.
Pursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a
party to an action in his official capacity ceases to hold office, the court will automatically
substitute that officer's successor. Accordingly, the Court substitutes Barack H. Obama for
George W. Bush and Robert M. Gates for Donald H. Rumsfeld.
Thereafter, the Court went into a closed-door session to hear each side present an
opening statement that included relevant classified information. Upon completion of
those statements, each side presented its evidence and arguments regarding various
material issues of fact in dispute by the parties. That presentation was completed in the
early evening of March 12,2009, and petitioner Hammamy decided thereafter not to
testify on his own behalf. After a brief recess, the Court heard closing arguments from
the parties. At the end of those arguments, the Court informed the parties that it would
hold a public hearing in the near future to announce its decision. A classified version of
this opinion setting forth in greater detail the Court's reasoning will be distributed
through the Court Security Office next week, together with the final judgment.
Before stating the Court's ruling, a brief statement of the relevant factual and
procedural background of this case is appropriate.
BACKGROUND
Petitioner Hammamy, a Tunisian citizen, was arrested in April 2002 in Pakistan by
Pakistani authorities, transferred to United States custody, and has been detained in
Guantanamo Bay, Cuba since his arrival. (Unclassified Hr'g Tr. at 9, 18.)
In the aftermath of the Supreme Court's decision in Rasul v. Bush, 542 U.S. 466,
473 (2000) (holding that 28 U.S.C. § 2241 extended statutory habeas corpus jurisdiction
to Guantanamo), petitioner Hammamy filed his habeas corpus petition with this Court on
March 2,2005. (Pet. for Writs of Habeas Corpus [Dkt. #1].) As with hundreds of other
petitions filed around that time, no action was taken by this Court on the petition until the
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Supreme Court ruled on June 12,2008 in Boumediene v. Bush, 128 S. Ct. 2279 (2008),
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that Guantanamo detainees are "entitled to the privilege of habeas corpus to challenge the
legality of their detentions." Id. at 2262.
In the month following the Boumediene decision, this Court met with counsel in
petitioner Hammamy's case on a number of occasions to discuss issues uniq e to the case
and procedural issues attendant to the habeas process. On July 30, 2008, th Court
ordered respondents to file their Factual Return for petitioner Hammamy. ( ,riefing and
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Scheduling Order, July 30, 2008 [Dkt. #88].) On September 9,2008, respoqdents sought
,
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a thirty-day extension for the production of the Hammamy Factual Return. rot. for
Partial Relief, Sept. 9,2008 [Dkt. #114].) The Court granted respondents' motion on
September 23,2008 and set October 21,2008 as the date for the filing of the Factual
Return. (Order, Sept. 23, 2008 [Dkt. #116].)
On October 24, 2008, the Court met with counsel to discuss any issues raised after
reviewing respondents' Factual Return. On November 28,2008, the Court issued its
Case Management Order ("CMO") for the case. (Case Management Order, Nov. 28,
2008 [Dkt. #154].) That order was essentially a duplicate of the earlier CMO issued by
the Court in the Boumediene v. Bush case, No. 04-cv-1166, on August 27,2008.
On December 3,2008, the Government filed an unclassified version of the Factual
Return. (Notice of Filing of Unclassified Return, Dec. 3, 2008 [Dkt. #163].)
Approximately two weeks later, on December 14,2008, petitioner Hammamy's counsel
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filed a motion for leave to take discovery. (Notice of Filing of Mots. for Leave to Take
Discovery, Dec. 16,2008 [Dkt. #176].) The Court granted some of these requests.
On December 22,2008, petitioner Hammamy's counsel filed his Initial Traverse,
setting forth the factual basis for his opposition to the Government's Factual Return.
(Notice of Filing, Jan. 11,2009 [Dkt. #200].) Nine days later, respondents filed an
unopposed motion to stay the proceedings for sixty days in order to give the Government
an opportunity to transfer petitioner to an acceptable country. (Motion to Stay Habeas
Proceeding of Pet. Hammamy, Dec. 31, 2008 [Dkt. #191].) The Court granted the stay
on January 6, 2009. (Minute Order, Jan. 6,2009.) Ten days later, the Government
moved to supplement its Return. (Notice of Filing of Mot. Under Seal, Jan. 16,2009
[Dkt. #204].) The Court granted its motion on February 18,2009. (Order, Feb. 18,2009
[Dkt. #212].) On March 1,2009, petitioner filed a motion to extend the stay. (Notice of
Filing of Unopposed Mot. to Stay, Mar. 1,2009 [Dkt. #213].) Although the Government
did not oppose the motion, the Court denied the extension for lack of good cause shown.
(Minute Order, Mar. 6, 2009.) Petitioner supplemented his Traverse on two occasions,
(Notice of Filing of Pet. Hedi Hammamy's First Supplement to Preliminary Traverse,
Jan. 28, 2009 [Dkt. #207]; Notice of Filing of Second Supp. to Traverse, Mar. 3, 2009
[Dkt. #214]), and a prehearing conference was held on March 10,2009 in an effort to
narrow the issues to be covered in the habeas hearing.
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Based on a careful review of the Factual Return and Traverse and after a day of
hearings on the factual issues in dispute and the arguments of counsel, the following is
the Court's ruling on Hammamy's petition.
LEGAL STANDARD
Under the CMO, the Government bears the burden of proving the lawfulness of
the petitioner's detention by a preponderance of the evidence. (CMO ~ II.A.) The
Government argues that petitioner Hammamy is lawfully detained because he is an
"enemy combatant" who can be held pursuant to the Authorization for Use of Military
Force and the President's powers as Commander-in-Chief. 2 (Notice of Filing of Enemy
Combatant Statement, Dec. 22, 2008 [Dkt. #182].) The following definition of "enemy
combatant," previously adopted by this Court in the Boumediene cases, governs the
proceedings in this case:
An "enemy combatant" is an individual who was part of or
supporting Taliban or al Qaeda forces, or associated forces
that are engaged in hostilities against the United States or its
coalition partners. This includes any person who has
committed a belligerent act or has directly supported
hostilities in aid of enemy armed forces.
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In response to the September 11 th terrorist attacks, Congress 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. No. 107-40, §§ 1-2, 115 Stat. 224 (Sept. 18,
2001).
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Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008). Accordingly, the
question before this Court is whether the Government has shown by a preponderance of
the evidence that petitioner Hammamy is being lawfully detained, i.e., that he is an
"enemy combatant" under the definition adopted by this Court.
ANALYSIS
The Government contends that petitioner Hammamy is an enemy combatant under
the definition established by this Court because he was "part of or supporting al Qaeda or
Taliban forces." In particular, the Government contends that petitioner Hammamy: (1)
fought with Taliban or al Qaeda forces against U.S. and Afghan forces during the battle
of Tora Bora, and (2) was a member of an Italy-based terrorist cell that provided support
to various Islamic terrorist groups. (Unclassified Opening at 18,21,22.) In that regard,
the Government alleges that Hammamy left Italy, in part, to avoid being arrested by
Italian authorities for his involvement in this particular terrorist cell. (Unclassified
Opening at 21.) The Government additionally contends that petitioner Hammamy
attended a terrorist training camp in Afghanistan and was involved in an organization in
Pakistan, (Unclassified Opening at 22,23), the identity of which is too secret for an
unclassified description.
Petitioner, not surprisingly, disagrees. He contends that he did not fight in the
battle of Tora Bora, and he was never a member of a terrorist cell in Italy. (Unclassified
Opening at 11-12, 14.) Additionally, he denies ever attending military training camps in
Afghanistan or being part of any organization in Pakistan that has engaged in terrorist
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conduct. (Unclassified Opening at 12, 16.) For the following reasons, the Court
concludes that the Government has met its burden under the Case Management Order and
will DENY petitioner Hammamy's petition for a writ of habeas corpus.
The Government's evidence principally consists of intelligence reports from
various government law enforcement and intelligence services. Due to the unclassified
nature of this proceeding, however, the Court is limited to the following description of
the factual basis of the Government's case.
First, with respect to the Government's contention that petitioner fought at the
battle of Tora Bora, it relies upon an intelligence report that petitioner's identity papers
were found after the Battle of Tora Bora in the al Qaeda cave complex. Although the
petitioner belittles the evidentiary value of this report standing alone, the Government's
evidence cannot be viewed in a vacuum. Indeed, when combined with the intelligence
report describing an extensive Italian law enforcement investigation into Hammamy's
membership in, and the activities of, a terrorist cell that provided assistance and support
to various Islamic terrorist organizations, the intelligence report of Hammamy's presence
at Tora Bora becomes all the more probable. How so?
The presence of petitioner's identity papers in the Talibanlal Qaeda stronghold of
Tora Bora is, of course, powerful evidence itself that Hammamy was actually there.
While it may not be as inherently definitive as DNA, fingerprints, or a photograph of his
presence, it does nonetheless provide a direct link between the petitioner and Taliban or
al Qaeda forces. Hammamy's contention that his identity papers were stolen from him
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shortly after his arrival in Pakistan rings hollow at best. Aside from its convenience
under the circumstances, petitioner's story provides no basis to account for how his
identity papers somehow mysteriously traveled the hundreds of miles from the point of
their theft in Pakistan to the highly secluded mountain hideaway of Tora Bora in
Afghanistan. While theoretically it is possible that this supposed thief was heading for
Tora Bora himself, common sense dictates that such a conclusion is not in the least bit
likely.
In any event, the Government, wisely, chose not to rely alone on that link between
Hammamy and Tora Bora, instead contending that this evidence must be viewed in
conjunction with Hammamy's conduct in Italy just prior to his arrival in Afghanistan and
Pakistan. As noted previously, petitioner's conduct in Italy was the subject of a lengthy
investigation by Italian law enforcement authorities and was sufficient to warrant
charging Hammamy and several associates with supporting terrorism, in part, by
furnishing false documents and currency. Unfortunately for the Italian authorities,
Hammamy left Italy in time to avoid being arrested along with other members of the cell.
And while ajudicial finding from a foreign government of Hammamy's involvement in
that terrorist cell would be clearly preferable to a U.S. government agency's review and
evaluation of that government's investigative reports, in the absence of any reason to
question its accuracy, the report deserves, at a minimum, a rebuttable presumption of
reliability for these limited purposes. Indeed, combining the Tora Bora evidence with the
law enforcement reports, the Court believes it unnecessary to rely upon the Government's
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other evidence, i. e., alleging attendance at terrorist training camps and membership in a
Pakistani organization that engaged in terrorist conduct. As a result, the Court need not -
and will not - evaluate the credibility and reliability of the sources of that additional
evidence.
Thus, based on the evidence presented by the Government described above and all
reasonable inferences drawn therefrom, the Court concludes that petitioner Hammamy is
being lawfully detained as an enemy combatant because it is more probable than not that
he was part of or supporting Taliban or al Qaeda forces both prior to and after the
initiation of U.S. hostilities in October 2001. Accordingly, the Court must, and will,
DENY petitioner Hammamy's petition for a writ of habeas corpus and will not order his
release.
CONCLUSION
F or all the foregoing reasons, and for the reasons in the forthcoming classified
version of this opinion, it is hereby
ORDERED that petitioner Hedi Hammamy's petition for writ of habeas corpus is
DENIED.
SO ORDERED.
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RICHARDJ. N
United States District Judge
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