UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZAYN AL ABIDIN MUHAMMAD
HUSAYN (ISN #10016),
Petitioner,
v. Civil Action No. 08-1360
(EGS)
LLOYD AUSTIN, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner’s Motion for Order
Granting Writ of Habeas Corpus. See generally Mot. for Order
Granting Writ of Habeas Corpus (“Habeas Mot.”), ECF No. 488. 1
Petitioner claims that his continued detention at Guantanamo Bay
is unconstitutional under the Due Process Clause of the Fifth
Amendment to the U.S. Constitution and invalid under the 2001
Authorization for Use of Military Force (“AUMF”). See generally
id. Respondents oppose, arguing that Petitioner may not invoke
Due Process Clause protections and that Petitioner’s detention
is lawful under the AUMF. See generally Resp’ts’ Opp’n, ECF No.
500.
Upon careful consideration of Petitioner’s motion,
Respondents’ opposition, the reply thereto, the arguments of
1 When citing electronic filings throughout this opinion, the
Court cites to the ECF header page number, not the original page
number of the filed document.
amici, 2 and the applicable law, and for the reasons explained
below, the Court DENIES Petitioner’s motion.
I. Background
Zayn Husayn, also known as Abu Zubaydah, (“Petitioner”) was
born in Palestine and raised in Saudi Arabia. He has been
detained at the U.S. Naval Base in Guantanamo Bay, Cuba
(“Guantanamo”) since September of 2006, having been captured on
or about March 28, 2002 in Faisalabad, Pakistan and held at
various “secret black sites” until his transfer to Guantanamo.
His detention is based on Respondents’ allegation that he was
part of, and substantially supported, al Qaeda and associated
forces.
The Court recently ruled that Petitioner’s continued
detention is authorized by the AUMF. See generally Husayn v.
Austin, No. 08-cv-1360, 2022 WL 2093067 (D.D.C. June 10, 2022).
The AUMF permits the President “to use 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.” Authorization for Use
of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224
(2001). In the 2012 National Defense Authorization Act (“2012
2 The Court appreciates the analysis provided by the amici.
2
NDAA”) Congress reaffirmed “the authority of the President to
use all necessary and appropriate force pursuant to the [AUMF],”
including “[d]etention under the law of war without trial until
the end of the hostilities authorized by the [AUMF].” National
Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-
81 § 1021(a), (b)(2), (c)(1), 125 Stat. 1298, 1562.
“The AUMF authorizes detention for the duration of the
conflict between the United States and the Taliban and al
Qaeda.” Al-Alwi v. Trump, 901 F.3d 294, 299 (D.C. Cir. 2018);
see also Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011)
(citing Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004)(“The AUMF,
among other things, authorizes the Executive Branch to detain
for the duration of hostilities those individuals who are part
of al Qaeda or the Taliban.”)). “Neither [the AUMF nor the 2012
NDAA] places limits on the length of detention in an ongoing
conflict.” Id. at 297. “[T]he AUMF remains in force if
hostilities between the United States and the Taliban and al
Qaeda continue.” Id. (citing Ali v. Obama, 736 F.3d 542, 552
(D.C. Cir. 2013)(“[T]he 2001 AUMF does not have a time limit,
and the Constitution allows the detention of enemy combatants
for the duration of hostilities.”)).
Whether Petitioner’s continued detention “remains necessary
to protect against a significant security threat to the United
States”—as distinct from its legality under the AUMF and whether
3
detention is consistent with Petitioner’s habeas rights—is
reviewed on a periodic basis by the Guantanamo Bay Periodic
Review Board (“PRB”). Ali v. Trump, 959 F.3d 364, 368 (D.C. Cir.
2020)(citing Exec. Order No. 15,567, 76 Fed. Reg. 13, 277 (March
7, 2011)(establishing the Periodic Review Board). Respondent
represents that the result of Petitioner’s initial PRB review
was announced in September 2016, with the result being that he
was designated for continued detention. Resp’ts’ Opp’n, ECF No.
500 at 15. Since he was designated for continued detention at
that time, Petitioner is eligible for another full PRB review
every three years, see Exec. Order 13,567 at § 3(b), 76 Fed.
Reg. 13,277 (Mar. 7, 2011); and for a file review every six
months, see id. § 3(c). Respondent represents that a subsequent
PRB was completed in April 2017 and another was ongoing as of
January 2018. Resp’ts’ Opp’n, ECF No. 500 at 15.
In the most recently-completed review of Petitioner’s
detention in March 2020, the Periodic Review Board made the
following determination:
The Periodic Review Board, by consensus,
determined that continued law of war detention
of the detainee remains necessary to protect
against a continuing significant threat to the
security of the United States.
In making this determination, the Board
considered that regardless of his claim that
he was not a formal member of al Qaida, his
past involvement in jihadist activity to
include probably serving as one of Usama bin
4
Ladin’s most trusted facilitators and his
admitted abilities as a long-term facilitator
and fundraiser for extremist causes.
Additionally, detainee’s lack of remorse for
his extensive role in training and
facilitating large numbers of extremists,
continued habit of viewing certain persons and
countries as his enemies, and personal
attributes and beliefs that make him
susceptible to reengagement.
See Periodic Review Board, Unclassified Summary of Final
Determination for ISN 10016 (Mar. 5, 2020),
https://www.prs.mil/Portals/60/Documents/ISN10016/SubsequentHear
ing1/200305_UPR_ISN10016_SH1_FINAL_DETERMINATION_PRB.pdf. 3
Additionally, another Subsequent Full Review began in 2021; a
hearing was held in July 2021 and the final determination has
not yet been posted. See Periodic Review Secretariat, Subsequent
Full Review for ISN 10016, https://www.prs.mil/Review-
Information/Subsequent-Full-Review/ (last visited May 26, 2023).
On January 11, 2018, Petitioner and ten other detainees
jointly filed the instant motion. See Habeas Mot., ECF No. 488.
An identical motion was filed in each case, and Petitioners and
Respondents filed identical briefings in all cases. In August
2018, the motion was denied in one of the cases. See Ali v.
3 “The Court takes judicial notice of the
official government documents and other sources from
[DOD’s] government website as ‘sources whose accuracy cannot
reasonably be questioned.’” Humane Soc'y of United States v.
Animal & Plant Health Inspection Serv., 386 F. Supp. 3d 34, 40
n.2 (D.D.C. 2019)(quoting Fed. R. Evid. 201(b)(2)).
5
Trump, 317 F. Supp. 3d 480 (2018). That denial was affirmed by
the Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”), see Ali, 959 F.3d 364; and the petition for the writ
of certiorari was denied, Ali v. Biden, 141 S.Ct. 2657 (2021).
II. Analysis
A. Petitioner’s Detention Does Not Violate Due Process
Petitioner argues that “[t]he Due Process Clause of the
Constitution applies at Guantanamo and places substantive
limitations on executive detention of the kind at issue here,
including a durational limitation that compels relief regardless
of the original basis for detention.” Habeas Mot., ECF No. 488
at 16. The D.C. Cir has rejected this same argument as
“sweep[ing] too far,” Ali v. Trump, 959 F.3d 364, 368 (D.C. Cir.
2020); providing the following guidance regarding the
applicability of Due Process Clause protections to Guantanamo
detainees:
The Supreme Court's decision in Boumediene v.
Bush, 553 U.S. 723, 128 S.Ct. 2229, 171
L.Ed.2d 41 (2008), unequivocally held that
Guantanamo Bay detainees must be afforded
those procedures necessary to ensure
“meaningful review” of the lawfulness of their
detention, id. at 783, 128 S.Ct. 2229. See
Qassim, 927 F.3d at 524. In particular,
detainees are constitutionally entitled to
“those ‘procedural protections’ ” that are
“necessary (i) to ‘rebut the factual basis for
the Government's assertion that [the detainee]
is an enemy combatant’; (ii) to give the
prisoner ‘a meaningful opportunity to
demonstrate that he is being held pursuant to
6
the erroneous application or interpretation of
relevant law’; and (iii) to create a record
that will support ‘meaningful review’” by
federal courts. Id. at 528–529 (formatting
modified) (quoting Boumediene, 553 U.S. at
779, 783, 128 S.Ct. 2229).
In identifying those constitutional
protections for detainees, the Supreme Court
pointed both to the Constitution's guarantee
of habeas corpus, U.S. CONST. art. I, § 9, cl.
2 (commonly known as the Suspension Clause),
and the Due Process Clause. Boumediene, 553
U.S. at 771–792, 128 S.Ct. 2229; see Qassim,
927 F.3d at 529.
Circuit precedent has not yet comprehensively
resolved which “constitutional procedural
protections apply to the adjudication of
detainee habeas corpus petitions,” and whether
those “rights are housed” in the Due Process
Clause, the Suspension Clause, or both.
Qassim, 927 F.3d at 530. In this case, Ali has
chosen not to ground any of his claims for
procedural protections in the Suspension
Clause. So that issue is not before us.
Instead, Ali's main argument puts all of his
eggs in one constitutional basket. He argues
that the Due Process Clause's procedural and
substantive requirements apply wholesale,
without any qualifications, to habeas corpus
petitions filed by all Guantanamo detainees.
Ali, 959 F.3d at 368. 4
4 Accordingly, the Court need not reach the parties’ arguments
regarding whether or not the Due Process Clause applies to
Guantanamo detainees. The Ali Court rejected “[tt]he district
court’s decision that the Due Process Clause is categorically
inapplicable to detainees at Guantanamo Bay . . . .” Ali, 959
F.3d at 368. And the D.C. Circuit has yet to decide whether the
Due Process Clause squarely applies to Guantanamo detainees,
recently determining that “deciding the applicability of the Due
Process Clause is unnecessary here, where, as explained below,
we find that the habeas procedures [Petitioner] received
actually satisfy what the Clause would require.” Al-Hela v.
Biden, 66 F.4th 217, 227 (D.C. Cir. 2023).
7
In rejecting the same due process argument made in the
instant motion, the D.C. Circuit stated:
For starters, the argument is in substantial
tension with the Supreme Court's more
calibrated approach in Boumediene, which tied
the constitutional protections afforded to
Guantanamo Bay detainees’ habeas corpus
proceedings to their role in vindicating the
constitutional right to the Great Writ and the
judicial role in checking Executive Branch
overreach. See 553 U.S. at 798, 128 S.Ct. 2229
(“[P]etitioners may invoke the fundamental
procedural protections of habeas corpus.”);
id. at 779–783, 793–795, 128 S.Ct. 2229. The
court stressed that the scope of
constitutional protections must “turn on
objective factors and practical concerns, not
formalism.” Id. at 764, 128 S.Ct. 2229. Yet
Ali argues for only a formal and unyielding
line.
Ali's argument that the Due Process Clause's
substantive protections apply with full force
to all detainees at Guantanamo Bay also runs
crosswise with this court's decision in
Kiyemba v. Obama, which held that, for
Guantanamo Bay detainees, the claimed
substantive due process right to release into
the United States had no purchase because a
noncitizen who seeks admission to the United
States generally “may not do so under any
claim of right.” 555 F.3d 1022, 1027 (D.C.
Cir. 2009), vacated and remanded, 559 U.S.
131, 130 S.Ct. 1235, 175 L.Ed.2d 1070,
reinstated in relevant part, 605 F.3d 1046,
1047– 1048 (D.C. Cir. 2010). That case refutes
Ali's claim that the substantive protections
of the Due Process Clause apply across the
board to all Guantanamo Bay detainees. And Ali
has abstained from pressing any more gradated
or as-applied Due Process Clause argument
here.
In sum, Boumediene and Qassim teach that the
8
determination of what constitutional
procedural protections govern the
adjudication of habeas corpus petitions from
Guantanamo detainees should be analyzed on an
issue-by issue basis, applying Boumediene’s
functional approach. The type of sweeping and
global application asserted by Ali fails to
account for the unique context and balancing
of interests that Boumediene requires when
reviewing the detention of foreign nationals
captured during ongoing hostilities.
Id. at 369.
Accordingly, the Court will apply a functional approach
here. Petitioner argues that his “continuing detention violates
[his] fundamental due process rights” because “detention without
charge or trial of this length, which is still without
foreseeable end and potentially permanent, violates the Due
Process Clause’s durational limits on detention; under President
Trump’s animus-driven decree to prevent the release of any
detainee regardless of individual circumstances or bona fide
security assessments renders such prolonged detention arbitrary
and unlawfully punitive.” Habeas Mot., ECF No. 488 at 21. 5
5 The Court does not reach the argument that detention is not
justified by a preponderance of the evidence standard because
Petitioner’s habeas proceeding has not yet been conducted.
Habeas Mot., ECF No. 488 at 23-26. The deadline for Petitioner’s
traverse has been stayed pending Respondent’s production of
discovery requested by Petitioner. See, e.g., Minute Order (July
12, 2022). The Court notes, however, that the D.C. Circuit
recently ruled that the application of the preponderance of the
evidence standard in a Guantanamo habeas proceeding did not
violate due process. See Al-Hela, 66 F.4th 217. The Court also
need not address the argument regarding the two petitioners
approved for transfer. Id. at 26-30.
9
The D.C. Circuit rejected both arguments in Ali. “Among
other things, the substantive component of the Due Process
Clause ‘bars certain arbitrary, wrongful government actions
regardless of the fairness of the procedures used to implement
them.’” Ali, 959 F.3d at 369 (quoting Foucha v. Louisiana, 504
U.S. 71, 80, 112 S.Ct. 1780, 118 L. Ed. 2d 437 (1992) (quoting
Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L. Ed.
2d 100 (1990)). “But only government action that is ‘so
egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience’ qualifies as arbitrary for the
purposes of substantive due process.” Id. at 369-370 (quoting
Estate of Phillips v. District of Columbia, 455 F.3d 397, 403
(D.C. Cir. 2006) (quoting County of Sacramento v. Lewis, 523
U.S. 833, 848 n.8, 118 S.Ct. 1708, 140 L. Ed. 2d 1043 (1998))).
As in Ali, here, Petitioner’s “detention is long because
the armed conflict out of which it arises has been long,
continuing to the present day.” Id. at 370; see also Husayn,
2022 WL 2093067 at *4-*6 (explaining that hostilities against al
Qaeda, and associated forces remain ongoing in Afghanistan and
elsewhere). Furthermore, the hostilities authorized by the AUMF
are ongoing. As indicated supra, this Court recently denied
another of Petitioner’s motions—Petitioner’s Motion for an Order
Requiring His Immediate Release and Repatriation—concluding that
10
Petitioner’s continued detention is authorized by the AUMF. See
id. at *2-*4.
Petitioner’s claim that his detention is untethered to his
individual circumstances or a bona fide security assessment is
without merit. The information in the record indicates that the
PRB has specifically reviewed Petitioner’s detention “to
determine whether his continued detention remains necessary to
protect against a significant threat to the United States” four
times and that another Subsequent Full Review is in process at
this time. With regard to the most recently completed review,
the PRB determined that continued detention “remains necessary
to protect against a continuing significant threat to the United
States.” Periodic Review Board, Unclassified Summary of Final
Determination for ISN 10016 (Mar. 5, 2020),
https://www.prs.mil/Portals/60/Documents/ISN10016/SubsequentHear
ing1/200305_UPR_ISN10016_SH1_FINAL_DETERMINATION_PRB.pdf. In
reaching this conclusion, the PRB acknowledged Petitioner’s
claim that he was not a formal member of al Qaida, but
nonetheless concluded his continued detention necessary based on
“his past involvement in jihadist activity to include probably
serving as one of Usama bin Ladin’s most trusted facilitators
and his admitted abilities as a long-term facilitator and
fundraiser for extremist causes.” Id. The PRB also took into
consideration Petitioner’s “lack of remorse for his extensive
11
role in training and facilitating large numbers of extremists,
continued habit of viewing certain persons and countries as his
enemies, and personal attributes and beliefs that make him
susceptible to reengagement.” Id.
B. The Court Rejects Petitioner’s Remaining Arguments
Petitioner argues that “the Court should construe the AUMF
narrowly to limit the duration of Petitioners’ detention in
order to avoid the serious constitutional concerns that would be
raised by a statute that authorizes such non-criminal detention
potentially for the remainder of their lives.” Habeas Mot., ECF
No. 488 at 31. In Ali, the D.C. Circuit observed that “because
the specific constitutional claims that Ali presses have already
been considered and rejected by circuit precedent, there are no
constitutional rulings to be avoided.” Ali, 959 F.3d at 373.
Accordingly, this Court need not address whether the AUMF should
be construed to limit the duration of detentions.
Petitioner also argues that “the Court should grant relief
because whatever traditional law-of-war detention authority may
have existed at the time of Petitioner’s capture and initial
detention has by now unraveled, 15 years after the fact.” Habeas
Mot., ECF No. 488 at 35. However, the Court rejected the
arguments Petitioner makes here in its decision on the motion
for immediate release. See generally Husayn, 2022 WL 2093067.
12
Petitioner’s final argument—that the Court should exercise
its broad, common law habeas authority to grant relief—ignores
the complex body of law that has developed to ensure that non-
citizens detained at Guantanamo have a “meaningful opportunity”
to contest their detention. Boumediene, 553 U.S. at 779. Such
law includes binding circuit precedent, which of course, this
Court cannot disregard.
III. Conclusion and Order
For the reasons stated above, it is hereby
ORDERED that Petitioner’s Motion for Order Granting Writ of
Habeas Corpus, ECF No. 488, is DENIED.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
May 26, 2023
13