UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA F x L E D
) JUL - 7 2014
ADIL BIN MUHAMMED AL WIRGHI’ § Clark, U.S. District & Bankruptcy
Petitioner, ) Cuu\\ts for the Dlstrlct of Co|umb|a
v. § Civil No. 05-1497 (RCL)
BARACK OBAMA, et al., §
Respondents. g
)

MEMORANDUM OPINION

Petitioner Adil Bin Muhammad Al Wirghi has been detained as an enemy belligerent at
the detention facility at Guantanamo Bay, Cuba for more than eleven years. Two Presidents
have cleared petitioner for transfer from Guantanamo; however, the complex diplomatic
negotiations to effectuate that transfer have been ongoing for six years. The petitioner has
moved this Court for an order of release. Upon consideration of that motion [206] and the
government’s Opposition thereto [208], and for the reasons stated in Ahjam v. Obama, Civ. No.
09-745, 2014 WL 1399021 (D.D.C. Apr. 8, 2014), the Court DENlES the petitioner’s motion.

I. BAC KGRO UND

Following the events of September ll, 2001 , Congress granted the President authority "to
use all necessary and appropriate force against those . . . persons he determines planned,
authon`zed, committed, or aided the terrorist attacks . . . in order to prevent any future acts of
intemational terrorism against the United States by such . . . persons." Authorization for Use of
Military Force, Pub. L. 107-40, § 2(a), l 15 Stat 224 (2001) [hereinafter AUMF]. The President’s

authority under the AUMF is limited by the privilege of habeas corpus, which "entitles the

prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the
erroneous application or interpretation of relevant law." Boumediene v. Bush, 553 U.S. 723, 779
(2008) (intemal citations and quotations omitted). In addition to this judicial check on the
President’s detention authority, the two most recent Presidents have, in their own discretion,
determined that continued detention of certain detainees is not in the national security or foreign
policy interests of the United States.

President George W. Bush established Adrr1inistrative Review Boards to assess "annually
the need to continue to detain each enemy combatant." Boumediene, 553 U.S. at 821 (Roberts,
C.J., dissenting). Each assessment resulted in a recommendation to "release, transfer, or
continue to detain each enemy combatant." Memorandum for Secretaries of the Military
Departments, Revised Implementation of Administrative Review Procedures for Enemy
Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba, available at
http://www.defense.gov/news/Aug2006/d20060809ARBProceduresMemo.pdf (last visited May
l6, 2014). Significantly, a decision to release or transfer a detainee "does not equate to a
determination that [the detainee] is not an enemy combatant, nor is it a determination that [the
detainee] does not pose a threat to the United States or its allies." Pet’r Mot. for Order of
Release, ECF No. 206, Ex l.

President Barack Obama replaced the Administrative Review Boards with the
Guantanamo Review Task Force ("Task Force"), which was charged with determining the
propriety of transfer, release, or criminal prosecution for each Guantanamo detainee. Exec.
Order No. 13492, 74 Fed. Reg. 4897, 4899 (Jan. 22, 2009). On January 22, 2010, the Task Force
published its final report identifying 126 detainees as candidates for transfer to receiving

countries. Guantanamo Review Task Force, Final Report, at ii (2010), available at

http://www.justice.gov/ag/guantanamo-review-final-report.pdf (last visited May l6, 2014). The
Report warned that the transfer process involves "lengthy and complicated" diplomatic
negotiations and "often has been influenced by political and other issues in potential resettlement
countries (e.g., public perceptions of current and past U.S. detention policies), third-country
views (and sometimes pressure) with respect to detainee resettlement, and public views of the
Guantanamo detention facility generally." Id. at 27.

A. Petitioner’s Habeas Petition & Transfer Negotiations

Mr. Al Wirghi petitioned this Court for a writ of habeas corpus challenging the legality of
his detention in 2005. In 2008, an Administrative Review Board cleared the petitioner for
transfer, and the Task Force made the same determination in 2009. ln May 2009, hopeiill that
his transfer was forthcoming, the petitioner joined with the government in a motion to stay the
habeas proceedings. Joint Mot. for Stay, ECF No. 151. The Court granted that motion. The
petitioner has not requested that the court reopen those proceedings to examine the legality of his
detention under the AUMF. Rather, the petitioner filed the present motion for an order of
release, arguing that, in light of his clearance for transfer, his detention (l) violates due process
because it is arbitrary and indefmite, and (2) is not permitted by the AUMF because the
govemment has acknowledged that he no longer poses a threat to the United States. For the
reasons stated below, the Court disagrees.

II. DISCUSSION

The Court’s decision in this matter is controlled by its recent opinion in Ahjam v. Obama,
Civ. No. 09-745, 2014 WL 1399021 (D.D.C. Apr. 8, 2014). There, the Court held that a
Guantanamo detainee cleared for transfer by the Task Force lacked standing to challenge the
2013 and 2014 National Defense Authorization Acts, which imposed prerequisites for transfers,

as unconstitutional interferences by Congress into the President’s control of foreign affairs.

3

Standing requires invasion of a judicially cognizable interest, and lawfully detained enemy
belligerents have no such interest in whether or how the President exercises his discretion to
transfer detainees. As such, although Mr. Al Wirghi raises a different substantive challenge to
his detention_namely, a violation of the Due Process Clause rather than the unconstitutional
infringement on the President’s control of foreign affairs alleged in Ahjam_he lacks standing
for the same reason. The Court therefore denies the petitioner’s motion for the reasons stated in
Ahjam. For the sake of comprehensiveness, however, the Court will briefly address the two main
arguments raised by the petitioner’s motion.

First, Mr. Al Wirghi’s detention is not unconstitutionally indefinite. Barring a judicial or
Executive finding that his detention is inconsistent with the AUMF, the petitioner may be
properly detained "for the duration of the relevant conflict." Hamdi v. Rumsfeld, 542 U.S. 507,
521 (2004) (plurality opinion); see also Ali v. Obama, 736 F.3d 542, 544 (D.C. Cir. 2013)
("Detention under the AUMF may last for the duration of hostilities."). And, as recently as
December of 2013, the Court of Appeals held that

The war against al Qaeda, the Taliban, and associated forces obviously

continues. Congress and the President may choose to make long-terrn

military detention subject to dif`f`erent, higher standards. Indeed, for many

years now, under the direction of two Presidents, the Executive Branch

has unilaterally conducted periodic reviews and released or transferred to

foreign countries a large number_in fact, the vast majority-of

Guantanamo detainees. . . . But absent a statute that imposes a time limit

or creates a sliding-scale standard that becomes more stringent over time,

it is not the Judiciary's proper role to devise a novel detention standard that
varies with the length of detention.

Ali, 736 F.3d at 552.

Second, the petitioner’s contention that his detention is "arbitrary because the
govemment concedes it no longer needs to hold him," Pet’r Mot. 10, is false. The government

has made no such concession. Indeed, the email that notified petitioner of his clearance for

4

transfer by the Administrative Review Board stated that the decision "does not equate to a
determination that [Al Wirghi] is not an enemy combatant, nor is it a determination that he does
not pose a threat to the United States." Pet’r Mot., Ex. 1. Likewise, the Task Force Report
emphasized that "that a decision to approve a detainee for transfer does not reflect a decision that
the detainee poses no threat or no risk of recidivism," but instead represents a judgment that "that

any threat posed by the detainee can be sufficiently mitigated through feasible and appropriate

security measures in the receiving country." Task Force Report at l7. -

For the foregoing reasons, the Court DENIES the petitioner’s motion for an order of

release.

A separate Order consistent with this Memorandum Opinion shall issue this date.

l/Zl/'?[ gen /‘»%Z?Z

bare RoYcYE c. LAMBERTH
Judge t
United States District Court for the District of Columbia

