                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA

                                    )
HAMID AL RAZAK,                     )
                  Petitioner,       )
                                    )
            v.                      )         Case No. 1:05-cv-1601 {GK)
                                    )
BARACK H. OBAMA, et al.,            )
               Respondents          )
~~~~~~~~~~~~~~~~->

                            MEMORANDUM OPINION

      Petitioner Haji Hamdullah1 has been detained as a prisoner of

war by the United States since his capture in 2003. Mr. Hamdullah

argues that active hostilities in Afghanistan have ceased and that

the United States is therefore obligated under the Third Geneva

Convention to release him immediately.                Respondents counter that

the Authorization for Use of Military Force continues to authorize

Mr.   Hamdullah's    detention     because      the    United   States      remains

engaged in active hostilities in Afghanistan.

      This matter is before the Court on Petitioner's Motion to

Grant Petition for Writ of Habeas Corpus ("Motion")              [Dkt. No. 301].

Upon consideration of Petitioner's Motion, Respondents' Opposition

("Opp'n")    [Dkt.   No.   306],   Petitioner's         Reply   ("Reply")     [Dkt.

No. 308],   and the entire record herein,             and for the reasons set

forth below, Petitioner's Motion shall be denied.


1 The name on the docket--Hamid Al Razak--is a result of an error
on the initial habeas filing, and Petitioner asserts that his
correct name is Haji Hamdullah. Mot. at 1 n. 1.

                                        1 -
I .   BACKGROUND

      A.   Mr. Hamdullah

      Mr. Hamdullah is an Afghan citizen who was captured by Afghan

National Army forces in July 2003 in Afghanistan. Mot. at 2; Opp'n

at 3. He was subsequently transferred to the custody of the United

States and detained at Naval Station Guantanamo Bay. Mot. at 2;

Opp'n at 3. He has been detained at Guantanamo Bay for over 11

years. Mot. at 2-3.

      Mr. Hamdullah filed a petition for a writ of habeas corpus in

2005, challenging the legality of his detention. See Petition for

Writ of Habeas Corpus          [Dkt.    No.   1] . A Combatant Status Review

Tribunal   determined     in     2006    that   Mr.    Hamdullah    was    properly

designated as an enemy combatant because of his alleged affiliation

with Hezb-e-Islami      Gulbuddin        ( "HIG") .   See   Review of     Combatant

Status Review Tribunal for Detainee ISN #1119 [Dkt. No. 42-1].

      On October   8,    2015,    Petitioner filed          the present Motion.

Respondents   filed     their    Opposition      on December       14,    2015,   and

Petitioner filed his Reply on January 8, 2016. Respondents filed

a Notice of Supplemental Authority on March 1, 2016 [Dkt. No. 309].

Petitioner similarly filed a Notice of Supplemental Authority on

March 11, 2016 [Dkt. No. 310], and Respondents filed a Response to

Petitioner's Notice of Supplemental Authority on March 16,                        2016

[Dkt. No. 311] .




                                        - 2 -
        B.      The War in Afghanistan

        In the immediate aftermath of the attacks of September 11,

2001,    Congress passed the Authorization for the Use of Military

Force ("AUMF"). Pub. L. No. 107-40, 115 Stat 224 (2001). In Hamdi

v. Rumsfeld, a plurality of the Supreme Court ruled that Congress's

"grant of authority for               the use of      'necessary and appropriate

force'" in the AUMF "include[s] the authority to detain [prisoners

of war]      for the duration of the relevant conflict." Hamdi,                     542

U.S. 507, 521 (2004)           (plurality opinion); see also Aamer v. Obama,

742 F.3d 1023, 1041 (D.C. Cir. 2014)                ("[T]his court has repeatedly

held     that      under   the   [AUMF] ,    individuals    may    be   detained     at

Guantanamo so long as they are determined to have been part of Al

Qaeda,       the    Taliban,     or    associated     forces,     and   so   long    as

hostilities are ongoing.").

        Beginning in October 2001, U.S. and coalition forces began a

military campaign in Afghanistan that consisted of air, land, and

sea forces.        Opp'n at 5     (citing National Commission on Terrorist

Attacks Upon the United States, The 9/11 Commission Report at 337-

38   (2004)). The military campaign drove the Taliban from control

over much of Afghanistan by December 2001, "but Taliban, al-Qa'ida,

and associated forces continued to operate and conduct attacks in

Afghanistan."        Id.   From 2001 until          the end of 2014,     the United

States led a large-scale combat mission in Afghanistan known as

Operation Enduring Freedom. Id.               (citing Opp'n Ex. 4, Statement by


                                            - 3 -
Secretary of Defense Chuck Hagel on Operation Enduring Freedom and

Operation       Freedom's    Sentinel           at       1     (Dec.    28,         2014)     ("Hagel

Statement")       [Dkt. No. 306-2]).

        Secretary Hagel stated that the close of 2014 would bring to

an end the        "combat mission in Afghanistan."                          Id.     The follow-up

mission,      known as Operation Freedom's Sentinel,                              began in 2015.

Operation Freedom's Sentinel has two purposes:                                (1)      to work with

allies and partners "to continue training, advising, and assisting

Afghan security forces," and               ( 2)      to continue the United States'

"counterterrorism mission against                        the    remnants          of   Al-Qaeda      to

ensure     that   Afghanistan       is    never again used                   to     stage     attacks

against our homeland." Id.

        President Obama made similar remarks in a May 2014 speech

regarding the end of the combat mission and the Afghan people's

assumption of          responsibility          for       securing      their        country.       Mot.

Ex. 8,     President      Barack    Obama,          Statement          by    the       President     on

Afghanistan (May 27,         2014)       [Dkt. No.           301-4].        He stated that the

United States would "bring America's longest war to a responsible

end,"    in    2014,    noting     that    the       number       of    American            troops    in

Afghanistan would be under 10,000 by the beginning of 2015, down

from 180,000 when he took office. Id. at 1,- 3. He continued, "this

is how wars end in the 21st century- -not through signing ceremonies,

but through decisive blows against our adversaries, transitions to

elected       governments,       security         forces        who     take        the     lead     and


                                           -    4    -
ultimately full responsibility." Id. at 3. In his January 20, 2015

State      of   the   Union   address,       President   Obama    reiterated   his

statement that the "combat mission in Afghanistan is over." Mot.

Ex. 11, President Barack Obama, State of the Union Address (Jan.

20, 2015)       [Dkt. No. 301-4].

        On September 30,       2014,     the United States and Afghanistan

executed a Bilateral Security Agreement. Se.e Mot. at 6-7                 (citing

Ex.   2,    Security and Defense         Cooperation Agreement       between the

Islamic Republic of Afghanistan and the United States of America

("Bilateral Security Agreement")              [Dkt. No. 301-4]). The Bilateral

Security Agreement's stated purpose is to foster close cooperation

between the United States and Afghanistan to "strengthen security

and stability in Afghanistan,                counter terrorism,    contribute to

regional and international peace and stability,                  and enhance the

ability of Afghanistan to deter [threats against it]." Bilateral

Security Agreement,       art.   2   ~   1. The Agreement denies the United

States the ability to conduct combat operations in Afghanistan

without Afghanistan's agreement, and lays out the United States'

role in undertaking "supporting activities." Id. art. 2 ~ 2.

II.     LEGAL STANDARD

      A.        AUMF Detention

Per the terms of the AUMF, the President

      is authorized to use all necessary and appropriate force
      against those nations, organizations, or persons he
      determines planned, authorized, committed, or aided the


                                         -   5 -
        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.

Pub. L. No. 107-40, §2(a).

        The AUMF sets no expiration date and is in fact silent

on the issue of when or how it expires. The Supreme Court and

Congress however have both provided guidance on the duration

of the AUMF. As discussed above, a plurality of the Supreme

Court in Hamdi held that the AUMF granted the President the

authority           to     detain        "for      the    duration       of   the     relevant

conflict."           542     U.S.            at   521.     In     the    National      Defense

Authorization Act for Fiscal Year 2012                                  ( "NDAA"),    Congress

reaffirmed the provisions of the AUMF and the President's

authority           to     detain        covered         persons    "until     the     end   of

hostilities."             Pub.     L.    No.      112-81,       § 102l(c) (1),       125 Stat.

1298,        1562        (2011).        In    2014,      our    Court    of   Appeals      also

reaffirmed that under the AUMF, "individuals may be detained

at Guant&namo so long as they are determined to have been

part of Al Qaeda, the Taliban, or associated forces, and so

long as hostilities are ongoing." Aamer, 742 F.3d at 1041.

        B.      Geneva Convention

        The    Third Geneva Convention was                          ratified as        a   treaty by

Congress and the President in 1955. See Geneva Convention (III)

Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6


                                                      - 6 -
U.S.T. 3316, 75 U.N.T.S. 135 ("Third Geneva Convention"). The first

paragraph of Article 118 of the Third Geneva Convention requires

that   a    prisoner     of    war     be   released      "without       delay    after   the

cessation of active hostilities." Id. art. 118.                       While Article 118

does not explicitly define "cessation of active hostilities," the

second      paragraph     does        contemplate       that     cessation        of   active

hostilities might not always be reached through a formal agreement

or peace treaty. Id.               ("In the absence of stipulations [regarding

release]     in any agreement concluded between the Parties to the

conflict with a view to the cessation of hostilities, or failing

any such agreement,            each of       the Detaining Powers shall                itself

establish and execute without delay a                        plan of repatriation in

conformity      with     the        principle      laid      down    in    the     foregoing

paragraph.")

       C.     Judicial Review

       Petitioner's       Petition          raises     two     issues:        whether

"active hostilities" are considered to have ended, · and who

makes that determination. Both parties appear to agree that

the Court should rely on the President's decision, but differ

as to how to interpret President Obama's position. Petitioner

relies on speeches made by the President declaring an end to

combat      operations        in    Afghanistan,       Mot.     at   21-22,       while

Respondents     rely on the            assertions      by indi victuals          in the




                                             -   7 -
political branches that active hostilities continue. Opp'n at

31-32.

        While     entitled       to     some       deference,          the       President's

position is not dispositive. Our Court of Appeals has stated

that,     under        separation           of     powers       principles,           " [t]   he

determination of when hostilities have ceased is a political

decision,       and we defer to the Executive's opinion on that

matter,     at     least     in       the        absence       of     an     authoritative

congressional declaration purporting to terminate the war."

Al Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010) (citing

Ludecke v. Watkins, 335 U.S. 160, 168-70 & n.13 (1948)). But,

the     Hamdi     plurality        recognized            that        deference       to     the

Executive must have limits. Hamdi, 542 U.S. at 530 ("history

and     common    sense     teach       us       that    an    unchecked           system     of

detention        carries     the      potential          to    become        a    means     for

oppression       and     abuse     of    others          who    do    not        present      [an

immediate threat to national security]").

        As Judge Lamberth noted in Al Warafi v. Obama, 2 the Hamdi

Court    held     that     the AUMF' s           detention authorization turns




2 On March 4, 2016, the United States Court of Appeals for the
District of Columbia vacated Judge Lamberth's opinion and order in
Al Waraf i and remanded with instructions to dismiss the case as
moot. Al-Wrafie v. Obama, No. 15-5266. The case was mooted by the
petitioner's subsequent transfer from the United States' custody.
Despite this, the case remains "on the books" and retains its
persuasive value. See Nat' 1 Black Police Ass' n v. District of

                                                 - 8 -
partly on whether "the record establishes that United States

troops are still involved in active combat in Afghanistan."

Al Warafi v.          Obama,     No.    09-CV-2368,      2015 WL 4600420 at *3

(D.D.C. July 30, 2015)             (emphasis added in Al Warafi)             (quoting

Hamdi,       542    U.S.   at    521) .   As    Judge    Lamberth     indicated,       a

"record" implies review by a court, and suggests that Hamdi

stands for the proposition that a court can and must examine

the issue of whether active combat continues. Id.

        The Court need not fully address Respondents' separation

of powers argument at this time because the Court finds that

the President has not declared the end of active hostilities

and because the Court agrees with Respondents' position that

active hostilities continue in Afghanistan.

        D.     Standard of Review

        The Government bears the burden of proving by a preponderance

of the evidence that Mr. Hamdullah is lawfully detained. See In re

Guantanamo Bay Detainee Litig., Misc. No. 08-442, CMO §II.A (Nov.

6,   2008)         ("The   government      bears       the   burden     of   proving       by   a

preponderance of the evidence that the petitioner's detention is

lawful,")          (citing Boumediene v.          Bush,      553 U.S.    723,    787   (2008)

("The extent of the showing required of the Government in these

cases    is    a    matter      to be     determined.")).       The D.C.        Circuit has



Columbia, 108 F.3d 346, 354 (D.C. Cir. 1997); Rabbani v. Obama, 76
F. Supp. 3d 21, 24-25 n.3 (D.D.C. 2014).

                                               - 9 -
affirmed     that      "a       preponderance        of    the    evidence        standard       is

constitutional in evaluating a habeas petition from a detainee

held at Guantanamo Bay, Cuba." Awad v. Obama, 608 F.3d 1, 10 (D.C.

Cir. 2010); see also Al Odah v. United States, 611 F.3d 8, 13 (D.C.

Cir. 2010), cert. denied 131 S. Ct. 1812 (2011)                           ("It is now well-

settled    law    that      a    preponderance        of    the    evidence       standard       is

constitutional in considering a habeas petition from an individual

detained        pursuant         to    authority          granted     by     the        AUMF . " ) .

Accordingly, the burden of proof remains with the Government.

III. ANALYSIS

     A.      Cessation of Active Hostilities

     The crux of the Parties' disagreement is whether detention is

authorized       for     the      duration      of    "active       combat"       or      "active

hostilities."       Compare Hamdi,             542   U.S.    at     521    ("If    the     record

establishes that United States troops are still involved in active

combat in Afghanistan, those detentions are part of the exercise

of 'necessary and appropriate force'                             .") with Hamdi, 542 U.S.

at 520 ("It is a clearly established principle of the law of war

that detention may last no longer than active hostilities."); see

also Third Geneva Convention, Art. 118                      (prisoners of war must be

released "after the cessation of active hostilities").

     The    "cessation of             active    hostilities"         standard was            first

adopted    in    the    1949      Geneva     Conventions          following       the    delayed

repatriation of prisoners of war in earlier armed conflicts. See


                                           - 10 -
3 Int'l Comm. of Red Cross, Commentary: Geneva Convention Relative

to the Treatment of Prisoners of War,                 541-43    (J. Pictet gen. ed.

1960)    ("Third Convention Commentary") .

        The two predecessor multilateral law-of-war treaties to the

1949 Geneva Conventions required repatriation of prisoners of war

only "after the conclusion of peace." See id. at 541. Repatriation

delays arose after World Wars I and II due to a substantial gap in

time between the cessation of active hostilities and the signing

of formal peace treaties. Id. The "cessation of active hostilities"

requirement       sought    to     correct    this     problem,     thereby   making

repatriation no       longer contingent on a             formal    peace accord or

political agreement between the combatants. Id. at 540, 543, 546-

47.

        In light of this history, Petitioner correctly interprets the

Third Geneva Convention's            "cessation of active hostilities"             so

that final peace treaties are no longer a prerequisite to mandatory

release    of prisoners      of war.       Based on that        change,    Petitioner

argues     that    the     Third     Geneva        Convention     contemplates    the

possibility that some degree of conflict might continue even after

the core of the fighting has subsided. Mot. at 11.

        Petitioner    argues       that    cessation     of     active    hostilities

requires only an end to active combat.                   Mot.    at 13.    Petitioner

reaches this conclusion by comparing the language of the Third

Geneva Convention with language in Articles 6 and 133 of the Fourth


                                          - 11 -
Geneva Convention. See Mot. at 13, 15-17 (citing Geneva Convention

(IV)   Re la ti ve to the Protection of Civilian Persons in Time of

War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 ("Fourth Geneva

Convention")).

       Article 133 of       the Fourth Geneva Convention addresses the

internment     of   civilians        in    wartime   and         provides     that     such

internment "shall cease as soon as possible after the close of

hostilities." Fourth Geneva Convention art.                      133. Relying on the

Fourth Convention's Commentary,              Petitioner attempts to show that

"close of hostilities" could be a point in time that might occur

after "cessation of active hostilities."

       The Court is not convinced. Indeed, the Commentary Petitioner

cites acknowledges that the provisions are similar and "should be

understood    in    the    same   sense."      4   Int'l     Comm.       of   Red    Cross,

Commentary:     Geneva      Convention       Relative       to    the    Protection      of

Civilian Persons in Time of War, 514-15 (J. Pictet gen. ed. 1960)

("Fourth Convention Commentary").

       Pe ti ti oner also    looks    to Article        6   of     the   Fourth Geneva

Convention,    which states that application of the Fourth Geneva

Convention    "shall      cease on the        close of military operations."

Fourth Geneva Convention,         art.      6. The phrase "close of military

operations" was understood to mean "the final end of all fighting




                                          - 12 -
between all those concerned." 3 Fourth Convention Commentary at 62.

The   Court    agrees    with   Petitioner       that    "cessation     of   active

hostilities" is distinct from "close of military operations," and

that active hostilities can cease prior to the close of military

operations.

      This distinction is consistent with the differing purposes of

Article 6 (defining the period of time in which the Fourth Geneva

Convention, in its entirety, applies) and Article 118 (focusing on

detention specifically). But, it does not necessarily follow that

"cessation of active hostilities" therefore requires only an end

to combat operations, as Petitioner argues. See Mot. at 17.

      For    the   foregoing    reasons,   the    Court     concludes    that    the

appropriate standard is cessation of active hostilities and that

active     hostilities   can    continue   after        combat   operations     have

ceased. But, cessation of active hostilities is not so demanding

a standard that it requires total peace, signed peace agreements,

or an end to all fighting.

      B.      Mr. Hamdullah's Detention Under the AUMF

      Next, the Court looks to whether active hostilities have, in

fact, ceased. Petitioner relies heavily on the Bilateral Security

Agreement and the President's speeches regarding the end of the


3 The main purpose of this statement was to clarify that if more
than two nations are involved in a conflict, the Fourth Convention
only ceases to apply after the fighting stops between all parties,
not just some of the parties. Fourth Convention Commentary at 62.

                                     - 13 -
combat mission and war in Afghanistan in support of his argument

that active hostilities have ceased.

      Petitioner       relies      on    the      Bilateral    Security       Agreement's

requirement that the United States receive consent from the Afghan

government prior to conducting combat operations in Afghanistan as

evidence that combat operations have ceased. See Mot. at 7. Even

assuming this to be true,               the Court has already determined that

"active hostilities" are not the same as "combat operations. See

supra,   Section III .A.         The Bilateral Security Agreement                  is    not

evidence that active hostilities have ceased. Respondents add that

although     the   United    States        has     ended     its     combat   mission     in

Afghanistan, this shift does not mark the end of active hostilities

in   Afghanistan,      and       indeed,       fighting      still    continues.    Opp'n

at 8-11.

      Petitioner cites to speeches by the President, including his

2015 State of the Union Address and his May 2014 Statement on

Afghanistan, but notably, none of these statements discuss the end

of "active hostilities." See supra,                   4-5.    The end of the combat

mission is not synonymous with the end of active hostilities. See

supra, Section III.A. Indeed, the President has expressly stated

that active hostilities continue. See,                    ~,       Mot. Ex. 13, Letter

from the President: Six Month Consolidated War Powers Resolution

Report     (June 11,    2 015)     [Dkt.    No.    3 01-4]    (emphasis added)          ("The

United States currently remains in an armed conflict against al-


                                           - 14 -
Qa'ida, the Taliban, and associated forces, and active hostilities

against those groups remain ongoing.").

      Petitioners      point      to    greatly     reduced     troop    numbers     in

Afghanistan     as    evidence     of    cessation       of    active   hostilities.

Respondents counter that the continued presence of nearly 10,000

U.S. troops in Afghanistan is actually evidence of ongoing active

hostilities. Mot. at 19, 21; Opp'n at 16. While troop numbers alone

are   not   sufficient      to     determine       whether     active    hostilities

persist, see Mot. at 22, a United States presence of nearly 10,000

troops   certainly     supports        the   conclusion       that   ongoing    active

hostilities exist.

      Respondents provide numerous examples of ongoing conflict in

Afghanistan     and    instances        of   hostile      forces     engaging      U.S.

personnel. See Opp'n at 16-18. In 2015, there were over 360 "close

air   support    missions        carried     out    by   the    United    States     in

Afghanistan involving the release of at least one weapon." Id. at

16. Coalition forces conducted air strikes in southern Afghanistan

that destroyed a large al-Qaeda training camp and U.S. armed forces

continue to participate in certain ground operations. Id. at 17.

      "The Geneva Conventions require release and repatriation only

at the 'cessation of active hostilities.'" Al-Bihani, 590 F .3d at

874   (citing Third Geneva Convention art. 118). As this Court has

noted,   "The Supreme Court and the D. C.                Circuit have repeatedly

held that detention under the AUMF is lawful for the duration of


                                        - 15 -
active hostilities." Al Odah v. United States, 62 F. Supp. 3d 101,

114 (D.D.C. 2014). While what constitutes "active hostilities" has

never been clearly defined, Respondents have provided convincing

examples    of    ongoing   hostilities    in   Afghanistan.   Given   this

evidence,   combined with the deference accorded the Executive's

determination of when hostilities have ceased, the Court concludes

that active hostilities continue in Afghanistan. Mr. Hamdullah's

continued detention, therefore, is both authorized under the AUMF

and does not violate the Third Geneva Convention.

IV.   CONCLUSION

      For   the   foregoing   reasons,    Petitioner's   Motion   to   Grant

Petition for Writ of Habeas Corpus shall be denied. An Order shall

accompany this Memorandum Opinion.




March 29, 2016                            Glad}TSKsler
                                          United States District Judge




Copies to: attorneys on record via ECF




                                  - 16 -
