MOATH HAMZA AHMED AL-ALWI v. DONALD J. TRUMP, PRESIDENT, ET AL.
No. 17-5067
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 7, 2018
Argued March 20, 2018
Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00681)
Ramzi Kassem argued the cause for the appellant. John J. Connolly and Beth D. Jacob were with him on the briefs.
Jennifer R. Cowan was on brief for the amicus curiae Experts on International Law and Foreign Relations Law in support of initial hearing En Banc.
Sonia M. Carson, Attorney, United States Department of Justice, argued the cause for the appellees. Douglas N. Letter, Matthew M. Collette and Sonia K. McNeil, Attorneys, were on brief. Sharon Swingle, Attorney, entered an appearance.
Before: GARLAND, Chief Judge, and HENDERSON and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
I. Background
Shortly after the terrorist attacks of September 11, 2001, the Congress authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Ten years later, the Congress “affirm[ed] that the authority of the President to use all necessary and appropriate force pursuant to the AUMF “includes the authority” to “detain” persons who “w[ere] a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States.”
Al-Alwi is a Yemeni citizen who grew up in Saudi Arabia. According to the Government and uncontested in this appeal, Al-Alwi stayed in Taliban guesthouses, traveled to a Taliban-linked training camp to learn how to fire rifles and grenade launchers and joined a combat unit led by an al Qaeda official that fought alongside the Taliban. Al Alwi v. Obama (Al Alwi I), 653 F.3d 11, 13-14 (D.C. Cir. 2011); see id. at 20 (noting that Al-Alwi “did not deny” that “majority of the principal facts” Government asserted “were true” (internal quotation omitted)). Al-Alwi was captured in December 2001 and turned over to United States authorities, who detained him at Guantanamo Bay pursuant to the AUMF. Al-Alwi remains at Guantanamo Bay today.
In 2005, Al-Alwi petitioned for a writ of habeas corpus. The district court denied the petition after concluding that the Government‘s account of Al-Alwi‘s Taliban-related activities was supported by a preponderance of the evidence, thereby making Al-Alwi an enemy combatant who could lawfully be detained. Al Alwi v. Bush, 593 F. Supp. 2d 24, 27-29 (D.D.C. 2008). This Court affirmed. Al Alwi I, 653 F.3d at 15-20.
In 2009, the President established an intra-branch process to “review... the factual and legal bases for the continued detention of all individuals” held at Guantanamo Bay. Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities,
In 2015, Al-Alwi filed a second petition for a writ of habeas corpus, which is the subject of this appeal. Al-Alwi did not challenge the district court‘s earlier determination that he remains an enemy combatant. Instead, Al-Alwi alleged that the conflict in Afghanistan that resulted in his detention had ended and therefore the United States “no longer [had] any lawful basis” to detain him. JA 11.
The district court denied the petition. Al-Alwi v. Trump, 236 F. Supp. 3d 417 (D.D.C. 2017). This appeal followed.
II. Analysis
On appeal from denial of a habeas petition, we review the “district court‘s
A. Authority to detain has not unraveled
The Congress‘s “grant of authority” in the AUMF “for the use of ‘necessary and appropriate force,‘” the United States Supreme Court has held, authorizes detention of enemy combatants “for the duration of the particular conflict in which they were captured.” Hamdi v. Rumsfeld, 542 U.S. 507, 518, 521 (2004) (plurality opinion) (quoting AUMF); accord id. at 579 (Thomas, J., dissenting) (“The Executive Branch ... has determined that [petitioner] is an enemy combatant and should be detained. This detention falls squarely within the Federal Government‘s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail . . . .“); see Uthman v. Obama, 637 F.3d 400, 402 (D.C. Cir. 2011) (“The AUMF . . . authorizes the Executive Branch to detain” enemy combatants “for the duration of hostilities.“). And the
Nevertheless, Al-Alwi maintains that traditional law-of-war principles, which the Hamdi plurality said grounded its “understanding” of the AUMF‘s detention authority, 542 U.S. at 521, do not apply to the conflict here because of the conflict‘s duration, geographic scope and variety of parties involved. The “unprecedented” circumstances of the Afghanistan-based conflict, Al-Alwi argues, “ha[ve] eroded the United States’ detention authority under the AUMF.” Appellant‘s
Moreover, Al-Alwi has not identified any international law principle affirmatively stating that detention of enemy combatants may not continue until the end of active hostilities, even in a long war. Instead, law-of-war principles are open-ended and unqualified on the subject. See Hamdi, 542 U.S. at 520 (plurality opinion) (citing Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War and Article 20 of the Hague Convention (II) on Laws and Customs of War on Land as support for “clearly established principle of the law of war” that detention may continue during “active hostilities“); accord id. at 588 (Thomas, J., dissenting) (noting that “the power to detain does not end with the cessation of formal hostilities“). Nor has Al-Alwi advanced an alternative detention rule that should apply at this point. Although he urges that we “must impose a limit” on the Government‘s statutory authority to continue detaining him, Appellant‘s Br. 21, he provides no description of a limit and points to no controlling authority setting a possible limit. Cf. Ali, 736 F.3d at 552 (“[A]bsent 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.“).
Accordingly, we continue to follow Hamdi‘s interpretation of the AUMF and the National Defense Authorization Act‘s plain language. Both of those sources authorize detention until the end of hostilities. Although hostilities have been ongoing for a considerable amount of time, they have not ended. As in Hamdi, then, “the situation we face” does not support Al-Alwi‘s theory of unraveling authority because “[a]ctive combat operations against Taliban fighters apparently are ongoing in Afghanistan.” 542 U.S. at 521 (plurality opinion). Therefore, we reject Al-Alwi‘s argument that the United States’ authority to detain him has “unraveled.”
B. Authority to detain has not expired
In the alternative, Al-Alwi argues that the United States’ detention authority has expired because the “relevant conflict,” Hamdi, 542 U.S. at 521 (plurality opinion), in which he was captured
The “termination” of hostilities is “a political act.” Ludecke v. Watkins, 335 U.S. 160, 168-69 (1948). If the “life of a statute” conferring war powers on the Executive “is defined by the existence of a war, Congress leaves the determination of when a war is concluded to the usual political agencies of the Government.” Id. at 169 n.13; see also Al-Bihani, 590 F.3d at 874 (in absence of Congressional definition of end of war, “we defer to the Executive‘s opinion on the matter“). “Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled.” Ludecke, 335 U.S. at 169.
The question alluded to in Ludecke is not compelled here. The AUMF authorizes detention for the duration of the conflict between the United States and the Taliban and al Qaeda.
Al-Alwi argues that the nature of the hostilities has changed such that the “particular conflict in which [he was] captured,” Hamdi, 542 U.S. at 518 (plurality opinion), is not the same conflict that remains ongoing today. Al-Alwi was captured during Operation Enduring Freedom, the U.S. military campaign launched in 2001 to “defeat[] al Qaeda” and remove the Taliban from power in Afghanistan. JA 64. President Obama announced the “end” of Operation Enduring Freedom at the end of 2014. JA 63. President Obama contemporaneously announced the “begin[ning]” of Operation Freedom‘s Sentinel. JA 63. The new Operation “pursue[d] two missions“: to “continue
We disagree. As indicated above, the AUMF authorizes detention during active hostilities between the United States and the Taliban and al Qaeda. Nothing in the text of the AUMF or the National Defense Authorization Act suggests that a change in the form of hostilities, if hostilities between the relevant entities are ongoing, cuts off AUMF authorization. Cf. Al-Bihani, 590 F.3d at 874 (rejecting petitioner‘s argument that “current hostilities are a different conflict” based on Taliban shift from government to non-government form and noting common sense and laws of war “do not draw such fine distinctions“); Ali, 736 F.3d at 552 (acknowledging that “this is a long war with no end in sight” but stating that “war against al Qaeda, the Taliban, and associated forces obviously continues” and detention authority under AUMF has no statutory “time limit“). However characterized, the Executive Branch represents, with ample support from record evidence, that the hostilities described in the AUMF continue. In the absence of a contrary Congressional command, that controls. See Ludecke, 335 U.S. at 168-70 (deferring to political branch determination that “war with Germany” persisted despite fact that Germany had “surrender[ed]” and “Nazi Reich” had “disintegrat[ed]“).
Al-Alwi also argues that the United States’ entry into a bilateral security agreement (Agreement) with Afghanistan “mark[ed] the end of the original armed conflict” resulting in Al-Alwi‘s detention “and the commencement of a new one.” Appellant‘s Br. 33. In the Agreement, the United States declared that its “forces shall not conduct combat operations in Afghanistan.” Security and Defense Cooperation Agreement, Afg.-U.S., Art. 2 ¶ 1, Sept. 30, 2014. Instead, the United States agreed to “undertake supporting activities” to assist Afghan security.
But the Agreement does not declare an end to the conflict on which Al-Alwi‘s detention is based and the beginning of a new one. Although the Agreement indicates that the United States’ military operations in Afghanistan have changed, at the same time it “acknowledge[s] that U.S. military operations to defeat al-Qaida and its affiliates may be appropriate in the common fight against terrorism.”
“If the record establishes that United States troops are still involved in active combat in Afghanistan,” detention of “Taliban combatants” is “part of the exercise of ‘necessary and appropriate force,’ and therefore [is] authorized by the AUMF.” Hamdi, 542 U.S. at 521 (plurality opinion) (quoting AUMF). The record so manifests here. Although United States troops are involved in combat with a different operation name, they nonetheless remain in active combat with the Taliban and al Qaeda. Accordingly, the “relevant conflict” has not ended. Id. The Government‘s authority to detain Al-Alwi pursuant to the AUMF has not terminated.
Al-Alwi raises three additional arguments on appeal. First, he asserts that his continued detention, even if authorized by the AUMF, violates substantive due process protections. Second, he asserts that procedural due process requires more procedural protections in future proceedings, including a greater evidentiary burden of proof, than he has received so far. Third, he asserts that the district court should have allowed limited discovery on the differences between Operation Enduring Freedom and Operation Freedom‘s Sentinel.
We do not reach the merits of these arguments, however, because Al-Alwi forfeited them. Neither Al-Alwi‘s habeas petition nor his opposition to the Government‘s motion to dismiss mentioned any of these arguments. And Al-Alwi made none of the claims at oral argument in district court. By not asserting these arguments in the district court, Al-Alwi forfeited them and we do not reach them. See Keepseagle v. Perdue, 856 F.3d 1039, 1053 (D.C. Cir. 2017) (“issues and legal theories not asserted” in district court “ordinarily will not be heard on appeal” (internal quotation omitted)).
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.