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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 


MUKHTAR YAHIA NAJ I AL WARAFI, 
Petitioner, 

v. Civil Action No. 09-2368 (RCL)

BARACK H. OBAMA, et al., 
Respondents. 

MEMORANDUM OPINION

 

Petitioner Mukhtar Yahia Naji al Wara? (?petitioner?) once again challenges the legality
of his detention at the United States Naval Base in Gauntanamo Bay, Cuba (?Guantanamo?). In
petitioner?s previous challenge, this Court held his detention law?il under the Authorization for
the Use of Military Force Pub. L. No. 107?40 115 Stat. 224 (2002), because
respondents had shown that petitioner more likely than not belonged to the Taliban when captured.
Al Wara? v. Obama, 704 F. Supp. 2d 32, 35 (D.D.C. 2010). Petitioner now argues that recent
statements by the President conclusively prove that the hostilities that justi?ed his detention, those
between the United States and the Taliban, have ended. Respondents counter that the AUMF
continues to authorize petitioner?s detention because the United States remains engaged in active
hostilities with the Taliban in Afghanistan.

Before the Court is Plaintiff?s Motion to Grant Petition for Writ of Habeas Corpus 
Upon consideration of Plaintiff?s Motion and Memorandum in Support thereof and supplements
thereto, Respondents? Opposition and supplements thereto, the arguments made in open court on
July 14, 2015, the entire record in this case, and the applicable law, the Court will DENY Plaintiff? 8
Motion 

I. BACKGROUND

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In November 2001, the Northern Alliance captured petitioner in Afghanistan. The United
States took custody of petitioner from the Northern Alliance and has detained him at Guantanamo
since 2002. Petitioner ?led for a writ of habeas corpus challenging that detention in 2004. In
2010, this Court denied that petition on the aforementioned basis. Al Wara? v. Obama, 704 F.
Supp. 2d at 35. The DC. Circuit affirmed the Court?s ?nding that respondents had shown that
petitioner ?was more likely than not part of the Taliban,? but remanded to determine whether he
quali?ed as protected medical personnel under the First Geneva Convention and Army Regulation
190-8. Al Wara? v. Obama, 409 Fed. App?x 361, 362 (DC. Cir. 2011). On remand, this Court
ruled that petitioner had failed to prove that he so quali?ed. Al Wara? v. Obama, 821 F. Supp. 2d
47, 54?56 (D.D.C. 2011). The DC. Circuit af?rmed that ruling, 716 F.3d 627 (2013), and denied
Al Wara??s petition for rehearing en banc, Al Warafi v. Obama, No. 11?5276 (DC. Cir. 2013).
The Supreme Court denied A1 Wara??s petition for a writ of certiorari. Al Wara? v. Obama, 134
S. Ct. 2134 (2014).

On December 15, 2014, the President gave a speech in which he said that ?[t]his month,
after more than 13 years, our combat mission in Afghanistan will be over,? and that ?[t]his month
America?s war in Afghanistan will come to a responsible end.? Pet?r?s Mot. Ex. A, at 2. In his
State of the Union Address on January 20, 2015, the President stated that ?our combat mission in
Afghanistan is over.? Pet?r?s Mot. Ex. B, at 1. On January 28, 2015, the President again said that
?our combat mission in Afghanistan is over and America?s longest war has come to a responsible
and honorable end.? Pet?r?s Mot. Ex. I, at 1. On May 23, 2015, the President stated that the
upcoming Memorial Day would be the ?rst ?since our war ended in Afghanistan,? and that 
Afghanistan, our troops now have a new mission?training and advising Afghan forces.? Pet?r?s

Mot. Ex. K, at 1. On May 25, 2015, the President delivered a speech at the Arlington National

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Cemetery in which he described that day as the ?rst Memorial Day ?since our war in Afghanistan
came to an end.? Pet?r?s Mot. Ex. L, at 1. He also said that the ?fewer than 10,000 troops?
remaining in Afghanistan are pursuing ?a mission to train and assist Afghan forces.? Id. at 2.
After stating that ?Afghanistan remains a very dangerous place,? the President described a recent
American casualty as ?the first American servicemember to give his life to this new mission to
train Afghan forces.? Id. at 2w3.
II. LEGAL STANDARDS
A. AUMF Detention
The AUMF provides
[t]hat 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 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.

When it expires or how it may be revoked is left unsaid. In Hamdz' v. Rumsfeld, a plurality
of the Supreme Court, based on ?longstanding law?of-war principles,? took Congress?s ?grant of
authority for the use of ?necessary and appropriate force?? in the AUMF to ?include the authority
to detain for the duration of the relevant con?ict.? Hamdi, 542 US. 507, 521 (2004) (plurality
opinion); see also Aamer v. Obama, 742 F.3d 1023, 1041 (DC. Cir. 2014) court has
repeatedly held that under the 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?). Congress later endorsed this understanding of respondents? detention
power in the 2012 National Defense Authorization Act which authorized ?[d]etention

under the law of war without trial until the end of hostilities authorized by the NDAA

1021(c)(1).

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B. Who Determines the End of Hostilities for the Purposes of AUMF Detention

Respondents maintain that determining when hostilities have ended is reserved for the
political branches, and petitioner agrees that ?a con?ict is over when the President says it is over.?
Resp?t?s Opp?n 27; Pet?r?s Mot. 6. So the question of who decides when hostilities have ended for
the purposes of AUMF detention is not one the litigants dispute in this case?they merely differ
on what, exactly, the President has decided.

At the hearing on petitioner?s motion, respondents conceded that whether there are active
hostilities suf?cient to justify AUMF detention is not a political question, but suggested that the
Court could not contradict the President?s litigation position on that issue. The Court is inclined
to disagree: The notion that courts can hear habeas petitions only insofar as they rule for the
government on a potentially dispositive issue is, if anything, even more insidious than the notion
that courts cannot decide the issue at all. But because the Court concludes that active hostilities
continue?and would so conclude whether it conducted an independent examination or deferred
to Respondents completely ??the Court need not decide the appropriate standard of review. This
case presents issues that may be relevant for years or decades to come, however. Consequently,
the Court will still explain why it would, if necessary, reject both parties? arguments that the
President?s statements control regardless of the facts on the ground.

i. The Court?s Role in a Habeas Proceeding

Courts are traditionally ?reluctant to intrude upon the authority of the executive in military
and national security affairs? unless Congress speci?cally provides otherwise. Dep?t of the Navy
v. Egan, 484 US. 518, 530 (1988) (collecting cases). In Ludecke v. Watkins, the Supreme Court
said that the termination of a state of war ?is a political act,? and that for such ?matters of political

judgment . . . judges have neither the technical competence nor of?cial responsibility.? 335 US.

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160, 169470. The DC. Circuit has held that the ?determination of when hostilities have ceased is
a political decision, and we defer to the Executive?s opinion on the 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 (DC. Cir. 2010) (see also a] Maqaleh v. Hagel, 738 F.3d 312, 330
(DC. Cir. 2013) (?Whether an armed con?ict has ended is a question left exclusively to the
political branches?), cert. dismissed sub nom. al-Maqaleh v. Hagel, 135 S. Ct. 782 (2014)).
On the other hand, the Hamdi plurality recognized that such deference must have limits,

and noted that

as critical as the Government's interest may be in detaining those

who actually pose an immediate threat to the national security of the

United States during ongoing international con?ict, 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 that sort of threat.
542 US. 507, 530 (citing Ex parte Milligan, 4 Wall. 2, 125 (1866)). Perhaps with that risk in
mind, Hamdi held that the detention authorization turns partly on whether ?the record
establishes that United States troops are still involved in active combat in Afghanistan.? 542 US.
at 521 (emphasis added). A ?recor implies a court, and though Hamdi does not explicitly say
that the record in such cases must be reviewed (and the determination made) by a court rather than
the Executive, no other reading makes sense: ?[T]he one constant in the history of habeas [has
been] the independent power of a judge to assess the actions of the Executive.? Al-Bihani v.
Obama, 590 F.3d 866, 880 (DC. Cir. 2010) (emphasis added). By requiring that there be a record
to review, and a court to review it, Hamdi ?appears to limit the President?s authority to detain?
despite Ludecke?s admonition against second-guessing the judgment of the political branches

regarding the state of war. See 542 US. at 588 (Thomas, ., dissenting). Though Hamdz' may

appear to contradict Ludecke, it does no more than address a question that Ludecke expressly

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reserved: ?Whether and when it would be open to this Court to ?nd 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 US. at 169. The Hamdi plurality, at last
compelled to answer this grave question, held that a court can and must examine such issues,
including the issue of whether active hostilities continue, itself.

While Hamdi is a plurality opinion, in Boumediene v. Bush a majority of the Supreme Court
took a closely analogous position that, read in conjunction with Hamdi, appears to control this
case. 553 US 723 (2008). Boumediene conceded that ?in other contexts the Court has held that
questions of sovereignty are for the political branches to decide,? but nevertheless rejected the
government?s argument that de jure sovereignty over Guantanamo was a missing prerequisite for
habeas corpus jurisdiction. Id. at 753, 755. In that Court?s words,

[a]bstaining from questions involving formal sovereignty and
territorial governance is one thing. To hold the political branches
have the power to switch the Constitution on or off at will is quite
another. The former position re?ects this Court's recognition that
certain matters requiring political judgments are best left to the
political branches. The latter would permit a striking anomaly in our

tripartite system of government, leading to a regime in which
Congress and the President, not this Court, say ?what the law is.?

Id. at 765 (citations omitted). Boumediene, like Hamdz', reasoned that habeas rights that
lived and died by the unexamined word of the political branches would be fatally ?awed. Compare
id. at 765?66 (?The test for determining the scope of [habeas] must not be subject to manipulation
by those whose power it is designed to restrain?), with Hamdi, 542 US. at 537 (?Any process in
which the Executive's factual assertions go wholly unchallenged or are simply presumed correct

without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally

short?).

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The Executive branch has elsewhere recognized that the existence of armed con?ict cannot
be taken for granted in detainee cases. In United States v. Al Bahlul, the United States Court of
Military Commission Review observed that ?[t]he 2007 [Manual for Military
Commissions] . . . require[es] proof beyond a reasonable doubt that the offense occurred in the
context of an armed con?ict.? 820 F. Supp. 2d 1141, 1189 2011), vacated on other
grounds, No. 11-1324, 2013 WL 297726 (DC. Cir. Jan. 25, 2013). And while neither the military
commissions nor the are Article courts, their decisions are reviewable by the DC.
Circuit and the Supreme Court. See 10 U.S.C. 950g.

This is not to say that the due process protections provided by military commissions are a
constitutional ?oor for habeas proceedings; the example merely proves that what respondents
portray as iron law is in fact a principle that sometimes yields to other constitutional values,
practical concerns notwithstanding. Compare The Protector, 79 U.S. 700, 702 (1871) (?Acts of
hostility by the insurgents occurred at periods so various, and of such different degrees of
importance, and in parts of the country so remote from each other . . . that it would be dif?cult, if
not impossible, to say on what precise day it began or terminated?), with Al?Bahlul, 820 F. Supp.
2d at 1190 (quoting from a list of factors to consider in determining ?whether an armed con?ict
existed between the United States and al Qaeda and when it began?).

Respondents? other cited authorities are, like Ludecke, either distinguishable (none of them
deal with habeas) or apparently overruled to the extent they con?ict with Hamdi and Boumediene.
United States v. Anderson addressed a statute governing the reclamation of abandoned property in
the aftermath of the Civil War; in doing so, the Court deferred to political proclamations
concerning the end of hostilities on the ground that Congress had likely not intended to burden

Union soldiers with the task of determining that date. 76 U.S. 56, 70?71 (1869). The Protector

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dealt with the question of when statutes of limitations were tolled by the Civil War; it also accepted
political branch proclamations as conclusive only the absence of more certain criteria, of
equally generally application.? 79 US. at 702. In The Three Friends, the Court found that a statute
mandating the forfeiture vessels used to aid belligerents applied to a ship whose owners had
intended to offer as aid to Cuban revolutionaries, even where the political branches had not
formally recognized Cuba?s insurgency as ?belligerents,? but had merely recognized the reality of
political revolt. 166 U.S. 1, 62-64 (1897). Commercial Trust Co. of New Jersey v. Miller
concerned the operation of a wartime statute governing the seizure of assets held on behalf of an
?alien enemy.? 262 US. 51, 54?55 (1923). Citizens Protective League v. Clark, like Ludecke,
dealt with the removal rather than the detention of enemy aliens. 155 F.2d 290, 294 (1946). And
while Baker v. Carr did say with respect to ?[d]ates of duration of hostilities? that ?it has been
stated broadly that ?the power which declared the necessity is the power to declare its cessation,
and what the cessation requires,? the Court also stated that there are ?isolable reasons for the
presence of political questions,? and that such ?deference rests on reason, not habit.? 369 US.
186, 213 (1962). When such reasons are absent?cg. when ?[t]he question in a particular case
may not seriously implicate considerations of finality,? or when ?clearly de?nable criteria for
decision may be available??a reviewing court ?is not at liberty to shut its eyes to an obvious
mistake, when the validity of the law depends upon the truth of what is declared.? Id. at 213?14
(quoting Chastletori Corp. v. Sinclair, 264 US. 543, 547 (1924)).

The Court finds no support in any of the aforementioned cases to reject the principle, cited
in Baker itself and embodied in Hamdi and Boumediene, that ?even the war power does not remove
constitutional limitations safeguarding essential liberties.? Home Bldg. Loan Ass 'n v. Blaisdell,

290 US. 398, 426 (1934).

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ii. The President?s Speeches are not Dispositive as to the Existence of Active
Hostilities

Having rejected the proposition that it is the President and not this Court who must decide
whether active hostilities exist, the next hurdle is determining what evidence the Court may
consider in making that ?nding. The second question is not entirely distinct from the ?rst?after
all, if the Court had to decide the issue but could consider only what the President has said, there
would be little to dog?but still merits its own discussion.

Petitioner?s argument assumes that the President?s stance on the existence of hostilities is
conclusive in this case, and that one discerns that stance from speeches, and speeches alone.
Taking these premises together, Petitioner essentially argues that the President has a peculiar strain
of King Midas?s curse: Everything he says turns to law. By this blinkeer logic, so long as he
maintained that active hostilities were ongoing in Afghanistan, the President could preserve his
AUMF detention power even if he withdrew all US. military presence from Afghanistan, stopped
any military aid to the Afghan government, and brokered a lasting peace treaty between the US,
the Taliban, al Qaeda, and the Afghan government. But war is not a game of ?Simon Says,? and
the President?s position, while relevant, is not the only evidence that matters to this issue. See Al-
Bihani, 590 F.3d at 874 (?The Conventions, in short, codify what common sense tells us must be
true: release is only required when the ?ghting stops?); see also Al?Bahlul, 820 F. Supp. 2d at
1 190 (listing factors to consider in ?determining whether an arm con?ict existed?). Petitioner even
halfway concedes this, asserting that while ?a con?ict is over when the President says it is over,?
different question would be presented if a habeas petitioner claimed that the relevant con?ict
had ended but the President disagreed. In such a case, petitioner submits that the President?s

position would not be conclusive or unreviewable in a habeas action.? Pet?r?s Mot. 6 11.4.

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Petitioner does not explain the discrepancy; more importantly, the case he poses as hypothetical is
real. It is this case.

In support of this conclusion, respondents have submitted, among other things, a signed
letter from the President, dated June 1 1, 2015, in which he says that ?there are approximately 9,100
US. forces in Afghanistan? for the ?purposes of training, advising, and assisting Afghan forces,
conducting and supporting counterterrorism operations against the remnants of al-Qa?ida, and
taking appropriate measures against Taliban members who directly threaten US. and coalition
forces in Afghanistan or provide direct support to Resp?t?s Notice of Suppl. Authority
Ex. 1, at 3. The President?s letter goes on to say that ?[t]he United States currently remains in an
armed con?ict against al-Qa?ida, the Taliban, and associated forces, and active hostilities against
those groups remain ongoing.? Id. Respondents have also submitted a Department of Defense
Report which likewise states that a matter of international law, the United States remains in
an armed con?ict against al Qaeda, the Taliban and associated forces.? Resp?t?s Notice of Suppl.
Authority Ex. 2, at 12.

Petitioner counters that these statements were included with an to this case, and should
be rejected as post hoc justi?cations invented to prevail here. Petitioner is right that a court should
be wary of deception. See, United States v. Virginia, 518 US. 515, 533 (1996) (state
justi?cation for gender classi?cation ?must be genuine, not hypothesized or invented post hoc in
response to litigation?). But the Court?s job is harder than accepting all earlier-in-time statements
as true and all later-in-time statements as false. Even if we assume the speeches petitioner cites
mean what he claims they mean?and one could parse their language so that they do not, as
respondents point out?the President?s earlier statements that the war is over could, hypothetically,

be false, and his later statements that active hostilities continue could, hypothetically, be true.

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Petitioner fails to recognize that this is possible, let alone provide reasons to believe that it is not
so.

Additionally, the Supreme Court has held that even where Congress explicitly tied the
expiration of congressionally-authorized war powers to Presidential proclamation, those powers
are not undone by ?passing references in messages to Congress, nor by newspaper interviews with
high of?cers of the army or with of?cials of the War Department.? Hamilton v. Kentucky
Distilleries Warehouse 251 US. 146, 167 (1919). In Hamilton, a whiskey company argued
that a World War I statute governing the sale of spirits?one that by its own terms was to last ?until
the conclusion of the present war and thereafter until the termination of demobilization, the date
of which shall be determined and proclaimed by the President of the United States,? 40 Stat. 1045,
1046, c. 212?had been rendered inoperative by President Wilson?s public statements ?that the
war has ended and peace has come, that certain war agencies and activities should be discontinued,
that our enemies are impotent to renew hostilities and that the objects of the act here in question
have been satis?ed in the demobilization of the army and navy.? Hamilton v. Kentucky Distilleries
Warehouse 251 US. at 159.

The Hamilton Court, in determining whether the state of war that had initially justi?ed the
statute had ended, discounted President Wilson?s statements on the ground that the political
branches? actual conduct showed that war persisted. See id. at 164 (stating that because ?the treaty
of peace had not yet been concluded, . . . the railways are still under national control by virtue of
the war powers, . . . other war activities have not been brought to a close, and . . . it cannot even
be said that the man power of the nation has been restored to a peace footing, we are unable to
conclude that the act has ceased to be valid?). Given that Congress declined to explicitly make the

war power at issue here expire by Presidential proclamation, Hamilton?s logic applies even more

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forcefully. Based on the evidence presented in this case, the Court sees every reason to believe
that President Obama?s words, like President Wilson?s, ?were doubtless used in a popular sense.?
Id. at 167.

Petitioner?s obsession with Presidential speeches recalls the tale of the man who lost his
keys: A police of?cer sees a man looking for something under a streetlamp and asks the man what
it is he?s looking for. The man responds that he?s looking for his keys, so the of?cer decides to
help. After several minutes the of?cer asks the man if he?s quite sure this is where he lost his keys.
The man says no; he lost them over in the park. The of?cer, befuddled, asks why they?ve been
looking under the streetlamp, to which the man replies ?the light?s better over here.? A court
cannot look to political speeches alone to determine factual and legal realities merely because
doing so would be easier than looking at all the relevant evidence. The govermnent may not always
say what it means or mean what it says: The Affordable Care Act?s individual mandate, for
example?described in the statute and in public statements as a penalty, not a tax increase?was
defended before and upheld by the Supreme Court as a tax. See Nar'l Fed'n of Indep. Bus. v.
Sebelius, 132 S. Ct. 2566, 2600 (2012). The Court?s responsibility here is likewise to determine
the objective existence or nonexistence of active hostilities using all relevant evidence.

C. Standard of Review

Petitioners propose no standard of review at all, and argue instead that the President?s
statement that the United States? combat mission in Afghanistan has ended ?is a conclusive,
unreviewable determination of the end of combat for purposes of detaining prisoners captured in
the war in Afghanistan against the Taliban.? Pet?r?s Mot. 6. Respondents likewise argue that the
Court cannot second-guess the President, though they interpret the President?s statement

differently. Both positions are wrong, and the Court must conduct its own examination of the

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issue. Under Al?Bz?hani, a preponderance of the evidence standard is not unconstitutional in
detainee habeas cases. 590 F.3d at 878. This Court therefore will continue to follow the
procedures set out in the Case Management Order issued by Judge Hogan in the
consolidated habeas cases on November 6, 2008, as amended December 16, 2008. Pursuant to the
Amended CMO, respondents ?bear the burden of proving by a preponderance of the evidence that
the petitioner's detention is lawful.? In re Guantanamo Bay Litig, 08?442, CMO ILA. (Nov. 6,
2008). As explained above, because this Court ?nds herein that respondents have prevailed on
this issue by a preponderance of the evidence, it need not decide whether respondents were obliged
to meet that standard.

ANALYSIS

A. Petitioner Need not ?le a New Habeas Petition to Request This Relief

Respondents object to the form of petitioner?s ?ling on the ground that it asserts a new
legal theory never raised in his earlier petition, and does so without either ?ling a new petition or
moving for relief from the prior judgment under Fed. R. Civ. P. 60(b). But as petitioner points
out, respondents fail to identify any element missing from petitioner?s motion that would be
required in either a Rule 60(b) motion or a new petition. The Court therefore will deem petitioner?s
present motion to be a Rule 60(b) motion for relief from this court?s previous judgment with
respect to his earlier habeas petition.

B. Active Hostilities Persist

As the Al-Bihani court said, ?release is only required when the ?ghting stops.? 590 F.3d
at 874. Respondents have offered convincing evidence that US. involvement in the ?ghting in
Afghanistan, against al Qaeda and Taliban forces alike, has not stopped. See, e. g, Resp?t?s Opp?n

10?17; see also Resp?t?s Opp?n Ex. 10. Petitioner has two responses.

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First, petitioner argues that any engagements between US. forces and the Taliban ?would
at most be collateral effects of pursuing al Qaeda or assisting the Afghan security forces, and do
not represent a war by the United States against the Taliban.? Pet?r?s Suppl. Reply 3. But war is
not required here; all the AUMF detention authority demands is that the ?ghting continue. The
government has shown that the ?ghting in fact continues, and petitioner does not dispute this.
Petitioner asserts that one rationale for wartime detention (the fear of replenishing the enemy?s
ranks) would not be implicated by his release because (1) petitioner is not an Afghan and has no
current connection with the Taliban or Afghanistan, and (2) respondents could simply not release
him to Afghanistan. Pet?r?s Reply 6. As to the ?rst point, that did not stop petitioner from assisting
the Taliban in the ?rst place, and the Court sees no reason to think it would stop him now; as to
the second, petitioner does not say how respondents could, having released him to somewhere
besides Afghanistan, stop him from returning there.

Second, petitioner reiterates that the President?s speeches are not ?repealed or nulli?ed? by
the combat operations actually being carried out by Taliban or US. forces. Pet?r?s Suppl. Reply
3. But, as explained earlier, it is only law that need be repealed or nulli?ed, and the President?s
speeches were not law.

CONCLUSION

For the foregoing reasons, the Court DENIES petitioner?s Motion to grant his petition for

a writ of habeas corpus. A separate ORDER consistent with this Memorandum Opinion shall issue

this date, July 30, 2015.

gem

C. LAMBERTH
United States District Judge

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