Case 1:09-cv-02368-RCL Document 91 Filed 07/02/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MUKHTAR YAHIA NAJI
)
AL WARAFI,
)
)
Petitioner,
)
)
v.
)
Civil Action No. 09-2368 (RCL)
)
BARACK H. OBAMA, et al.,
)
)
Respondents.
)
____________________________________)
PETITIONER’S REPLY TO RESPONDENTS’
NOTICE OF SUPPLEMENTAL AUTHORITY
On June 19, 2015, the Government filed a Notice of Supplemental Authority, attaching
two new exhibits: a letter from the President, dated June 11, 2015, and a report issued by the
Department of Defense, dated June 2015. Dkt. 90, Exs. 1 and 2. The Government’s new
exhibits reiterate the President’s previous statements that the “U.S. combat mission in
Afghanistan ended on December 31, 2014,” that only a “limited number of U.S. forces remain in
Afghanistan,” and that their missions are “counterterrorism operations against the remnants of alQa’ida,” as well as “training, advising and assisting Afghan forces.” Ex. 1, at 3; Ex. 2, at 1, 3–4,
12.
Each exhibit, however, has a sentence that appears largely cribbed from the Opposition
filed by the Government in this case in April 2015. Dkt. 84.

 Case 1:09-cv-02368-RCL Document 91 Filed 07/02/15 Page 2 of 3

The President’s Letter, Ex. 1, at 3:

Government’s Opposition, Dkt. 84, at 1, 3:

“The United States currently remains in an
armed conflict against al-Qa’ida, the Taliban,
and associated forces, and active hostilities
against those groups remain ongoing.”

“As a matter of international and domestic
law, the United States currently remains in
an armed conflict with al-Qaeda, Taliban,
and associated forces.”
“[A]ctive hostilities against al-Qaeda,
Taliban, and associated forces have not
ceased.”
* * *
“[A]ctive hostilities against al-Qaeda,
Taliban, and associated forces in
Afghanistan remain ongoing.”

Department of Defense Report, Ex. 2, at 12:

Government’s Opposition, Dkt. 84, at 1:

“As a matter of international law, the United
States remains in an armed conflict against al
Qaeda, the Taliban and associated forces.”

“As a matter of international and domestic
law, the United States currently remains in
an armed conflict with al-Qaeda, Taliban,
and associated forces.”

It is obvious that the cited sentences of Exhibits 1 and 2 were included with an eye on this
litigation, to justify Al Warafi’s continued detention under international law. This justification
appears to be “invented post hoc in response to litigation,” and should be disregarded. United
States v. Virginia, 518 U.S. 515, 533 (1996). The Government’s transparent attempt to rescue its
position betrays the Government’s recognition that it cannot prevail on the record as it stood
when it filed its Opposition.
These sentences noted above do not purport to revise or retract the President’s repeated
public statements that the war against the Afghan Taliban has ended. On the contrary, the new
exhibits reaffirm the President’s statements that the United States is neither targeting individuals
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 Case 1:09-cv-02368-RCL Document 91 Filed 07/02/15 Page 3 of 3

because they are members of the Taliban nor conducting offensive operations against the
Taliban. See Ex. 2 at 12. Those public statements have lost none of their vitality. The
Government must now do what is required by law when wars end, i.e., release war prisoners. Al
Warafi has been detained solely because he was allegedly part of the Taliban in Afghanistan.
The President has declared the Taliban/Afghanistan war to have ended. Al Warafi must now be
released.
Respectfully submitted,
/s/ Brian E. Foster
S. William Livingston
D.C. Bar No. 59055
Brian E. Foster
D.C. Bar. No. 988311
Emily Keatley
D.C. Bar No. 1004811
Covington & Burling LLP
One CityCenter
850 Tenth Street, N.W.
Washington, D.C. 20001-4956
(202) 662-6000 (phone)
(202) 662-6291 (fax)
wlivingston@cov.com
bfoster@cov.com
ekeatley@cov.com
David H. Remes
D.C. Bar. No. 370372
APPEAL FOR JUSTICE
1106 Noyes Drive
Silver Spring, MD 20910
(202) 669-6508 (phone)
remesdh@gmail.com

July 2, 2015

Counsel for Petitioner
Mukhtar Yahia Naji Al Warafi

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