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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOATH HAMZA AHMED AL-ALWI,
Petitioner/Plaintiff,
Case No. 15-CV-681 (RJL)
v.
BARACK H. OBAMA, et al,
Respondents/Defendants.

PETITIONER’S OPPOSITION TO RESPONDENTS’ MOTION TO DISMISS
PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Pursuant to the Supreme Court’s holding in Hamdi v. Rumsfeld, the United States’
detention authority under the Authorization for Use of Military Force (“AUMF”) expires when
the relevant conflict giving rise to a prisoner’s capture ends. Operation Enduring Freedom,
characterized by unilateral, U.S.-led combat operations, is the particular conflict in which
Petitioner Moath al-Alwi (“Mr. al-Alwi”) was captured fourteen years ago. In light of the entire
record, that conflict has ended and the United States is no longer engaged in active hostilities,
fulfilling instead an advisory and supporting role in Afghanistan.
Under the banner of Operation Freedom’s Sentinel, U.S. forces today have two limited
missions in Afghanistan, both of which are in support of the Afghan National Defense &
Security Forces (“Afghan security forces” or “ANDSF”). The first is to train, advise, and assist
Afghan security forces, and the second is to conduct counterterrorism operations in support of
those same Afghan forces, who are now in the lead and responsible for security in Afghanistan.
This is in keeping with the 2014 Bilateral Security Agreement between Afghanistan and the
United States (“Bilateral Security Agreement” or “Agreement”), which restricts U.S. military

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activities in Afghanistan to a non-combat role, generally prohibits U.S.-led combat operations in
Afghanistan, and specifically forbids unilateral counterterrorism operations.
While a security threat endures in Afghanistan today, it is now Afghanistan’s fight. That
the United States is there to play a supporting role cannot justify Mr. al-Alwi’s continuing, openended detention in Cuba. The Court should deny the government’s motion to dismiss and grant
the writ of habeas corpus in this case. Now that the relevant conflict that led to his imprisonment
has ended—and even if this Court were to find that conflict ongoing—Mr. al-Alwi’s continued
captivity is unlawful both as a matter of domestic and international law. He should finally be set
free.
BACKGROUND
I.

The Relevant Armed Conflict in Afghanistan
In response to the September 11, 2001 attacks, Congress passed the Authorization for

Use of Military Force, which empowered the President to:
[U]se 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.
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2002) [hereinafter “AUMF”].
Pursuant to the AUMF, President George W. Bush launched Operation Enduring
Freedom, which began with airstrikes against Taliban and al-Qaida forces in Afghanistan.
President George W. Bush, Presidential Address to the Nation, The White House (Oct. 7, 2011).1
Operation Enduring Freedom was the framework for the U.S. war effort in Afghanistan and its
goals were to remove the Taliban regime from power and dismantle al-Qaida.
1

Available at http://georgewbush-whitehouse.archives.gov/news/releases/2001/10/20011007-8.html.

2

See 9/11

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Commission Report, 337–38 (2004)2 (describing the four phases of the Operation); see also
Department of Defense Report on Enhancing Security & Stability in Afghanistan (June 2015)
[hereinafter “DoD Report”], Resp’ts’ Mot., Ex. 18 at 1, 4, ECF No. 15 (describing Operation
Enduring Freedom and contrasting it with current U.S. advisory and support effort in
Afghanistan); President Barack H. Obama, Remarks by the President in a Press Conference, The
White House (Nov. 5, 2014) (stating that “the AUMF was designed to” respond to attacks of
September 11, 2001).3
Between 2001 and 2011, the United States deployed more than half a million troops
overall to Afghanistan to fulfill Operation Enduring Freedom’s goals of overthrowing the
Taliban regime and dismantling al-Qaida. See Statement by the President on Ten Years of
American Service in Afghanistan (Oct. 7, 2011), Resp’ts’ Mot., Ex. 5, ECF No. 15 (saluting
“more than half a million men and women” who served in Afghanistan). At the peak of the
conflict, the United States had 100,000 troops on the ground in Afghanistan. Statement by the
President on Afghanistan (May 27, 2014) [hereinafter “May 2014 Statement”], Resp’ts’ Mot.,
Ex. 9, ECF No. 15. In 2011, American forces were “heavily engaged in combat” and the United
States and its coalition partners were based in over 800 sites throughout Afghanistan conducting
active hostilities. Statement of General John F. Campbell, Commander United States ForcesAfghanistan, Before the House Armed Services Committee on the Situation in Afghanistan
(March 4, 2015) [hereinafter “Campbell Statement”], Resp’ts’ Mot., Ex. 17, ECF No. 15.
During Operation Enduring Freedom, the United States took a leadership role in
counterterrorism and security operations in Afghanistan. See, e.g., Letter from the President to
the Speaker of the House, Six Month Consolidated War Powers Resolution Report (Dec. 11,
2

Available at www.9-11commission.gov/report/911Report.pdf.

3

Available at https://www.whitehouse.gov/the-press-office/2014/11/05/remarks-president-press-conference.

3

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2014) [hereinafter “2014 WPR Report”], Resp’ts’ Mot., Ex. 6 at 1–2, ECF No. 15 (reporting that
U.S. armed forces led counterterrorism operations, which degraded al-Qaida and brought an end
to Taliban rule in Afghanistan, with support from international partners); Intelligence
Authorization Act, Pub. L. 112-87, § 414, 125 Stat. 1891 (2012) (Congressional finding that,
after September 11, 2001 terrorist attacks, the United States led international coalition into
Afghanistan to dismantle al-Qaida and deny them safe haven). As a result, the United States
sustained significant casualties in combat:
During Operation Enduring Freedom, from October 2001 through
December 2014, 2,215 U.S. military personnel died in
Afghanistan; 20,027 U.S. military personnel were wounded-inaction (WIA), and 1,832 were killed-in-action (KIA).
DoD Report, Resp’ts’ Mot., Ex. 18 at 29, ECF No. 15.
During Operation Enduring Freedom, the United States engaged in numerous combat
operations and missions against Taliban, al-Qaida, and associated forces. 2014 WPR Report,
Resp’ts’ Mot., Ex. 6 at 1, ECF No. 15. Operation Enduring Freedom, which spanned more than
thirteen years, was not merely one mission in a long war in Afghanistan. Operation Enduring
Freedom was the war. See, e.g., Statement by the President on the End of the Combat Mission in
Afghanistan (Dec. 28, 2014) [hereinafter “December 2014 Statement”], Resp’ts’ Mot., Ex. 12,
ECF No. 15 (equating the mission with the war in Afghanistan) (“Now, thanks to the
extraordinary sacrifices of our men and women in uniform, our combat mission in Afghanistan is
ending, and the longest war in American history is coming to a responsible conclusion.”);
Statement by Secretary of Defense Chuck Hagel on Operation Enduring Freedom and Operation
Freedom’s Sentinel (Dec. 28, 2014) [hereinafter “Secretary Hagel’s Statement”], Resp’ts’ Mot.,
Ex. 4, ECF No. 15 (announcing Operation Enduring Freedom’s conclusion and referring to it as
“America’s longest war”).
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II.

Mr. al-Alwi’s Capture
Mr. al-Alwi was in northern Afghanistan on September 11, 2001. Pet. ¶ 15. After the

United States launched its Operation Enduring Freedom bombing operations on October 7, 2001,
Mr. al-Alwi fled for safety to Pakistan. Id. At that time, U.S. forces distributed flyers and
notices throughout Pakistan and Afghanistan offering sizeable bounties in exchange for turning
over “suspicious” persons. Id. This practice led to bounty hunters—often Pakistani government
officials, residents, tribesmen, or militiamen—opportunistically capturing 689 individuals, many
if not most on the basis of their Arab ethnicity. Consequently, 369 of these individuals were
delivered to the United States, many for $5,000 each, with little, if any, vetting, earning the
Pakistani government millions of dollars in prize money. See Mona Samari, Bounties Paid for
Terror Suspects, Amnesty Int’l (Jan. 16, 2007);4 Pervez Musharraf, In the Line of Fire: A
Memoir 239–43 (Free Press 2006).
Ultimately, the United States took custody of Mr. al-Alwi, transported him back to
Afghanistan, and finally rendered him to Guantánamo on January 16, 2002. Mr. al-Alwi has
been incarcerated there ever since. Pet. ¶ 16.
III.

The Armed Conflict Ends and a New Advisory Effort Begins
On June 22, 2011, President Obama announced the beginning of U.S. troop withdrawal

from Afghanistan as part of a phased effort to wind down the United States’ war effort in that
country, framed from its outset by Operation Enduring Freedom. See Remarks by the President
on the Way Forward in Afghanistan (June 22, 2011), Resp’ts’ Mot., Ex. 8 at 1, ECF No. 15
(“Our troops will continue coming home at a steady pace as Afghan security forces move into
the lead.”). The President declared that the U.S. effort in Afghanistan will no longer be one of

4

Available at http://www.amnesty.org.au/hrs/comments/2167/.

5

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combat and that the war will “come to a responsible end.”

Id. at 1-2. President Obama

emphasized that by 2014 “the Afghan people will be responsible for their own security.” Id. at 1.
On March 25, 2013, the United States signed a Memorandum of Understanding (“MOU”)
with the government of Afghanistan “under which the United States transferred all Afghan
nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan
government.” 2014 WPR Report, Resp’ts’ Mot., Ex. 6 at 1, ECF No. 15; see also Frank Jack
Daniel, U.S. closes Bagram prison, says no more detainees in Afghanistan, Reuters (Dec. 11,
2014).5
On May 27, 2014, President Obama announced that only 9,800 U.S. service members—
less than 10% of the U.S. force at the war’s peak—would remain in Afghanistan after December
2014, and their presence would be in “an advisory role.”6 May 2014 Statement, Resp’ts’ Mot.,
Ex. 9 at 2, ECF No. 15. The President reiterated that “America’s combat mission will be over by
the end of this year” and remaining American troops would serve only “two narrow missions
after 2014: training Afghan forces and supporting counterterrorism operations against the
remnants of al Qaeda.” Id. President Obama emphasized that Afghan security forces have
“assumed the lead for combat operations.” Id. at 1–2.
Crucially, the United States and Afghanistan signed a security agreement on September
30, 2014, ending approximately thirteen years of unilateral U.S. combat operations—or active
hostilities—under AUMF authority and defining the U.S. military’s new advisory role in
Afghanistan. See generally Security and Defense Cooperation Agreement, U.S.-Afghanistan

5

Available
at
http://www.reuters.com/article/2014/12/11/us-usa-cia-torture-bagramidUSKBN0JO2B720141211?nl=nytnow&em_pos=large&emc=edit_nn_20141211.
6

As of May, 2015, 6,827 of these troops have been assigned to training, advising, and assisting the ANDSF as part
of NATO’s Resolute Support (“RS”). DoD Report, Resp’ts’ Mot., Ex. 18 at 20, ECF 15; see also id. at 19 (“The
United States remains the largest force contributor to the RS mission.”).

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(Sept. 30, 2014) [hereinafter “Bilateral Security Agreement” or “BSA”], Resp’ts’ Mot., Ex. 11,
ECF No. 15. President Obama described the Bilateral Security Agreement as “the necessary
legal framework” for the United States’ continuing presence in Afghanistan. Statement by the
President on the Signing of the Bilateral Security Agreement and NATO Status of Forces
Agreement in Afghanistan (Sept. 30, 2014) [hereinafter “President’s BSA Statement”], Resp’ts’
Mot., Ex. 10, ECF No. 15; see also May 2014 Statement, Resp’ts’ Mot., Ex. 9 at 2 (“This
[Bilateral Security] Agreement is essential to give our troops the authorities they need to fulfill
their mission, while respecting Afghan sovereignty.”); BSA art. 2, ¶ 6 (declaring that Bilateral
Security Agreement “provides the necessary authorizations for the presence and activities of
United States forces in Afghanistan and defines the terms and conditions that describe that
presence”). Recognizing Afghanistan’s sovereignty and independence, the Bilateral Security
Agreement provides that “United States forces shall not conduct combat operations in
Afghanistan,” BSA art. 2, ¶ 1, and may not engage in unilateral U.S. military counter-terrorism
operations there. Id. at ¶ 4.
In addition to limiting U.S. combat in Afghanistan to a supporting role for Afghan
forces,7 and emphasizing the Afghan security forces’ leadership, the Bilateral Security
Agreement provides that “United States forces shall not arrest or imprison Afghan nationals, nor
maintain or operate detention facilities in Afghanistan.” BSA art. 3, ¶ 3. Further recognizing
Afghan sovereignty, the Bilateral Security Agreement requires U.S. authorities to remove
members of the U.S. armed forces or civilian employees from Afghanistan upon request from
Afghan authorities. BSA art. 15, ¶ 3.

7

Without any evidence in support, the government argues that the narrow exception of mutually agreed upon
combat operations somehow swallows the Bilateral Security Agreement’s clear rule that U.S. forces may not
conduct such combat operations in Afghanistan. The government cryptically refers to “existing arrangements,” but
offers no explanation of what those existing arrangements may be.

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Following the signing of the Bilateral Security Agreement, President Obama announced
the end of Operation Enduring Freedom, and declared that “the longest war in American history
is coming to a responsible conclusion.” December 2014 Statement, Resp’ts’ Mot., Ex. 12, ECF
No. 15.

In line with the Bilateral Security Agreement, President Obama’s announcement

confirmed that the United States’ “limited military presence in Afghanistan” was intended to
support Afghan forces, at the invitation of the Afghan government. Id. While the President
alluded to counterterrorism operations, he emphasized that the Afghan people have “take[n] the
lead for their own security” and reiterated the United States’ commitment to a “sovereign
Afghanistan.” Id. In addition, the President explained that the operations are residual as against
“the remnants of al Qaeda.” Id.; see also Remarks by the President at the National Defense
University (May 23, 2013), Resp’ts’ Mot., Ex. 45, ECF 15 (“Core al-Qaeda is a shell of its
former self . . . Osama bin Laden is dead, and so are most of his top lieutenants.”).
On the same day that President Obama declared an end to Operation Enduring Freedom
and the war in Afghanistan, and outlined the United States’ Train, Advise, and Assist, and
Counterterrorism missions, December 2014 Statement, Resp’ts’ Mot., Ex. 12, ECF No. 15, thenSecretary of Defense Chuck Hagel announced that the new effort in Afghanistan would fulfill
those two missions under the name “Operation Freedom’s Sentinel.”

Secretary Hagel’s

Statement, Resp’ts’ Mot., Ex. 4, ECF No. 15.
In its June 2015 Report to Congress, the Department of Defense highlights restrictions on
Operation Freedom’s Sentinel’s second mission, namely, supporting Afghan forces’
counterterrorism operations. Importantly, the DoD Report explains:
U.S. forces no longer target individuals based on affiliation or
association with any group other than al Qaeda […]. For example,
U.S. forces no longer target individuals solely on the basis of their
membership in the Taliban; however, if a member of the Taliban
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threatens U.S. or coalition forces, or provides direct support to al
Qaeda, U.S. forces may take appropriate action.
DoD Report, Resp’ts’ Mot., Ex. 18 at 9, ECF No. 15. While “Afghanistan remains dangerous,”
id. at 34, it is the Afghan security forces that now “assume[] security responsibilities for all of
Afghanistan.” Id. at 9.
Recently, President Obama announced the United States will maintain
[Its] current posture of 9,800 troops in Afghanistan through most
of the next year, 2016. Their mission will not change. Our troops
will continue to pursue those two narrow tasks . . . training Afghan
forces and going after al Qaeda. But maintaining our current
posture through most of next year, rather than a more rapid
drawdown, will allow us to sustain our efforts to train and assist
Afghan forces as they grow stronger.
President Barack H. Obama, Statement by the President on Afghanistan, The White House (Oct.
15, 2015).8 In that same address, the President reiterated that “[l]ast December . . . America’s
combat mission in Afghanistan came to a responsible end.” Id. He stated: “Americans no longer
patrol Afghan villages or valleys. Our troops are not engaged in major ground combat against
the Taliban. Those missions now belong to the Afghans, who are fully responsible for securing
their country.” Id. The troops remaining in Afghanistan exist “for continued support as Afghan
forces grow stronger” and, by the end of 2016, there will be only “5,500 troops at a small
number of bases.” Id.
Since the end of Operation Enduring Freedom and the start of Operation Freedom’s
Sentinel, “U.S. and coalition casualties have dropped significantly.” DoD Report, Resp’ts’ Mot.,
Ex. 18 at 34, ECF No. 15. As of May 31, 2015, “24 U.S. military personnel were [wounded-inaction], and one was [killed-in-action] in Operation Freedom’s Sentinel.” Id. The lower U.S.
casualties in Afghanistan are in line with the conclusion of the relevant armed conflict and the
8

Available at https://www.whitehouse.gov/the-press-office/2015/10/15/statement-president-afghanistan.

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cessation of active U.S. hostilities there, which the United States began and led under the
auspices of Operation Enduring Freedom.
IV.

Procedural History
In 2005, Mr. al-Alwi challenged his imprisonment by filing a petition for the writ of

habeas corpus through a next friend. Following the Supreme Court’s ruling in Boumediene that
Guantánamo prisoners are entitled to prompt habeas corpus hearings, Mr. al-Alwi’s petition
moved forward in this Court. The Court found no evidence of Mr. al-Alwi ever using arms
against the United States or its coalition partners. Al Alwi v. Bush, 593 F. Supp. 2d 24, 28
(D.D.C. 2008). The Court nonetheless found that Mr. al-Alwi received some training at a
Taliban-related camp, that he remained with a Taliban unit until after September 11, 2001, and
that he stayed at guesthouses associated with the Taliban and, in a single instance, al-Qaida. See
id. at 29. Based on these findings, the Court, quoting the legal standard defining the scope of
detention authority, concluded that Mr. al-Alwi was lawfully detained because it was “more
probable than not that he was ‘part of or supporting Taliban or al-Qaeda forces’ both prior to and
after the initiation of U.S. hostilities in October 2001.” Id. (quoting Boumediene v. Bush, 583
F. Supp. 2d 133, 135 (D.D.C. 2008)). The court of appeals affirmed. Al Alwi v. Obama, 653
F.3d 11, 18 (D.C. Cir. 2011), cert. denied, 132 S. Ct. 2739 (2012).
In the time since the Supreme Court’s denial of certiorari of Mr. al-Alwi’s first petition,
new factual circumstances have developed, entitling Mr. al-Alwi to habeas corpus relief.
STANDARD OF REVIEW
The government’s motion seeks dismissal of the instant habeas corpus petition or
judgment. While the government did not bother to identify the applicable standard of review and
it is unclear exactly what rule it invokes in favor of judgment, it does not matter because a

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motion for judgment under Rule 12(c) is “functionally equivalent to a Rule 12(b)(6) motion.”
Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012). Indeed, the standards of
review for the two motions are “virtually identical.”

Maniaci v. Georgetown Univ., 510

F. Supp. 2d 50, 58 (D.D.C. 2007) (citing Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir.
1984)).
When considering a motion to dismiss, the Court “must accept all of the factual
allegations contained in the complaint,” Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d
672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 91 (2007)), and “giv[e] [the
pleader] the benefit of all inferences that can be derived from the facts alleged.” United States ex
rel. Heath v. AT&T, Inc., 791 F.3d 112, 119 (D.C. Cir. 2015). All petitions that state a “plausible
claim for relief” shall survive the motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). That is, “[s]o long as the pleadings suggest a ‘plausible’ scenario to show the pleader is
entitled to relief, a court may not dismiss.” Atherton, 567 F.3d at 681 (quoting Tooley v.
Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009)). Thus, “even if it strikes a savvy judge that
recovery is very remote and unlikely,” she “may not” grant the motion, so long as the petition
states a plausible claim for relief. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)).
ARGUMENT
The AUMF authorizes imprisonment only for the duration of a particular conflict in
which a prisoner was captured. The conflict that led to Mr. al-Alwi’s capture has ended and his
continued imprisonment is unlawful. The government relies primarily on President Obama’s
recent statements to claim that the conflict continues. However, this Court need not defer to the
President’s determination on the question whether an armed conflict ended. Rather, the Court

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should answer this question in light of the full record. Specifically, the Court should assess
whether the relevant conflict that led to Mr. al-Alwi’s detention has ended, not whether the
United States is involved in some way in Afghanistan today.
The relevant conflict that led to Mr. al-Alwi’s capture and imprisonment was Operation
Enduring Freedom, the framework for the United States’ war in Afghanistan. The government
concedes that Operation Enduring Freedom has ended, it retains no detention authority in
Afghanistan itself, yet it continues to claim the authority to imprison Mr. al-Alwi in Cuba. The
record shows that the relevant conflict consisting of U.S.-led combat missions has ended and that
U.S. armed forces are currently in Afghanistan in an advisory role. Indeed, the current effort in
Afghanistan is a support effort that does not resemble Operation Enduring Freedom on any scale.
The Court should thus find that the relevant conflict that led to Mr. al-Alwi’s imprisonment has
ended and his continued detention is unlawful.
I.

THIS COURT MUST EXAMINE THE FULL RECORD TO DETERMINE
WHETHER THE RELEVANT CONFLICT ENDURES
This Court need not defer to the Executive on whether the relevant armed conflict in

Afghanistan continues to exist. Such deference would both radically limit the Court’s role in
reviewing wartime prisoners’ habeas petitions, and would stand in tension with the Supreme
Court’s holdings in Hamdi.
The legality of Mr. al-Alwi’s ongoing imprisonment at Guantánamo turns on whether the
relevant conflict that gave rise to that imprisonment is currently ongoing.

See Hamdi v.

Rumsfeld, 542 U.S. 507, 521 (2004) (plurality opinion) (“Congress’s grant of authority for the
use of ‘necessary and appropriate force’ includes the authority to detain for the duration of the
relevant conflict.”). This Court would be disabled from fair and thorough habeas review if it
were to presume that the relevant conflict ends simply when the government says it ends. See id.
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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.”).
Although the judiciary is traditionally “reluctant to intrude upon the authority of the
executive in military and national security affairs,” Dep’t of the Navy v. Egan, 484 U.S. 518, 530
(1988), the Supreme Court in Hamdi held that:
[A]s 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 conflict,
history and common sense teach use 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.
Hamdi, 542 U.S. at 530 (citing Ex parte Milligan, 4 Wall. 2, 125 (1866)). Acknowledging the
threat to liberty that such a condition poses, the Supreme Court went on to hold that detention
pursuant to the AUMF turns on whether “the record establishes” that the relevant conflict giving
rise to a petitioner’s detention persists. Id. at 521. “Record” implies judicial review of the facts.
See Al Warafi v. Obama, No. 09-2368, 2015 WL 4600420, at *3 (D.D.C. July 20, 2015) (“A
‘record’ implies a court, and though Hamdi does not explicitly say that the record in such cases
must be reviewed . . . by a court rather than the Executive, no other reading makes sense.”).
In Al Warafi, Judge Lamberth ruled that “the one constant in this history of habeas review
has been the independent power of a judge to assess the actions of the Executive.” Id. (quoting
Al Bihani v. Obama, 590 F.3d 866, 880 (D.C. Cir. 2010) (emphasis in original). He concluded
that “[b]y requiring that there be a record to review, and a court to review it, Hamdi ‘appears to
limit the President’s authority to detain.’” Id. (quoting Hamdi 542 U.S. at 588 (Thomas, J.,
dissenting)).

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The government’s citation to Ludecke v. Watkins, 335 U.S. 160, 169–70 (1948), for the
proposition that a determination on whether a war has ended is a “matter[] for political judgment
for which judges have neither technical competence nor official responsibility” is inapposite.
Resp’ts’ Mot. at 28. Ludecke expressly left open the question of when it would be incumbent
upon the judiciary to find that a war “had in fact ended.” Ludecke, 335 U.S. at 169. Judge
Lamberth found the answer to Ludecke’s open question in Hamdi and Boumediene: were the
judiciary to “abstain from questions” regarding the continuing existence of a conflict, it would
grant “the political branches . . . the power to switch the Constitution on or off at will.”
Boumediene, 553 U.S. at 765. Thus, the determination regarding the ongoing existence of a
given conflict cannot be left exclusively to the political branches because “even the war power
does not remove constitutional limitations safeguarding essential liberties.” Al Warafi, 2015 WL
4600420, at *8 (quoting Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934)).
The other cases that the government cites also do not bear on the one at hand. For
example, in United States v. Anderson, the Court deferred to a Presidential proclamation that the
Civil War has ended for purposes of reviewing cases under the Abandoned or Captured Property
Act, which allowed any person to reclaim property within two years of the war’s end. The Court
found that “Congress did not intend to impose on this class of persons the necessity of deciding
[the date] for themselves.” 76 U.S. 56, 70-71 (1869). In The Protector, which involved a similar
statute of limitations as the one in Anderson, the Court relied on executive proclamations
declaring the end of war only “in the absence of more certain criteria.” 79 U.S. 700, 702 (1871).
The Three Friends did not involve the question whether an armed conflict had ended, but rather
asked whether the political branches recognized belligerency or political revolt in Cuba—in
other words, “the existence of war in a material sense [or] of war in a legal sense.” 166 U.S. 1,

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62–64 (1897). Commercial Trust Co. of New Jersey v. Miller addressed the question whether
possession of property held in trust for an alien enemy is equivalent to physical seizure. 262
U.S. 51, 57 (1923). And although the Supreme Court in Baker v. Carr decided that political
branches determine the “dates of duration of hostilities,” 369 U.S. 186 (1962), the Court also
recognized that “deference rests on reason, not habit.” Id. at 213. When “clearly definable
criteria for decision may be available … the political question barrier falls away.” Id.
Finally, the government’s use of Maqaleh is unavailing. The issue before the Maqaleh
court was whether it had jurisdiction to adjudicate habeas corpus petitions brought by prisoners
held by the United States at Bagram Air Base in Afghanistan. Maqaleh v. Hagel, 738 F.3d 317,
317 (D.C. Cir. 2013). The petitioners in that case never contested the ongoing nature of the war
in Afghanistan at the time. See Jt. Br. for Pet’rs-Appellants at 13, Al Maqaleh v. Obama, Nos.
12-5404, 125399, 12-5401 (D.C. Cir. Apr. 27, 2013) (conceding “Bagram’s location within a
theatre of war”). As a result, the issue whether the existence vel non of ongoing conflict is a
political question was never presented to the court of appeals.9
“[U]nless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial
Branch to play a necessary role in maintaining this delicate balance of governance, serving as an
important judicial check on the Executive’s discretion in the realm of detentions.” Hamdi, 542
U.S. at 536 (citing INS v. St. Cyr, 533 U.S. 289, 301 (2001)). Mr. al-Alwi’s petition must be
heard.

In their motion to dismiss, Respondents contend that Mr. al-Alwi “does not dispute” that “determinations
concerning the end of hostilities are reserved for the political branches.” Resp’ts’ Mot. 31. This characterization
misunderstands Mr. al-Alwi’s argument. Although the petition for habeas corpus reprises statements from the
President and Secretary of Defense, it presents those as evidence of the conflict’s end. Nowhere does Mr. al-Alwi
concede or imply that the Court is limited to examination of that evidence without more. Ultimately, as the Petition
and this Opposition make clear, this Court has the authority to determine if the relevant conflict has ended as a
matter of law and fact based on its examination of the full record.
9

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II.

THE CONFLICT THAT LED TO MR. AL-ALWI’S IMPRISONMENT HAS
ENDED
The relevant conflict in which Mr. al-Alwi was captured, one framed by Operation

Enduring Freedom, has ended.

Notwithstanding current U.S. military involvement in

Afghanistan, his continued imprisonment is now unlawful.
In Hamdi, the Supreme Court held that AUMF authority permitting the Executive to use
“necessary and appropriate force” against the Taliban, al-Qaida, and associated forces includes
the authority to detain. 542 U.S. at 521. The Hamdi Court stressed that the AUMF does not
authorize indefinite detention. See 542 U.S. at 521 (“[W]e agree that indefinite detention for the
purpose of interrogation is not authorized.”). Rather, the Court held that detention is lawful
under the AUMF only “for the duration of the particular conflict in which [the prisoner was]
captured.” 542 U.S. at 518. Indeed, as Justice Kennedy observed in Rasul:
Perhaps, where detainees are taken from a zone of hostilities,
detention without proceedings or trial would be justified by
military necessity for a matter of weeks; but as the period of
detention stretches from months to years, the case for continued
detention to meet military exigencies becomes weaker.
Rasul v. Bush, 542 U.S. 466, 488 (2004) (Kennedy, J., concurring); see also al Odah v. Obama,
62 F. Supp. 3d 101, 113 (D.D.C. 2014) (stating that “a court’s determination of al-Qaeda
membership does not justify a ‘lifetime detention’”). Certainly, as Hamdi holds, when the
“relevant conflict” has ended as it has here, 542 U.S. at 521, the case for continued detention
expires with it.
Of course, Hamdi’s assessment of whether the “relevant conflict” endures was informed
by Article 118 of the Third Geneva Convention. See 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”
(citing Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War
16

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[hereinafter “Third Geneva Convention”], Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135)). But
the reference to “active hostilities” in Article 118 was not intended to require absolute peace
between two parties to an armed conflict before mandating the release of prisoners of war.
Rather, the phrase “active hostilities” is a term of art that contemplates the possibility that some
conflict might continue after the better part of fighting has subsided. In explaining the proper
interpretation of the Convention, the Commentary to the Third Geneva Convention states that
“captivity is a painful situation which must be ended as soon as possible,” and that “prisoners of
war should not be retained in captivity on various pretexts.”10 J. Pictet, et al., Int’l Comm. of
Red Cross, Commentary to the Geneva Convention (III) Relative to the Treatment of Prisoners of
War 546 (1960) [hereinafter “Third Convention Commentary”].11
Unlike Article 118 to the Third Geneva Convention, Article 133 of the Fourth Geneva
Convention states that “[i]nternment shall cease as soon as possible after the close of hostilities.”
Fourth Geneva Convention art. 133 (emphasis added). The Commentary to this particular
convention acknowledges the reality that hostilities may continue to occur even after active
combat has ended: “[T]his does not mean . . . that internment can always be brought to an end
shortly after the end of active hostilities . . . The disorganization caused by war may quite
possibly involve some delay before the return to normal.” J. Pictet, et al., Int’l Comm. of Red
Cross, Commentary to the Geneva Convention (IV) Relative to the Protection of Civilian Persons

10

The Commentaries to the Geneva Convention are not part of the Conventions themselves, and therefore have not
been ratified by Congress or the President. Nevertheless, the Commentaries provide helpful context for
understanding the Conventions because they were drafted by staff members of the International Red Cross who
worked on the revision of the Conventions. Indeed, the Supreme Court has previously cited to the Third Convention
Commentary when considering the applicability of the Geneva Conventions to Guantánamo prisoners. See Hamdan
v. Rumsfeld, 548 U.S. 557, 631 (2006) (“[T]he commentaries also make clear that the scope of application of
[Common Article 3] must be as wide as possible.” (quoting Third Convention Commentary at 36)).
11

Available at https://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-III.pdf.

17

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in Time of War 515 (1960) [hereinafter “Fourth Convention Commentary”].12

No such

qualification as to the “delay before the return to normal” exists in the text of Article 118 or its
Commentary. See Third Geneva Convention art. 118; Third Convention Commentary at 540–53.
Clearly then, Article 133 differentiates the requirement to release civilian prisoners from the
requirement to release war captives such as Mr. al-Alwi by establishing the term “close of
hostilities” as a point in time that may occur after the “cessation of active hostilities.” See Fourth
Convention Commentary at 514–15; see also Hamdan, 548 U.S. at 578.
The relevant conflict in which Mr. al-Alwi was captured was Operation Enduring
Freedom, the framework for the U.S.-led war in Afghanistan, consisting of U.S.-led combat
missions pursuant to AUMF authority. During Operation Enduring Freedom, the United States
deployed hundreds of thousands of troops to Afghanistan, and casualties reached significant
levels. As part of Operation Enduring Freedom, the United States engaged in unilateral combat
operations—or active hostilities—against the Taliban and al-Qaida, and targeted individuals
based on their membership in either group.
In contrast, the current U.S. effort in Afghanistan under the banner of Operation
Freedom’s Sentinel is limited to U.S. training and assistance for Afghan security forces, and
support for Afghan-led counterterrorism missions.

The United States is no longer acting

unilaterally in Afghanistan as it was during Operation Enduring Freedom where it led combat
missions and engaged in active hostilities pursuant to its authority derived from the AUMF.
Today, the Bilateral Security Agreement between the United States and Afghanistan strictly
constrains all U.S. military activities in Afghanistan. As President Obama has stated on more
than one occasion, that agreement now provides “the legal framework” for U.S. involvement in
the current conflict between the Government of Afghanistan and its adversaries in Afghanistan.
12

Available at https://www.loc.gov/rr/frd/Military_Law/pdf/GC_1949-IV.pdf.

18

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President’s BSA Statement, Resp’ts’ Mot., Ex. 10, ECF No. 15; see also May 2014 Statement,
Resp’ts’ Mot., Ex. 9, ECF No. 15 (declaring that BSA gives U.S. troops the authorities they need
to fulfill their missions while respecting Afghan sovereignty). The number of U.S. troops in
Afghanistan is less than one-tenth what it was at Operation Enduring Freedom’s peak, and
casualties have dropped dramatically. See May 2014 Statement, Resp’ts’ Mot., Ex. 9 at 2, ECF
No. 15. The United States no longer engages in unilateral combat operations against the Taliban
or al-Qaida, no longer wields any wartime detention authority inside Afghanistan, and generally
no longer targets individuals based on their affiliation or membership with the Taliban. DoD
Report, Resp’ts’ Mot., Ex. 18 at 9, ECF No. 15. Since the particular conflict in which Mr. alAlwi was captured has ended, his continued imprisonment is unlawful.
A. Unlike Operation Enduring Freedom, the Current U.S. Effort in Afghanistan Is
Constrained by the Bilateral Security Agreement
During Operation Enduring Freedom, the United States led many unilateral combat
missions under AUMF authority. See Remarks by the President in a Press Conference, supra
(“In 2001, after the heartbreaking tragedy of 9/11, we had a very specific set of missions that we
had to conduct, and the AUMF was designed to pursue those missions.”); see also AUMF § 2(a)
(authorizing “necessary and appropriate force” against those responsible for the September 11,
2001, attacks). In contrast, U.S. forces are now generally prohibited from conducting combat
operations in Afghanistan, and specifically may not conduct unilateral combat operations there.
BSA art. 2, ¶¶ 1, 4.
When the United States and Afghanistan executed the Bilateral Security Agreement and
President Obama announced the end of Operation Enduring Freedom, the controlling legal
framework for U.S. involvement in Afghanistan became that Agreement. The President stated
that “[the Agreement] provides our military service members the necessary legal framework to
19

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carry out two critical missions after 2014.” President’s BSA Statement, Resp’ts’ Mot., Ex. 10,
ECF No. 15. The relevant conflict giving rise to Mr. al-Alwi’s capture was characterized by
unilateral U.S. military action in Afghanistan—in other words, active hostilities. In contrast, the
Bilateral Security Agreement drastically constrains the United States’ current, reduced
involvement in Afghanistan and limits U.S. military activity to an advisory and supportive role.
In line with the Bilateral Security Agreement, the United States is currently pursuing two
missions in Afghanistan. The first is training, advising, and assisting the Afghan National
Defense and Security Forces.

The second is supporting Afghan forces’ counterterrorism

operations. Indeed, the Afghan security forces are now fully “responsible for securing the people
and territory of Afghanistan.” BSA art. 2, ¶ 3; see also id. ¶ 2 (“[T]he United States shall
undertake supporting activities, as may be agreed.”).
The Bilateral Security Agreement between the United States and Afghanistan provides
that the “United States forces shall not conduct combat operations in Afghanistan.” BSA, art. 2,
¶ 1. While the Bilateral Security Agreement permits U.S. forces to support Afghan forces in
counterterrorism combat operations, the Agreement also specifically prohibits the U.S. military
from conducting unilateral counterterrorism operations:
The Parties agree to continue their close cooperation and
coordination toward [defeating al-Qaida and its affiliates], with the
intention of protecting U.S. and Afghan national interests without
unilateral U.S. military counter-terrorism operations.
BSA art. 2, ¶ 4. The Bilateral Security Agreement further constrains U.S. counterterrorism
operations in Afghanistan as follows:
U.S. military counterterrorism operations are intended to
complement and support ANDSF’s counterterrorism operations,
with the goal of maintaining ANDSF lead, and with full respect for
Afghan sovereignty and full regard for the safety and security of
the Afghan people, including in their homes.
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Id. Under the Agreement, therefore, the United States is prohibited from engaging in both
unilateral combat and counterterrorism operations.
The United States is no longer in a combat role in Afghanistan.

Remarks by the

President in a Press Conference, supra. Rather, U.S. forces simply “support[] counterterrorism
operations against the remnants of al Qaeda.” May 2014 Statement, Resp’ts’ Mot., Ex. 9 at 2,
ECF No. 15.13 Further establishing that the U.S. combat role has ended in Afghanistan, the
United States handed over custody of Afghan nationals to the Afghan government as early as
March 2013, as the phased drawdown of the U.S.-led war and of active hostilities commenced.
2014 WPR Report, Resp’ts’ Mot., Ex. 6 at 1, ECF No. 15. Today, the United States wields no
wartime detention authority inside Afghanistan, as the Bilateral Security Agreement provides
that “United States forces shall not arrest or imprison Afghan nationals, nor maintain or operate
detention facilities in Afghanistan.” BSA art. 3, ¶ 3. Indeed, shortly after executing the Bilateral
Security Agreement, the United States officially turned over exclusive control of the Bagram
prison to the Afghan government. See U.S. closes Bagram prison, says no more detainees in
Afghanistan, supra. Against that backdrop, it defies understanding that the government would
nonetheless cling to its asserted authority to continue to detain Mr. al-Alwi in Cuba.
While the United States continues to support Afghan forces in military operations, it no
longer exhibits the trappings of a party leading unilateral, active hostilities inside Afghanistan.
Its power to imprison Mr. al-Alwi was incident to the particular conflict that led to his capture,
Operation Enduring Freedom. Under the Bilateral Security Agreement, the United States would

13

U.S. Secretary of Defense Ashton B. Carter has pointed to sporadic U.S. military action in other countries and
affirmed that such action “doesn’t represent us entering the combat role.” Krishnadev Calamur, U.S. Direct Action
Against
the
Islamic
State,
The
Atlantic,
October
27,
2015,
available
at
http://www.theatlantic.com/international/archive/2015/10/carter-syria-iraq-isis/412681/.

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be unable to imprison Mr. al-Alwi inside Afghanistan today.

The current U.S. effort in

Afghanistan is one of support for the Afghan people in their fight.
B. The Particular Conflict that Gave Rise to Mr. al-Alwi’s Imprisonment Differed
Materially from the Current Support Effort in Afghanistan
The United States’ involvement in Afghanistan today does not resemble the war it led
under the auspices of Operation Enduring Freedom. The characteristics of that conflict—in
connection with which Mr. al-Alwi was captured—differ starkly from those that define the
current engagement in Afghanistan. Courts have looked to several factors when determining
whether armed conflict has ended, including:
[T]he length, duration, and intensity of the hostilities between the
parties, whether there was protracted armed violence between the
governmental authorities and organized armed groups; whether
and when the United States decided to employ the combat
capabilities of its armed forces to meet the al Qaeda threat; the
number of persons killed or wounded on each side; . . .statements
of the leaders of either side indicating their perceptions regarding
the existence of an armed conflict . . . and any other facts and
circumstances . . . relevant.
United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1190 (U.S.C.M.C.R. 2011), vacated on other
grounds sub nom. Al Bahlul v. United States, 792 F.3d 1 (D.C. Cir. 2015).14
Upon consideration of the record, it should be apparent to this Court that Operation
Enduring Freedom’s end, followed by Operation Freedom’s Sentinel’s beginning, present a
break in the “relevant conflict,” such that the AUMF no longer authorizes Mr. al-Alwi’s
imprisonment. As detailed above, the United States engaged in unilateral combat missions
during Operation Enduring Freedom under AUMF authority. Conversely, the Bilateral Security
Agreement provides that “U.S. forces shall not conduct combat operations in Afghanistan,” BSA
14

While the U.S. Court of Military Commission Review is not an Article III court, its decisions are nevertheless
reviewable by Article III courts—the D.C. Circuit and the U.S. Supreme Court. See 10 U.S.C. § 950g(a). The court
generated these factors as it weighed whether the defendant’s conduct violated the Military Commissions Act of
2006. Al Bahlul, 820 F. Supp. 2d at 1190.

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art. 2, ¶ 1, and expressly prohibits all “unilateral U.S. military counter-terrorism operations”
there. BSA art. 2, ¶ 4. While that alone demonstrates that the “relevant conflict” that led to Mr.
al-Alwi’s imprisonment has ended, application of the Al Bahlul factors further bolsters that
conclusion.
An examination of the number of troops deployed and casualties registered in
Afghanistan reveals that the current U.S. military engagement in support of the Government of
Afghanistan under Operation Freedom’s Sentinel does not approach the figures seen during the
U.S.-led war. There were more than 100,000 U.S. troops deployed in Afghanistan at Operation
Enduring Freedom’s peak. Currently, approximately one tenth of that number remains, and the
United States intends to further draw down its military presence. Casualties during the war
reached a peak level that is unlikely to be reached during Operation Freedom’s Sentinel.
Specifically, 20,027 U.S. military personnel were wounded-in-action (WIA), and 1,832 were
killed-in-action (KIA) during Operation Enduring Freedom. DoD Report, Resp’ts’ Mot., Ex. 18
at 29, ECF No. 15. Under the banner of Operation Freedom’s Sentinel, as of May 15, 2015, one
member of the U.S. armed forces has been killed-in-action, and 24 have been wounded-in-action.
Id. at 34.
President Obama has attributed this drop in casualties to the conclusion of the United
States’ combat role in Afghanistan. See Remarks by President Obama and President Ghani of
Afghanistan in Joint Press Conference (Mar. 24, 2015), Resp’ts’ Mot., Ex. 19 at 4, ECF No. 15
(“Casualties have come down precipitously … . That has occurred precisely because we’re not
in a combat role.”). President Obama noted that Afghan security forces now bear the brunt of
the fighting and have experienced “significant casualties.” Id. (“As we’ve drawn down, [the
Afghan security forces] stood up, and they’re fighting.”).

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With respect to the “al-Qaeda threat,” Al Bahlul, 820 F. Supp. 2d at 1190, the Bilateral
Security Agreement prohibits the United States from engaging in unilateral counterterrorism
operations. BSA art. 2, ¶ 4. Even if the United States is currently engaged in residual fighting
against the remnants of al-Qaida and Taliban pursuant to the constraints of the Agreement, it is
the Afghan security forces that have taken the lead on counterterrorism operations.
The current involvement in Afghanistan is not a continuation of the U.S. war in that
country, but a support mission for the Afghan forces against the threats they are facing. Indeed,
a significant security threat from the Taliban and al-Qaida may exist for decades to come, but
that fight now primarily belongs to the Government of Afghanistan. The President confirmed as
much when he discussed temporarily maintaining the current number of troops in Afghanistan:
[The troops’] mission will not change. Our troops will continue to
pursue those two narrow tasks . . . training Afghan forces and
going after al Qaeda. But maintaining our current posture through
most of next year, rather than a more rapid drawdown, will allow
us to sustain our efforts to train and assist Afghan forces as they
grow stronger.
President Barack H. Obama, Statement by the President on Afghanistan, supra. Thus, although
the President has paused the drawdown, the current, limited mission of U.S. troops in
Afghanistan remains unchanged—to train, assist, and advise the Afghan military, and engage in
coordinated counterterrorism efforts with Afghan consent.
A final relevant factor enumerated in Al Bahlul deserves mention: statements from the
President regarding the existence of armed conflict.

Al Bahlul, 820 F. Supp. 2d at 1190.

Throughout its motion, the government mischaracterizes Mr. al-Alwi’s argument. Petitioner’s
position in this case is not “that earlier statements by the President constitute the requisite
determination” without more. Resp’ts’ Mot. 3. Rather, the President’s statements—including
his refrain to the American people that “America’s combat mission in Afghanistan came to a
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reasonable end,” President Barack H. Obama, Statement by the President on Afghanistan,
supra—feature among various evidentiary elements in the record that this Court must consider
holistically as it assesses whether the relevant conflict has ended.
In light of the considerations above, the present U.S. support effort in Afghanistan differs
far too greatly from the specific conflict that gave rise to Mr. al-Alwi’s imprisonment to justify
his continued imprisonment.
C. The United States No Longer Targets Taliban Members
While this Court found Mr. al-Alwi to be part of a Taliban unit,15 the United States no
longer actively targets individuals based on their affiliation with the Taliban, except in selfdefense or where the individual provides direct support to al-Qaida. DoD Report, Resp’ts’ Mot.,
Ex. 18 at 9, ECF No. 15. Adjudicating Mr. al-Alwi’s first habeas corpus petition, this Court held
that Mr. al-Alwi “stay[ed] at certain guesthouses in Pakistan and Afghanistan … [that] were
closely associated with the Taliban and that one guesthouse had connections with al Qaeda,” that
Mr. al-Alwi received some training at a “Taliban-related camp and thereafter traveled to two
different fronts over the following year to support Taliban fighting forces,” and that Mr. al-Alwi
“remained with his Taliban unit well after September 11, 2001.”

Al Alwi v. Bush, 593

F. Supp. 2d 24, 28 (D.D.C. 2008). The D.C. Circuit affirmed. Al Alwi v. Obama, 653 F.3d 11,
18 (D.C. Cir. 2011).

Neither this Court nor the court of appeals relied upon the utterly

unsubstantiated allegations that Mr. al-Alwi served as Osama bin Laden’s bodyguard or received
any training at an al-Qaida training camp. Id. at 14 n.3.16
Without conceding the accuracy of this Court’s prior factual findings, in the instant action, Mr. al-Alwi does not
seek to re-litigate those findings.
15

The government’s allegations regarding Mr. al-Alwi’s supposed connection with al-Qaida were laughably thin
and, ultimately, were not relied on by this Court. See, e.g., Br. for Appellant at 8–11, Al Alwi v. Obama, No. 095125 (D.C. Cir. Aug. 9, 2010). In its instant Motion, the government cavalierly asks the Court to stay its hand, if it
were inclined to rule for Mr. al-Alwi, and to instead give the government yet another opportunity to reframe its case.
16

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A prisoner must be released when the particular conflict in which he was captured ends.17
Hamdi, 542 U.S. 518. The United States routinely engaged in unilateral combat missions against
the Taliban during the war framed by Operation Enduring Freedom but, in its current posture in
Afghanistan, it generally “no longer target[s] individuals solely on the basis of their membership
in the Taliban.” DoD Report, Resp’ts’ Mot., Ex. 18 at 9, ECF No. 15. While the D.C. Circuit
found that “release is only required when the fighting stops,” Al Bihani v. Obama, 590 F.3d 866,
874 (D.C. Cir. 2010), that case must be read consistently with Hamdi. The “fighting” Al Bihani
refers to is fighting that occurs during the “relevant conflict” that gave rise to imprisonment, not
just any fighting taking place in Afghanistan. The United States retains a degree of military
involvement in Afghanistan subject to the constraints of the Bilateral Security Agreement, but
Afghan forces are now leading the fight.

See BSA art. 2, ¶ 4 (highlighting the “goal of

maintaining ANDSF lead”); see also May 2014 Statement, Resp’ts’ Mot., Ex. 9 at 2, ECF No. 15
(characterizing the counterterrorism mission as a support effort against “the remnants of al
Qaeda”). While Taliban, al-Qaida, and other forces may pose a threat in Afghanistan for some
time to come, that is now primarily the Government of Afghanistan’s fight. Current U.S. support
for Afghanistan’s fight cannot justify Mr. al-Alwi’s continued detention.
D. The Cases Respondents Cite Are Inapposite
Finally, Al-Bihani, Al Kandari, and Al Warafi cannot bear the weight of the government’s
assertion that the particular conflict that led to Mr. al-Alwi’s imprisonment endures. The factual

Resp’ts’ Mot. at 39 n. 19. The government offers absolutely no reason in law, logic, or equity why it should be
given a second bite at the apple. The Court should not accede to that shocking request. Mr. al-Alwi has been in
U.S. custody at Guantánamo since 2002 and “the costs of delay can no longer be borne by those who are held in
custody.” Boumediene v. Bush, 553 U.S. 723, 795 (2008).
While the D.C. Circuit found that “release is only required when the fighting stops,” Al Bihani v. Obama, 590
F.3d 866, 874 (D.C. Cir. 2010), Al Bihani must be read consistently with Hamdi. The “fighting” referred to in Al
Bihani must be read to mean fighting that occurs during the “relevant conflict” that gave rise to imprisonment, not
just any fighting.
17

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record before this Court differs dramatically from that presented in Al-Bihani back in 2010. The
figures at that time, current as of October 22, 2009, were 34,800 U.S. troops and 71,030 total
coalition troops present in Afghanistan. Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir.
2010). As noted above, the situation in Afghanistan today has changed dramatically, now that
the relevant conflict framed by Operation Enduring Freedom has ended and that the current U.S.
military involvement in Afghanistan is constrained by the Bilateral Security Agreement. This
Court must make its own determination as to whether the relevant conflict persists in 2015 based
on the facts now before it.
The government’s reliance on Al Warafi and Al Kandari is also unavailing because the
petitioners there argued “that recent statements by the President conclusively prove that the
hostilities that justified his detention, those between the United States and Taliban, have ended.”
Al Warafi v. Obama, No. 09-2368, 2015 WL 4600420, at *1 (D.D.C. July 30, 2015); see also Al
Kandari v. United States, 15-CV-329 (CKK), Classified Memorandum Opinion (D.D.C. Aug.
31, 2015), Resp’ts’ Mot., Ex. 1 at 8, ECF No. 15 (“Here the parties dispute whether Petitioner’s
detention is lawful, both arguing that the President’s and / or other government officials’
statements regarding the status of the relevant conflict support their respective positions.”). This
case differs from those earlier cases because Mr. al-Alwi does not rely on the President’s
statements as legally conclusive that the war in Afghanistan is over. Instead, the President’s
statements are but one factor among many informing the conclusion that the United States is no
longer engaged in active hostilities and is no longer prosecuting the particular conflict that gave
rise to Mr. al-Alwi’s imprisonment.
As detailed above, other factors also evidence a cessation of the relevant conflict,
including the U.S. military’s transition from an active combat mission to one of support, the

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execution of the Bilateral Security Agreement, the expiration of U.S. detention authority inside
Afghanistan, and the significant decrease in troop levels. Taken together, these factors form the
factual basis for Mr. al-Alwi’s claim that the United States has ended the relevant conflict, a
basis which is wholly different from the petitioner’s reliance on the President’s words alone in Al
Warafi. See Al Warafi, 2015 WL 4600420, at *7 (quoting petitioner’s motion, which argued that
the President’s statements were “a conclusive, unreviewable determination of the end of combat
for purposes of detaining prisoners captured in the war in Afghanistan against the Taliban”).
III.

EVEN WERE THIS COURT TO DETERMINE THAT THE RELEVANT
CONFLICT ENDURES, MR. AL-ALWI’S INDEFINITE IMPRISONMENT IS
UNLAWFUL
Writing for the plurality in Hamdi, Justice O’Connor anticipated the possibility of a

conflict so unlike previous conflicts that conventional law of war principles governing wartime
detention would no longer apply.
[W]e understand Congress’ grant of authority for the use of
“necessary and appropriate force” to include authority to detain for
the duration of the relevant conflict, and our understanding is
based on longstanding law-of-war principles. If the practical
circumstances of a given conflict are entirely unlike those of the
conflicts that informed the development of the law of war, that
understanding may unravel.
Hamdi, 542 U.S. at 521.
Were this Court inclined to find that the conflict leading to Mr. al-Alwi’s capture and
imprisonment is ongoing, then, in the alternative, Mr. al-Alwi respectfully suggests that, after
fourteen years, the scenario Justice O’Connor described has come to pass and conventional
understandings of longstanding principles—including the authority to detain for the duration of
the conflict—have unraveled. Lifetime imprisonment was simply never contemplated by the

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framers of the Geneva Conventions. At this stage, therefore, the Court should set Mr. al-Alwi
free.
IV.

MR.
AL-ALWI
RETAINS
INTERNATIONAL LAW

HIS

RIGHTS

UNDER

CUSTOMARY

Mr. al-Alwi does not directly invoke the Geneva Conventions or its protocols in these
habeas proceedings, which renders the provisions of the Military Commissions Act that the
government cites, Resp’ts’ Mot. 42, irrelevant here. Rather, Mr. al-Alwi retains and invokes his
rights under the norms enshrined in customary international law, which include Article 75 of
Additional Protocol I to the Geneva Conventions. Pet. ¶¶ 38–44. The government concedes that
“the United States has chosen … to treat the principles set forth in Article 75 as applicable to any
individual it detains in an international armed conflict.” Resp’ts’ Mot. 40 (emphasis in the
original).

The government contends, however, that “the conflict at issue here” is a non-

international armed conflict. Id.
The government is incorrect. Mr. al-Alwi was captured during an international armed
conflict and retains all of the protections afforded by customary international law to prisoners of
his condition. Indeed, even on January 16, 2002, the date that Mr. al-Alwi was finally rendered
to Guantánamo, Pet. ¶ 2, an international armed conflict raged on in Afghanistan.
The government itself has acknowledged that the United States still characterized the
conflict at that point in time as an international armed conflict. Resp’ts’ Opp’n to Mot. to
Compel Mixed Med. Comm’n at 28, Aamer v. Obama, No. 04-cv-2215 (D.D.C. July 2, 2015);
see also, News Release: Geneva Convention on prisoners of war, Int’l Comm. of the Red Cross
(Feb. 9, 2002) (welcoming “the United States’ reaffirmation of the applicability of the Third
Geneva Convention to the international armed conflict in Afghanistan”).18
18

Available at https://www.icrc.org/eng/resources/documents/misc/57jrm3.htm.

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There is also no dearth of authoritative commentary confirming this characterization of
the conflict at that historical juncture. See, e.g., Françoise J. Hampson, Afghanistan 2001-2010,
in International Law and the Classification of Conflicts 242, 242–43 (Elizabeth Wilmshurst, ed.,
2012) (noting existence of international armed conflict in Afghanistan between the Taliban and
al-Qaeda, on one side, and the United States and coalition partners, on the other, from October
2001 at least until installation of Hamid Karzai as President of Afghanistan in June 2002); Robin
Geiss & Michael Siegrist, Has the Armed Conflict in Afghanistan Affected the Rules on the
Conduct of Hostilities, 93 Int’l Rev. Red Cross 11, 13 (2011) (stating it is “widely accepted” that
there was an “international armed conflict” between U.S. forces and “the Taliban governing
Afghanistan, lasting from 7 October 2001 to 18 June 2002”); Gary D. Solis, The Law of Armed
Conflict: International Humanitarian Law in War 211 (2010) (stating that U.S. invasion of
Afghanistan in October 2001 initiated “an armed conflict between two state parties to the 1949
Geneva Convention, a common Article 2 international armed conflict” to which “the 1949
Geneva Conventions in their entirety” applied).19
Irrespective of whether the conflict in Afghanistan remained international in nature after
June 2002, Mr. al-Alwi retains today the protections he enjoyed pursuant to customary
international law at the time of his capture during an international armed conflict. See Third
Geneva Convention art. 118 (stating that captives retain protections “until their final release and
repatriation”). In Iraq, for example, prisoners in U.S. custody prior to the transfer of sovereignty
on June 28, 2004, retained any status and protections that they enjoyed under the Geneva
Conventions even after that date and the transformation of that conflict. Article 5 was crafted to
19

One respected scholar of international humanitarian law goes even further, not only agreeing that the conflict was
international in nature from its inception, but arguing that it remained international past the installation of Hamid
Karzai and at least through the time of writing in 2011. Yoram Dinstein, Terrorism and Afghanistan, in
International Law Studies, Vol. 85, The War in Afghanistan: A Legal Analysis, Michael N. Schmitt, ed., at 51
(2011).

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ensure that captives like Mr. al-Alwi could not be stripped of their protections and benefits, a
concern that loomed large during and after World War II.

See, e.g., Third Convention

Commentary at 73–77.
It is important to note that there is no controlling authority that the relevant conflict in
Afghanistan in connection with which Mr. al-Alwi was imprisoned became non-international in
nature after June 2002. The Supreme Court specifically did not reach the question because it
found that at least Common Article 3 of the Geneva Conventions applies, since that provision
reaches both international and non-international armed conflicts, and that was enough for the
Supreme Court to decide the case before it. See Hamdan v. Rumsfeld, 548 U.S. 557, 628-29
(2006) (“We need not decide the merits of this argument because there is at least one provision
of the Geneva Conventions that applies here even if the relevant conflict is not one between
signatories.”).
The court of appeals has not squarely addressed the characterization of the conflict at
issue, either, and a recent concurring opinion suggests an acceptance that it is an open question.
See Al Warafi v. Obama, 716 F.3d 627, 633 (Brown, J., concurring), cert. denied, 134 S. Ct.
2134 (2014) (“Because Al Warafi has failed to produce the requisite indicia of protected status,
however, we need not reach the vexing questions whether Al Warafi was a member of a
transnational terrorist organization or the armed forces of a High Contracting Party [...].”).
In sum, no higher court has ruled that the conflict out of which Mr. al-Alwi’s open-ended
imprisonment arose became non-international in nature.
Finally, it bears emphasis that this Court can characterize the conflict out of which this
case arose as an international armed conflict regardless of Respondents’ view. See United States
v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992) (determining over government objections that U.S.

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invasion of Panama was an international armed conflict two years after that conflict was over,
that the Third Geneva Convention applied, and that Manuel Noriega remained a prisoner of war);
see also Al Warafi, 2015 WL 4600420, at *5, *7 (rejecting “proposition that it is the President
and not this Court who must decide whether active hostilities exist” and holding that hostilities
are ongoing).
In light of his capture in 2001, while an international armed conflict raged in
Afghanistan, Mr. al-Alwi retains the protections afforded under the customary international legal
norms he cites in his Petition.
CONCLUSION
For the reasons detailed above, this Court should deny the government’s motion to
dismiss.
Dated: October 30, 2015
Respectfully submitted,
______/s/____________
Ramzi Kassem
Supervising Attorney
Deema Azizi
Thomas Rizzuti
Law Student Interns
Main Street Legal Services
City University of New York
2 Court Square
Long Island City, NY 11101
(718) 340-4558
Counsel for Petitioner

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOATH HAMZA AHMED AL-ALWI,
Petitioner/Plaintiff,
Case No. 15-CV-681 (RJL)
v.
BARACK H. OBAMA, et al,
Respondents/Defendants.

[PROPOSED] ORDER
Upon consideration of the instant Petition for Writ of Habeas Corpus, Respondents’
Motion to Dismiss, and Petitioner’s Opposition to Respondents’ Motion to Dismiss, it is hereby
ORDERED that the Motion to Dismiss or for Judgment is denied; and it is
FURTHER ORDERED that the Petition for Writ of Habeas Corpus is granted; and it is
FURTHER ORDERED that the government shall take all necessary and appropriate steps
to facilitate Petitioner Moath al-Alwi’s immediate release.
IT IS SO ORDERED.
Date: _______________________
________________________
Hon. Richard J. Leon
United States District Judge