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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOATH HAMZA AHMED AL-ALWI
(ISN 28),
Petitioner,
Civil Action No. 15-CV-681 (RJL)
v.
BARACK H. OBAMA, et al.,
Respondents.

RESPONDENTS’ REPLY MEMORANDUM IN
SUPPORT OF MOTION TO DISMISS OR FOR JUDGMENT
Petitioner Moath Hamza Ahmed Al-Alwi (ISN 28) remains lawfully detained under the
2001 Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107-40, § 2(a), 115 Stat.
224 (2001), as informed by the laws of war, because active hostilities against al-Qa’ida, Taliban,
and associated forces are currently ongoing, both as a factual matter and as declared by the
President of the United States.
Relying on recent statements by the President, Petitioner argued in his habeas petition
that his detention under the AUMF was unlawful because the President declared an end to the
United States’ combat mission in Afghanistan at the end of 2014. See Petition ¶¶ 22-37 (ECF
No. 1). Respondents’ Motion to Dismiss or For Judgment (ECF Nos. 12 & 15) explained why
this argument lacked merit. The Supreme Court has consistently held for more than 100 years
that decisions regarding the duration of hostilities are properly left to the political branches and,
here, the President has clearly stated, consistent with the obvious factual situation, that active
hostilities against al-Qa’ida, Taliban, and associated forces remain ongoing.

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In response to Respondents’ motion, Petitioner filed an opposition memorandum that
advances an entirely new theory and argument not raised in the Petition. See ECF No. 19.
Petitioner now contends that the President’s statements are not dispositive. See Pet’r’s Opp’n at
11-12, 24-25. Rather, Petitioner argues that the Court should conduct its own multi-factor
examination of the factual record to determine whether the “relevant conflict” remains ongoing.
See id. For the reasons explained below, Petitioner’s new argument is similarly unpersuasive
and should be rejected. Accordingly, the Court should grant Respondents’ motion to dismiss or
for judgment, and deny the petition for writ of habeas corpus.
ARGUMENT
1.

Respondents’ Motion To Dismiss or for Judgment is Procedurally Appropriate
At the outset of his opposition, Petitioner questions the procedural basis for Respondents’

response to the Petition and motion to dismiss or for judgment in this unique habeas corpus case.
See Pet’r’s Opp’n at 10-11. To the extent Petitioner is asserting that the Court must take “as
true” the legal effect Petitioner wishes his characterization of the facts to have, that is decidedly
not appropriate, even outside the habeas corpus context. See, e.g., Lee v. District of Columbia,
733 F. Supp. 2d 156, 159 (D.D.C. 2010) (on motion to dismiss in normal civil case, court “need
not accept as true inferences unsupported by facts set out in the complaint or legal conclusions
cast as factual allegations”). In any event, given the sui generis nature of these law of war
detention habeas proceedings, the Judges of this Court have consistently resolved issues in the
Guantanamo habeas cases through motions for judgment in which each party submits evidence
for the Court’s consideration, as is appropriate. Indeed, most recently, Judge Kollar-Kotelly
issued a memorandum opinion denying a similar habeas petition by another Guantanamo Bay
detainee seeking relief based on the purported end of hostilities and reached that decision on the
basis of a motion for judgment filed by Respondents. See Al-Kandari v. United States, No. 152

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CV-329 (CKK) (D.D.C. Aug. 31, 2015) (ECF No. 24) (Resp’ts’ Ex. 1), Unclassified
Memorandum Opinion at 11 (“the Court is not restricted to follow the standard for addressing
motions to dismiss and motions for judgment as a matter of law as required in a civil action
outside the habeas context”). Accordingly, there is no basis for Petitioner’s argument that this
case should be adjudicated as would a traditional civil litigation motion under the Federal Rules
of Civil Procedure, including drawing inferences in his favor as the non-moving party or
accepting all of the allegations in his habeas petition as true.
Here, Respondents have responded to the Petition and explained why, based on the
evidence submitted by the parties, judgment in favor of Respondents is warranted. See also Fed.
R. Civ. P. 81(a)(4); Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality) (the “full
protections that accompany challenges to detentions in other settings may prove unworkable and
inappropriate” in habeas proceedings contesting lawfulness of military detention); Al-Bihani v.
Obama, 590 F.3d 866, 876-77 (D.C. Cir. 2010) (noting appropriateness of accommodations
made “to reduce the burden habeas corpus proceedings will place on the military”) (citing
Boumediene v. Bush, 553 U.S. 723, 795 (2008)). Resolving this case on the basis of
Respondents’ motion and the current record is particularly appropriate because there is no factual
dispute among the parties. Petitioner does not contest Respondents’ declaration describing
recent hostilities in Afghanistan, see Resp’ts’ Ex. 13, nor does he dispute as a factual matter any
of the other evidence Respondents submitted to support the position that active hostilities remain
ongoing. Similarly, Respondents do no object to the Court’s consideration of the various
statements and media articles cited in Petitioner’s opposition memorandum. Because the Court
need only decide the legal question whether active hostilities have ceased, it can do so on the

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basis of the submissions of the parties using the familiar approach the Judges of this Court have
followed throughout the Guantanamo Bay habeas litigation.
2.

The Legal Standard that Governs Petitioner’s Claim is the Cessation of Active
Hostilities
Contrary to the arguments in Petitioner’s opposition, the resolution of this case turns on

whether active hostilities remain ongoing. See Resp’ts’ Mot. at 21-26. Article 118 of the Third
Geneva Convention, which is entitled “Release and Repatriation of Prisoners of War at the Close
of Hostilities,” states that “[p]risoners of war shall be released and repatriated without delay after
the cessation of active hostilities.” See Geneva Convention (III) Relative to the Treatment of
Prisoners of War (Third Geneva Convention), Aug. 12, 1949, 6 U.S.T. 3316, 3406, art. 118
(emphasis added). Relying on this provision in construing the detention authority provided by
the AUMF, the Supreme Court in Hamdi v. Rumsfeld explained that “[i]t is a clearly established
principle of the law of war that detention may last no longer than active hostilities.” 542 U.S. at
521 (plurality opinion) (citing Third Geneva Convention, art. 118).
The Courts of this Circuit have followed this standard in evaluating claims for release by
Guantanamo Bay detainees. The Court of Appeals applied the “active hostilities” standard in AlBihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), and concluded that “[t]he Geneva Conventions
require release and repatriation only at the ‘cessation of active hostilities.’” Id. at 874 (quoting
Third Geneva Convention, art. 118) (emphasis added). The Court of Appeals explained that “the
Conventions use the term ‘active hostilities’ instead of the terms ‘conflict’ or ‘state of war’ found
elsewhere in the document” and found that usage “significant,” concluding that “[t]he
Conventions, in short, codify what common sense tells us must be true: release is only required
when the fighting stops.” Id. Most recently, Judges Lamberth and Kollar-Kotelly applied the
active hostilities standard to a record similar to the one presented in his case and upheld the
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continued detention of two Guantanamo Bay detainees under the AUMF because active
hostilities against al-Qa’ida, Taliban, and associated forces are currently ongoing. See Al-Warafi
v. Obama, No. CV 09-2368 (RCL), 2015 WL 4600420, at *2, 7 (D.D.C. July 30, 2015) (“the
Court concludes that active hostilities continue” and “Respondents have offered convincing
evidence that U.S. involvement in the fighting in Afghanistan, against al Qaeda and Taliban
forces alike, has not stopped”); Al-Kandari, Slip Op. at 11 (“A review of the documents
submitted by Respondents supports the President’s assertion that fighting has not stopped in
Afghanistan and that active hostilities remain ongoing at this time.”).1
Petitioner attempts to downplay the significant these cases by pointing to irrelevant
distinctions that have no bearing on the question of whether active hostilities remain ongoing.
Petitioner argues that this Court should not follow Al-Kandari and Al-Warafi because the
detainees in those cases based their arguments for release exclusively on the President’s
statements, whereas Petitioner now contends that the “President’s statements are but one factor
among many” that the Court should consider in deciding whether active hostilities are ongoing.
See Pet’r’s Opp’n at 27-28. Petitioner, however, ignores the important fact that Judges Lamberth
and Kollar-Kotelly decided Al-Warafi and Al-Kandari on the basis of their review of the factual
record submitted in those cases. See Al-Warafi, 2015 WL 4600420, at *7; Al-Kandari, Slip Op.
at 19-21. Because neither case relied exclusively on the President’s statements in reaching the

1

As noted in Respondents’ motion, several other Guantanamo Bay detainees have filed motions
or petitions raising challenges regarding the purported end of active hostilities similar to the one
asserted in this case. The Al-Kandari and Al-Warafi cases are currently on appeal. See AlWarafi v. Obama, No. 15-5266 (D.C. Cir); Al-Kandari v. Obama, No. 15-5268 (D.C. Cir.).
Another new habeas petition raising the issue is also pending before Judge Cooper. See
Davliatov v. Obama, 15-CV-1959 (CRC). Briefing schedules have not been established by the
courts in the appeals or the Davliatov case. Additionally, the petitioner in Al-Razak v. Obama,
05-CV-1601 (GK), filed a motion for release in October 2015 and Respondents filed their
opposition on November 17, 2015.
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conclusion that active hostilities remain ongoing, Petitioner’s attempt to distinguish the cases on
that basis lacks merit. See Al-Kandari, Slip Op. at 9 (“the Court finds that the evidence supports
Respondents’ position”); Resp’ts’ Mot. at 30 n.13. Rather than depart from these decisions, this
Court can appropriately follow Al-Warafi and Al-Kandari and conclude that the record here more
than sufficiently establishes that active hostilities remain ongoing.
Petitioner also attempts to distinguish the Court of Appeals decision in Al-Bihani by
noting that the factual record was different in that case, as there were more U.S. troops present in
Afghanistan in 2010 than there are now. See Pet’r’s Opp’n at 26-27. While true, the fact that the
United States currently has a smaller military force in Afghanistan does not mean that active
hostilities have ceased. As explained in Respondents’ motion, there are approximately 9,800
U.S. troops deployed at 21 military bases across Afghanistan, from which a variety of training,
support, and counterterrorism operations are conducted, including air strikes, ground raids, and
support to coalition partners in active combat zones. See Resp’ts’ Mot. at 12-19.2 Notably, the
U.S. conducted approximately 50 more aerial weapon releases in Afghanistan last month
(October 2015) than in the month Al-Bihani was decided (January 2010). See United States Air
Forces Central Command 2010-2015 Airpower Statistics (Resp’ts’ Ex. 49) (listing United States
air sorties, and weapons releases in Afghanistan as of October 31, 2015), at
www.afcent.af.mil/AboutUs/AirpowerSummaries.aspx.
Indeed, recent events since the filing of Respondents’ motion in September 2014 provide
even more support that active hostilities remain ongoing. In testimony before Congress in

2

The President recently announced that the United States will maintain its “current posture of
9,800 troops in Afghanistan through most of next year, 2016” and “will maintain 5,500 troops at
a small number of bases” beyond 2016. See Statement by the President on Afghanistan (Oct. 15,
2015) (Resp’ts’ Ex. 50).

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October 2015, General John F. Campbell, Commander, U.S. Forces-Afghanistan, explained that
U.S. forces in Afghanistan “continue to impose considerable pressure on what remains of the
terrorist networks that attacked us.” See Statement of Gen. John F. Campbell, Commander U.S.
Forces-Afghanistan, Before the Senate Armed Services Committee on the Situation in
Afghanistan at 3 (Oct. 6, 2015) (Resp’ts’ Ex. 51) (“Campbell Statement”). General Campbell
stated that “the Taliban have increased the tempo of their operations in order to reassert their
prominence within the insurgent syndicate after the announced death of their spiritual leader,
Mullah Mohammed Omar[.]” Id. at 5. During the 2015 fighting season, General Campbell
explained that the Taliban has been “partially successful” in accomplishing its goals of seizing
and controlling more territory. See id. at 12. For example, on September 28, 2015, Taliban
insurgents violently overtook Kunduz, Afghanistan’s sixth-largest city. See Tim Craig, U.S.
Troops Dispatched to Kunduz to Help Afghan Forces, Washington Post, Oct. 1, 2015 (Resp’ts’
Ex. 52). Coalition and Afghan forces joined in a counteroffensive to drive the Taliban from the
city, which included multiple airstrikes and ground combat involving U.S forces. Id.3 After
about two weeks of fighting, the Taliban withdrew from Kuduz, but casualties and injuries were
significant. See Sayed Salahuddin, Taliban Announces Pullout from Kunduz, Washington Post,
Oct. 14, 2015 (Resp’ts’ Ex. 54); Rob Norland, Taliban End Takeover of Kunduz After 15 Days,
New York Times, Oct. 13, 2015 (Resp’ts’ Ex. 55) (reporting 57 killed and 630 wounded).
In addition, al-Qa’ida has worked to “rebuild its support networks and planning
capabilities with the intention of reconstituting its strike capabilities against the U.S. homeland
and Western interests.” See Campbell Statement at 11-13 (noting the Taliban’s “renewed

3

One of the U.S. airstrikes unfortunately resulted in a mistaken attack on a Doctors Without
Borders field hospital in Kunduz. See Statement by Secretary of Defense Ash Carter on the
Tragedy in Kunduz, Afghanistan (Oct. 6, 2015) (Resp’ts’ Ex. 53).
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partnership with al Qaeda”). As a result of this threat, U.S. forces continue to exert “constant
pressure” to prevent “Afghanistan from once again becoming a safe haven for al Qaeda, other
international extremist groups, and their hosts.” See id. at 3, 11. Recently, U.S. forces
conducted air and ground strikes in October 2015 that destroyed “probably the largest” al-Qa’ida
training camp discovered inside Afghanistan since the hostilities began in 2001. See Dan
Lamothe, “Probably the Largest” al-Qaeda Training Camp Ever Destroyed in Afghanistan,
Washington Post, Oct. 30, 2015 (Resp’ts’ Ex. 56). This multi-day air and ground assault
involved scores of airstrikes, U.S. Special Forces soldiers, and resulted in the death of
approximately 160 al-Qa’ida fighters. Id. (quoting General Campbell’s explanation that the
training camp’s existence was discovered after a raid in the summer of 2015 on another alQa’ida facility in Eastern Afghanistan); see Resp’ts’ Ex. 54 (quoting Brigadier General Wilson
Shoffner as stating that this was “one of the largest joint ground-assault operations we have ever
conducted in Afghanistan”).4
Petitioner does not dispute that fighting remains ongoing in Afghanistan. See Pet’r’s
Opp’n at 24. Rather, Petitioner contends that active hostilities may cease before the fighting
ends, and that here a “cessation of active hostilities” occurred when the United States ended its
combat mission at the close of 2014. See Pet’r’s Opp’n at 16-19. This argument lacks merit for
4

Hostilities are a two-way street, of course, and Petitioner does not dispute Respondents’
assertion that al-Qa’ida, Taliban, and associated forces continue to attack U.S. forces in
Afghanistan. Recent event confirm that dangerous attacks against U.S. forces remain ongoing.
See Barbara Starr, U.S. Fighter Jet Hit During Afghanistan Mission, CNN, Oct. 21, 2015
(Resp’ts’ Ex. 57) (reporting small arms attack on U.S. F-16 fighter jet); Dan Lamothe, Meet The
Impressive Guns Protecting U.S. Bases from Rocket Attacks in Afghanistan, Washington Post,
Oct. 21, 2015 (Resp’ts’ Ex. 58) (reporting that rocket attacks at the U.S. base at Bagram have
historically been launched about every other day); Dan Lamothe, In Afghanistan, a Series of
Attacks on U.S. Service Members, Washington Post, Nov. 22, 2015 (Resp’ts’ Ex. 59) (reporting
recent attacks on U.S. service members). Petitioner also does not challenge Respondents’
argument that al-Qa’ida has not been decimated and remains a threat to the United States. See
Resp’ts’ Mot. at 36-39.
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several reasons. First, the commentary, case law, and international law authorities interpreting
the meaning of “cessation of active hostilities” have concluded that it means “when the fighting
stops.” See Al-Bihani, 590 F.3d at 874; 3 Int’l Comm. of the Red Cross, Commentary: Geneva
Convention Relative to the Treatment of Prisoners of War, art. 118 at 547 (J. Pictet ed., 1960)
(release is only required when “the fighting is over”) (“Third Geneva Convention
Commentary”); Resp’ts’ Mot. at 25 n.11 (listing multiple international law treatises that define
the cessations of active hostilities as the “the factual end of the fighting”). Second, Petitioner’s
proposed standard, in which release of enemy belligerents would be legally required before the
end of the fighting, would undermine the “fundamental” purpose of law of war detention, which
is “to prevent a combatant’s return to the battlefield.” Hamdi, 542 U.S. at 519; see Third Geneva
Convention Commentary at 546-47 (“In time of war, the internment of captives is justified by a
legitimate concern – to prevent military personnel from taking up arms once more against the
captor State.”); see also Ludecke v. Watkins, 335 U.S. 160, 167 (1948) (the law does not “lag
behind common sense”). Third, contrary to Petitioner’s argument, nothing in the commentary,
history, or development of Article 118’s “active hostilities” standard suggests that it should be
understood to require release of enemy belligerents prior to the end of fighting.5 See Pet’r’s
Opp’n at 16-18.

5

The “cessation of active hostilities” standard was first adopted in the 1949 Geneva Conventions
following problems associated with delayed repatriation of prisoners of war in earlier armed
conflicts. See Third Geneva Convention Commentary, art. 118 at 540-47; Christiane Shields
Delessert, Release and Repatriation of Prisoners of War at the End of Active Hostilities: A Study
of Article 118, Paragraph 1 of the Third Geneva Convention Relative to the Treatment of
Prisoners of War 50-72 (1977) (“Delessert”). Two multilateral law of war treaties that were
predecessors to the 1949 Geneva Conventions – the Hague IV Convention Respecting the Laws
and Customs of War on Land and its Annexed Regulations of 1907 and the Geneva Convention
Relative to the Treatment of Prisoners of War of 1929 – required repatriation of prisoners of war
“after the conclusion of peace.” See Article 20 of the Regulations Annexed to the Hague
Convention (IV) on Laws and Customs of War on Land, Oct. 18, 1907 (“After the conclusion of
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Faced with no authority for his interpretation of Article 118, Petitioner attempts to
support his position by appealing to other provisions of the Geneva Conventions that have no
application to the current context. See Pet’r’s Opp’n at 17-18. Specifically, Petitioners cites to
Article 133 of the Fourth Geneva Convention, which addresses the protection of civilians during
armed conflicts of an international character, and provides that “[i]nternment shall cease as soon
as possible after the close of hostilities.” See Geneva Convention (Fourth) Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516. Petitioner
contends that minor differences in wording between this provision and Article 118 reflect an
intent to require the release of enemy belligerents before the end of fighting. See Pet’r’s Opp’n
at 17-18. The commentaries to the Geneva Conventions, however, indicate that the drafters did
not intend any material differences between the terms “cessation of active hostilities” in Article

peace, the repatriation of prisoners of war shall be carried out as quickly as possible.”); Article
75 of the Convention Between the United States of America and other Powers Relating to
Prisoners of War, July 27, 1929, 47 Stat. 2021, 2055 (1932) (“repatriation of prisoners shall be
effected with the least possible delay after the conclusion of peace”). Problems arose with
application of these provisions during World Wars I and II because there was often a substantial
gap of time between the cessation of active hostilities and the date when formal peace treaties
were entered into force, if at all. See Third Geneva Convention Commentary, art. 118 at 541-43;
Delessert at 52-64. Consequently, prisoners of war, whose detention under the law of war is to
prevent them from returning to the field of battle and taking up arms once again, remained in
detention “for no good reason,” well beyond the end of “the fighting” when “there was no danger
of any resumption of hostilities.” See Third Geneva Convention Commentary, art.118 at 541,
546-47. The 1949 Geneva Conventions sought to correct this problem by requiring release of
prisoners of war upon “cessation of active hostilities” without being contingent on a formal
peace accord or political agreement between the belligerent parties. See Third Geneva
Convention Commentary, art. 118 at 541, 543, 546-47; Delessert at 64-72; see also Yoram
Dinstein, The Release of Prisoners of War, in Studies and Essays on International Humanitarian
Law and Red Cross Principles in Honor of Jean Pictet 37-45 (1984). Respondents’ position here
is entirely consistent with the history and purpose of Article 118, because active hostilities
against al-Qa’ida, Taliban, and associated forces remain ongoing. On the other hand,
Petitioner’s position is inconsistent with the Article 118, as it would require Respondents to
release enemy belligerents well before “the fighting is over,” thereby undermining the central
purpose of law of war detention. See Third Geneva Convention Commentary, art. 118 at 546-47.

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118 and “close of hostilities” in Article 133. Indeed, the commentary to Article 133 expressly
states that the “wording of the paragraph here should be understood in the same sense” as the
“cessation of active hostilities” standard in Article 118 of the Third Geneva Convention. See 4
Int’l Comm. of Red Cross, Commentary: Geneva Convention Relative to the Protection of
Civilian Persons in Time of War 514-15 (J. Pictet gen. ed. 1958) (“Fourth Geneva Convention
Commentary”); see also id. at 270 (“The words ‘close of hostilities’ express a notion which has
already been met with several times in the Convention: they mean the actual end of the fighting
and not the official termination of a state of belligerency.”). That the drafters would have
intended the same meaning for these two “similar provision[s]” is unsurprising given that active
hostilities serve as the main reasons supporting both interment of civilians and the detention of
prisoners of war, and that Article 133 was intended to avoid the same problem that led to the
adoption of Article 118, i.e., continued detention or internment after the cessation of active
hostilities without good reason. See id. at 514-515.6
3.

Respondents’ Detention Authority Under the AUMF Continues and Did Not End at
the Conclusion of the Combat Mission in 2014
As explained above, Petitioner’s detention remains lawful under the AUMF because

active hostilities against al-Qa’ida, Taliban, and associated forces have not ceased. Petitioner,
however, erroneously relies on Hamdi for his position that Respondents’ detention authority

6

Petitioner also misreads the commentary to Article 133. Far from supporting Petitioner’s view
that release is require before the end of active hostilities, the commentary expressly contemplates
the detention of civilians even after the end of active hostilities. See Fourth Geneva Convention
Commentary at 515 (“However, this does not mean, in spite of the urgent wish thus expressed,
that internment can always be brought to an end shortly after the end of active hostilities. The
Rapporteurs of the Committee of the Diplomatic Conference which dealt with this question even
explained that it did not even mean that no one could be interned after hostilities had ended.”)

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ended at the close of 2014 when the United States declared an end to the combat mission
(Operation Enduring Freedom) in Afghanistan. See Pet’r’s Opp’n 1-2, 11-13, 16-18.
Petitioner’s attempts to distinguish the straightforward views of the plurality in Hamdi
are unavailing. Petitioner first argues that he should be released because Operation Enduring
Freedom marks the end of the “relevant conflict” or “particular conflict” in which he was
captured. See id. (quoting Hamdi, 542 U.S. at 518, 521). By arguing that the terms apply to a
particular military operation rather than active hostilities against al-Qa’ida, Taliban, and
associated forces, see Pet’r’s Opp’n at 16, Petitioner misconstrues the meaning of these terms
and attributes greater meaning to these phrases than they can bear in context. As discussed
previously, the Hamdi plurality, in addressing the question of when release is required, cited the
language from Article 118 to answer, “no longer than active hostilities.” 542 U.S. at 520. The
plurality’s later use of the phrases “particular conflict” and “relevant conflict” when discussing
detention authority in the context of ongoing hostilities does not undermine that answer; rather,
in context, those phrases simply refer to the parties involved in the hostilities, not a particular
military mission. Id. at 518 (explaining that “individuals who fought against the United States in
Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda
terrorist network,” are detainable “for the duration of the particular conflict in which they were
captured”); see also Hamdan v. Rumsfeld, 548 U.S. 557, 628-631 (2006) (discussing the
“relevant conflict” by reference to the parties to the conflict, such as the United States, the
Taliban, and al-Qa’ida). The “relevant conflict” here is the conflict against al-Qa’ida, Taliban,
and associated forces, and active hostilities against those groups continue.
Indeed, as a common sense matter, there can be no merit to the contention that Petitioner
should be released simply because the United States announced a transition of its mission in

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Afghanistan at the beginning of 2015, and correspondingly renamed the current military mission
“Freedom’s Sentinel.” To be sure, the transition of the United States’ military mission in
Afghanistan at the beginning of 2015 is a significant milestone, but it reflects just that, a
transition, and not a cessation of active hostilities. Armed conflict is unpredictable, and the
nature of hostilities can change dramatically in the course of any conflict, as evidenced by the
recent increase in hostilities in Afghanistan over the last few months. Accordingly, it should be
unsurprising that military missions undergo transition as they are adjusted to respond to current
facts and circumstances, which is precisely what occurred at the beginning of 2015 when the
United States transitioned to a support and counterterrorism mission in Afghanistan, in which
active hostilities remain ongoing. To require the release of enemy belligerents at each transition
point within an ongoing armed conflict would defy common sense and conflict with the purpose
of law of war detention, which is “to prevent captured individuals from returning to the field of
battle and taking up arms once again.” Hamdi, 542 U.S. at 518.
In fact, Petitioner’s argument is the same one as the Court of Appeals rejected in AlBihani. See 590 F.3d at 874 (rejecting detainee’s argument that “each successful campaign of a
long war” required release because, if accepted, such a rule would be “a Pyrrhic prelude to
defeat” and “would trigger an obligation to release Taliban fighters captured in earlier clashes”
and result in “constantly refresh[ing] the ranks” of enemy forces”). Like Petitioner here, the
petitioner in Al-Bihani argued that the conflict had reached a point that necessitated his release
because the conflict “has allegedly ended.” Id. (arguing that release was required when the
Taliban was removed as the governing power in Afghanistan). Petitioner here identifies a
different alleged end point – the transition of the U.S. mission in 2015 – but his argument suffers
the same flaw the Court of Appeals identified in Al-Bihani: active hostilities have not ceased.

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The Court of Appeals rejected the attempt in that case to “draw such fine distinctions” regarding
the point at which release is required under the laws of war and, instead, reaffirmed the
longstanding rule that “release is only required when the fighting stops.” Id. As in Al-Bihani,
Petitioner has merely identified a transition point in the armed conflict, not the end of active
hostilities.7
Further, in Al-Kandari, Judge Kollar-Kotelly considered and rejected the same argument
regarding the “relevant conflict” language in Hamdi that Petitioner raises here. See Al-Kandari,
Slip Op. at 16 (“The Court rejects Petitioner’s argument that the relevant conflict is Operation
Enduring Freedom.”). Agreeing with Respondents, Judge Kollar-Kotelly concluded that the
“relevant conflict at issue in the instant action is the conflict in Afghanistan involving al-Qaeda,
the Taliban, and its associated enemy forces.” Id. at 16. “The fact that there has been a
transition from Operation Enduring Freedom to Operation Freedom’s Sentinel does not
necessarily signal an end of the ‘particular conflict.’” Id. at 16-17. This Court should follow the
same approach in this case.
In reaching its conclusion that law of war detention may last until the end of active
hostilities, the Hamdi plurality cautioned that “[i]f 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. Petitioner points to this language and
contends that a decision by this Court to uphold Petitioner’s detention would mean that
“conventional understandings of longstanding principles—including the authority to detain for

7

Respondents agree with Petitioner that the “‘fighting’ Al-Bihani refers to is fighting that occurs
during the relevant conflict” and “not just any fighting taking place in Afghanistan.” See Pet’r’s
Opp’n at 26 (emphasis in original). But as explained above, fighting remains ongoing in the
relevant conflict against al-Qa’ida, Taliban, and associated forces.

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the duration of the conflict—have unraveled.” See Pet’r’s Opp’n at 28-29. But just as Hamdi
noted, “that is not the situation we face as of this date.” Hamdi, 542 U.S. at 521. Consistent
with the President’s determination as Commander-in-Chief that active hostilities remain
ongoing, approximately 9,800 U.S. service members are currently stationed in Afghanistan, and
they engage, when and where appropriate, in uses of force against al-Qa’ida, Taliban, and
associated forces, consistent with the laws of war in a context similar to that presented to the
Supreme Court in Hamdi and that presented in other, traditional military operations. See
Resp’ts’ Mot. at 10-21; Hamdi, 542 U.S. at 521. This case, thus, does not present a situation in
which Petitioner’s detention would be inconsistent with “the clearly established principle of the
law of war that detention may last no longer than active hostilities” or the rationales underlying
that principle. Hamdi, 542 U.S. at 520; see Al-Kandari, Slip Op. at 18 (rejecting the same
argument that Petitioner makes in this case and holding that “while the plurality in Hamdi did
caution that the facts of a particular conflict may unravel the Court’s understanding of the
Government’s authority to detain enemy combatants, the Court does not agree with Petitioner
that such a situation exists at this point in time”).
Petitioner also mistakenly contends that factual differences between the former combat
mission (Operation Enduring Freedom) and the current counterterrorism and support mission
(Operation Freedom’s Sentinel) reflect that active hostilities have ceased. See Pet’r’s Opp’n at
19-26. The only legal support Petitioner provides for his position is a set of jury instructions
from a military commission trial addressing an entirely separate question from the issue
presented in this case. See Pet’r’s Opp’n at 22 (citing United States v. Al Bahlul, 820 F. Supp. 2d
1141, 1190 (U.S.C.M.C.R. 2011), vacated, 792 F.3d 1 (D.C. Cir. 2015)). In Al-Bahlul, the
United States Court of Military Commission Review reviewed the 2008 convictions of a

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Guantanamo Bay detainee tried before a military commission convened under the authority of
the Military Commission Act of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat. 2600 (2006),
codified at 10 U.S.C. §§ 948a et seq.8 On appeal, the court considered, among other things, the
defendant’s jurisdictional challenge, finding that the offenses of which the defendant was
convicted described conduct that was properly punishable by military commission. See Al
Bahlul, 820 F. Supp. 2d at 1188, 1190. In reviewing the jurisdictional issue, the court considered
the statutory elements of each offense, which required “proof beyond a reasonable doubt that the
offense occurred in the context of an armed conflict,” id. at 1189, and referred for “illustrative”
purposes to the factors listed in the jury instructions regarding whether an armed conflict exited
between the United States and al-Qa’ida. Id. at 1190. But Al-Bahlul’s review of the military
commission’s jurisdiction to try the defendant and whether the evidence supported his
conviction, including whether offenses occurred “in the context of an armed conflict,” is
irrelevant to the question presented here, that is, whether active hostilities are ongoing for the
purposes of continued law of war detention under the AUMF. The court had no occasion to
consider, and certainly did not address, the active hostilities standard or the point in time when
release of enemy belligerents would be required under the law of war.9 Accordingly, this Court
should follow the extensive authority Respondents have cited to support application of the active
hostilities standard in the current context and reject Petitioner’s argument that Al-Bahlul, a case
addressing an entirely separate question, somehow controls.

8

In 2009, Congress amended the MCA, including the scope of the military commissions’
jurisdiction. See Military Commissions Act of 2009, Pub. L. 111-84, 123 Stat. 2190, 2575-76
(2009).
9

The defendant in Al-Bahlul did not challenge the existence of an armed conflict between the
United States and al-Qa’ida post-September 11, 2001, either at trial or on appeal. See Al Bahlul,
820 F. Supp. 2d at 1190.
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Even if the Court considers Al Bahlul, however, none of the factors relied upon by
Petitioner supports his position that active hostilities have ceased. Petitioner first points to the
Bilateral Security Agreement (“BSA”) that sets forth the terms of the United States’ military
presence in Afghanistan beyond 2014 and argues that U.S. forces “are now generally prohibited
from conducting combat operations in Afghanistan.” See Pet’r’s’ Opp’n at 19-23. But
Petitioner’s argument misunderstands the agreement and ignores facts on the ground. The
Bilateral Security Agreement does not prohibit combat operations, rather it provides: “Unless
otherwise mutually agreed, United States forces shall not conduct combat operations in
Afghanistan.” See Resp’ts’ Ex. 11, art. 2 (emphasis added). Such “U.S. military operations,”
where appropriate “in the common fight against terrorism,” have long been the subject of “close
cooperation and coordination” between the U.S. and Afghanistan, which the parties, in the BSA,
agreed to continue. Id. Further, the BSA explicitly authorizes a variety of military activities,
including “force protection” and “counter-terrorism activities”; memorializes the Parties’
expectation that Afghanistan’s authorization for the United States to conduct “military operations
to defeat al-Qaeda and its affiliates” will continue for the foreseeable future, even after the
conclusion of the U.S. combat missions; and expressly recognizes the continued right of U.S.
forces to act in “self-defense, consistent with international law.” See id., arts. 2-3. Far from
prohibiting hostilities, the BSA reflects the expectation that active hostilities against al-Qa’ida,
Taliban, and associated forces will continue.10 See Resp’ts’ Mot. at 9-10, 32-33; see also

10

Petitioner also cites the provision of the Bilateral Security Agreement that provides that
“United States forces shall not arrest or imprison Afghan nationals, nor maintain or operate
detention facilities in Afghanistan.” See Pet’r’s Opp’n at 21 (citing BSA art. 3, ¶ 3). But
contrary to Petitioner’s argument, the fact that the United States has transitioned detention
operations in Afghanistan to the responsibility Afghan government does not require release of
Guantanamo Bay detainees. Petitioner misconstrues a voluntary agreement with a coalition
partner regarding detention operations to be the equivalent of the absence of legal authority. As
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Statement by the President on Afghanistan (Oct. 15, 2015) (attached as Exhibit 50) (“We have a
bilateral security arrangement that ensures that our troops can operate in ways that protect them
while still achieving our mission.”). Under the framework of the BSA, the United States
continues to maintain combat capabilities in Afghanistan and regularly participates in combat
activities, where appropriate and with Afghan consent, as explained above and in Respondents’
motion. See supra at 6-8; Resp’ts’ Mot. 18-19.
Next, Petitioner points to the reduced levels of U.S. forces stationed in Afghanistan as
well as lower numbers of U.S. casualties, as compared to peak levels of U.S. involvement during
Operation Enduring Freedom. See Pet’r’s Opp’n at 23. Although the United States has reduced
the number of U.S. forces in Afghanistan as part of the transition from a combat mission to a
support and counterterrorism mission, the fact remains that these troops have not stopped
fighting. Today, approximately 9,800 U.S. service and women are stationed in Afghanistan, and
they continue to be exposed to threats as they engage in active hostilities against al-Qa’ida,
Taliban, and associated forces. See Resp’ts’ Ex. 18 (listing current troop numbers from the
United States and 40 other contributing nations); see also Resp’ts’ Mot. at 10-21; supra at 6-8.
In 2015, five service members were killed in action in Afghanistan and 63 were wounded in
action. See Department of Defense Casualty Statistics (Ex. 60).11 Contrary to Petitioner’s claim,
the baseline upon which to assess whether active hostilities have ceased is the end of the
fighting, not an assessment of the relative intensity of the violence as compared to an earlier
explained above, Respondents’ detention authority under the AUMF continues because active
hostilities have not ceased.
11

In addition to service members, U.S. contractors supporting U.S. forces have also been
targeted and killed by opposing forces. See Ahmad Shakib & Rob Nordland, Kabul Suicide
Bombing Kills 12, Including 3 Americans, N.Y. Times, Aug. 22, 2015 (Ex. 61).

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point in the conflict. Petitioner’s approach would be contrary to the very purpose of law of war
detention, as it could lead to release of enemy belligerents during comparative downturns in
fighting, such as during the months between fighting seasons, and then require recapture of those
same individuals when hostilities are relatively more intense. The law of war does not require
such a cycle of catch and release. Here, the record firmly establishes that Petitioner’s detention
remains lawful because active hostilities are currently ongoing.
Petitioner also contends that hostilities have ceased because the United States no longer
targets Taliban members solely based on their affiliation with the Taliban. See Pet’r’s Opp’n at
25-26. As a threshold matter, Petitioner’s argument is directed only to the Taliban, not al-Qa’ida
or associated forces. That distinction is important because the Court of Appeals concluded that
this Court’s factual findings regarding Petitioner’s ties to both al-Qa’ida and the Taliban support
the conclusion that Petitioner was “part of al Qaeda or Taliban forces.” Al Alwi v. Obama, 653
F.3d 11, 17 (D.C. Cir. 2011) (“Here, the facts found by the district court are alone sufficient for
us to conclude that Al Alwi was ‘part of’ al Qaeda or Taliban forces.”); see Al-Alwi v. Bush, 593
F. Supp. 2d 24 (D.D.C. 2008) (“the Government was able to establish by a preponderance of the
evidence that these guesthouses, where petitioner Al Alwi admits staying, were closely
associated with the Taliban and, in at least one instance, al Qaeda. In addition, the Government
established by a preponderance of the evidence that petitioner Al Alwi voluntarily surrendered
his passport upon arriving at a particular guesthouse closely associated with al Qaeda in
Kandahar, Afghanistan; a practice common at al Qaeda guesthouses”).12 Therefore, even
assuming the current targeting policy with respect to the Taliban is a relevant factor to consider
in deciding whether active hostilities remain ongoing, that factor would not alone determine the
12

Petitioner does not challenge or seek to re-litigate the Court’s factual findings in this case. See
Petition ¶ 21 (ECF No. 1).
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legality of Petitioner’s detention under the AUMF given his ties to al-Qa’ida and the ongoing
status-based targeting of al-Qa’ida in Afghanistan.
In any event, the fact that U.S. forces have adopted new rules of engagement for targeting
Taliban forces as part of the transition to a counterterrorism and support mission does not
support Petitioner’s argument that active hostilities have ceased. Although the United States “no
longer targets individuals solely because they are members of the Taliban,” the United States
continues to target members of the Taliban, including through the use of lethal force, when
members of the Taliban or other extremist groups directly threaten U.S. and coalition forces in
Afghanistan, or provide direct support to al Qaeda. See Resp’ts’ Ex. 18 at 12. Thus, contrary to
Petitioner’s argument, the current targeting policy contemplates that active hostilities against the
Taliban will continue. And, as explained above and in Respondents’ motion, the record in this
case establishes as a factual matter that active hostilities against Taliban forces remain ongoing.
4.

The President Has Determined That Active Hostilities Remain Ongoing and
Petitioner’s Contrary Arguments Lack Merit
Petitioner’s claim for release also fails because the President has determined that “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.” See Letter from
the President, Six Month Consolidated War Powers Resolution Report (June 11, 2015) (Resp’ts’
Ex. 2); Resp’ts’ Mot. at 26-36. Although Petitioner’s habeas petition argued for release on the
basis of the President’s statements that the combat mission in Afghanistan is over, see Petition ¶
37, Petitioner now contends that the President’s statements are merely one of “various
evidentiary elements in the record that this Court must consider holistically as it assess whether
the relevant conflict has ended.” See Pet’r’s Opp’n at 25. There is no legal support for this
position. To the contrary, the Court of Appeals in Al-Bihani, addressing a similar claim for
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release by a Guantanamo Bay detainee based on the purported end of hostilities, has squarely
held that “[t]he 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, 590 F.3d at 874; Resp’ts’ Mot. at 26-29
(citing cases dating back to the Civil War). As the Supreme Court has explained, vesting this
decision in the political branches make sense from a practical perspective, given the “inherent
difficulty of determining” when hostilities end and the absence of “clearly definable criteria for
decision” by courts, and also to ensure there is “finality in the political determination” involving
such an important question of national security. See United States v. Anderson, 76 U.S. 56, 7071 (1869); Baker v. Carr, 369 U.S. 186, 213-14 (1962).
Petitioner attempts to distinguish this extensive line of case law by arguing that the cases
cited by Respondents involved different facts. See Pet’r’s Opp’n at 14-15. But regardless of the
factual situation or the specific legal dispute at issue, the key point is that the courts in these
cases had to determine when and whether hostilities ended. See Resp’ts’ Mot. at 26-29. To
answer that question, the courts did not hold an evidentiary trial or engage in the “holistic” multifactor approach advocated by Petitioner. Rather, the courts uniformly relied on the decisions of
the political branches, including authoritative statements by the President. See id. Even if, as
Petitioner contends, there was some doubt about application of this well-established principle to
the Guantanamo Bay habeas cases following the Supreme Court’s decisions in Boumediene and
Hamdi, the Court of Appeals put that doubt to rest in Al-Bihani, when it concluded that “[i]n the
absence of a determination by the political branches that hostilities in Afghanistan have ceased,
Al-Bihani's continued detention is justified.” 590 F.3d at 875.

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Ultimately, however, the outcome of this case does not turn on whether the Court
considers the President’s statements as conclusive, entitled to great deference, or as one factor
among many. Respondents prevail under any of these approaches because not only has the
Executive yet to announce a cessation of active hostilities, but the President and other highranking Executive officials have repeatedly declared that active hostilities remain ongoing,
which is in fact the case. See Resp’ts’ Mot. at 19-21, 29-30. Petitioner cites to a variety of the
President’s statements, beginning at the end of 2014 and continuing into 2015, in which the
President stated that “our combat mission in Afghanistan is over, and American’s longest war
has come to a reasonable and honorable end.” See Pet’r’s Opp’n at 4, 9, 14; Resp’ts’ Ex. 3. But
in none of these statements has the President declared that active hostilities against al-Qa’ida,
Taliban, and associated forces have ceased or that fighting in Afghanistan has stopped. See AlKandari, Slip Op. at 13-14 (“However, notably, none of these statements nor the other
statements relied on by Petitioner discuss the end of ‘active hostilities.’ Rather, the statements
indicate that the war is ‘coming to a responsible conclusion,’ and note the end of the ‘combat
mission’ and the ‘ground war.’”).
The President’s prior statements announcing the end of the combat mission have
significant meaning, just not the inaccurate meaning Petitioner attributes to them. The
President’s statements announcing the end of the combat mission in Afghanistan reflect an
important milestone, not the least of which is the return home for thousands of service men and
women. See Statement by the President on the End of the Combat Mission in Afghanistan (Dec.
28, 2014) (Resp’ts’ Ex. 12). But Petitioner is wrong to assert that the statements announcing and
explaining the transition of the U.S. military operation in Afghanistan constitute the requisite
determination that active hostilities have ceased. Such a determination would have significant

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consequences not only for the Government’s detention authority, but also for the United States’
relationship with the Government of Afghanistan as well as the continued status and operation of
U.S. military forces in Afghanistan. There is no basis for the Court to attribute such unintended
consequences to certain of the President’s words selected by Petitioner. If the President had
concluded that active hostilities were over, the President would have issued a clear statement to
that effect to ensure U.S. military personnel, foreign officials, and the American public
understood what action had been taken. Compare Presidential Proclamation, 12 Fed. Reg. 1
(Jan. 1, 1947) (“I, Harry S. Truman, President of the United States of America, do hereby
proclaim the cessation of hostilities of World War II, effective twelve o’clock noon, December
31, 1946.”). The President, however, has not done so. The words and actions of the Executive –
from the public statements, to the President’s decision to continue deployment of U.S. forces in
Afghanistan, to the execution of the Bilateral Security Agreement – clearly reflect that active
hostilities remain ongoing.
5.

Article 75 of Additional Protocol I to the Geneva Conventions Does Not Support
Petitioner’s Claim for Release
Respondents’ motion also established that Petitioner’s alternative claim for relief under

Article 75 of Additional Protocol I to the Geneva Conventions lacked merit. See Resp’ts’ Mot.
at 39-43. As an initial matter, Respondents argued that Petitioner’s Article 75 claim is barred by
section 5 of the MCA, which provides, in relevant part, that “[n]o person may invoke the Geneva
Conventions or any protocols thereto in any habeas corpus or other civil action[.]” See Pub. L
No. 109-366, 120 Stat. 2600, 2631 (codified in statutory note following 28 U.S.C. § 2241). In
his opposition, Petitioner claims that he “does not directly invoke the Genevan Conventions or
its protocols in these habeas proceedings,” but then he proceeds to do just that, invoking Article
75 as a basis for relief. See Pet’r’s Opp’n at 29. Petitioner has plainly asserted a claim for relief
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based on Article 75, see Petition ¶¶ 38-42, and his appeal to that provision is prohibited by
section 5 of the MCA.
In addition, even though the United States has chosen out of a sense of legal obligation to
treat the principles set forth in Article 75 as applicable to any individual it detains in an
international armed conflict, Respondents argued that Article 75 would not apply as a legal
matter to individuals, such as Petitioner, who are detained in the non-international armed conflict
at issue in this case. See Resp’ts’ Mot. at 41-42. Petitioner disputes this argument and contends
that he was captured during an international armed conflict. See Pet’r’s Opp’n at 29-31. The
Court, however, need not resolve this issue of international law because, even assuming
Petitioner could invoke Article 75 on the merits against the United States in a habeas proceeding
(which Respondents do not concede), Petitioner never explains how this provision supports his
claim for release. As explained in Respondents’ motion, Article 75 does not alter the wellsettled rule that law-of-war detention may last for the duration of active hostilities. See Resp’ts’
Mot. at 42-43. Petitioner does not respond to this argument, and to the extent he bases his claim
for release on section 3 of Article 75, see Petition ¶ 41, the commentary states that provision is
“concerned with periodic review of internment decisions[;]” it says nothing about requiring
release before the cessation of active hostilities.13 See Int’l Comm. of the Red Cross,
Commentary on the Additional Protocols to the Geneva Conventions of 12August1949, at 877
(Sandoz et al. eds., 1987). Article 75(3) provides, in relevant part, that “[a]ny person arrested,
13

Respondents conduct Periodic Review Board hearings in order to determine whether continued
custody of Guantanamo Bay detainees remains necessary to protect against a continuing
significant threat to the security of the United States. See Exec. Order 13,567, 76 Fed. Reg.
13277 (Mar. 7, 2011) (establishing Periodic Review Board process). Petitioner’s Al-Alwi’s
Periodic Review Board hearing was held on September 22, 2015, and the Board determined that
continued law of war detention remains necessary, noting, among other things, “Petitioner’s
prior close ties with the Taliban and his praise for the Taliban as expressed during the hearing.”
See Periodic Review Board Unclassified Summary of Final Determination (Resp’ts’ Ex. 62).
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detained, or interned for actions related to the armed conflict . . . shall be released with the
minimum delay possible and in any event as soon as the circumstances justifying the arrest,
detention, or internment have ceased to exist.” Here, even assuming Article 75 applies in this
context, the circumstances justifying Petitioner’s detention still exist, as active hostilities against
al-Qa’ida, Taliban, and associated forces remain ongoing.14
CONCLUSION
For the reasons stated above, as well as those in Respondents’ Motion to Dismiss or for
Judgment, the Court should grant Respondents’ motion and deny the petition for writ of habeas
corpus.
Dated: November 24, 2015

Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
JOSEPH H. HUNT
Branch Director
TERRY M. HENRY
Assistant Branch Director
/s/ Andrew I. Warden
ANDREW I. WARDEN (IN Bar 23840-49)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Tel: 202.616.5084
E-mail: Andrew.Warden@usdoj.gov
Counsel for Respondents

14

Respondents’ motion also explained why Petitioner’s claim under Convention Against Torture
lacked merit. See Resp’ts’ Mot. at 44-45. Petitioner did not respond to this argument in his
opposition. Consequently, this claim should be rejected.
25