Case Document 1 Filed 11/30/16 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GULED HASSAN DURAN (ISN 10023), Detainee, United States Naval Station, Guantanamo Bay, Cuba 3 Case: 1:16?cv?02358 (G Deck) Assigned To Boasberg, James E. 1 Assign. Date: 11/30/2016 ARA CK OB AMA, Description: Habeas Corpus/2241 President of the United States The White House 1600 Avenue, NW. Washington, DC 20500; ASHTON CARTER, Secretary, United States Department of Defense 1000 Defense Pentagon Washington, DC 20301?1000; and NAVY REAR ADM. PETER J. CLARKE, Commander, Joint Task Force GTMO APO AE 09360, Respondents. PETITION FOR WRIT OF HABEAS CORPUS Petitioner Guled Hassan Duran respectfully petitions this Court for a writ of habeas corpus. The writ should be granted pursuant to 28 U.S.C. 2241 and 2243, and the Court?s equitable habeas powers, because Petitioner?s detention violates US. and international law. Mani Runny .123. I) Case Document 1 Filed 11/30/16 Page 2 of 12 THE PARTIES 1. Petitioner is a detainee at the United States Naval Station at Guantanamo Bay, Cuba. He is identi?ed at Guantanamo by Internment Serial Number (ISN) 10023. 2. Respondent Barack Obama is President of the United States, and Commander-in- Chief of the United States Armed Forces. 3. Respondent Ashton Carter is United States Secretary of Defense. 4. Respondent Peter J. Clarke is a United States Navy Rear Admiral and Commander of Joint Task Force-Guantanamo (JTF-GTMO). He oversees the detention facility at Guantanamo. 5. Respondents have possession, custody and control of Petitioner. FACTUAL BACKGROUND 6. Petitioner, a citizen of Somalia, is 43 years old. He is married with children. 7. The Senate Select Committee on Intelligence (SSCI) Study of the Central Intelligence Agency?s Detention and Interrogation Program, which was declassi?ed in part in December 2014, states that Petitioner was captured in Djibouti and rendered to CIA custody in March 2004. The SSCI report provides other details about Petitioner?s CIA detention, including a notation that he was among a group of detainees [who] had care delayed for serious medical issues? while in detention ?[d]ue to a lack of adequate medical care at CIA detention sites and the unwillingness of host governments to make hospital facilities available.?1 8. Petitioner was transferred to Guantanamo in September 2006, where he has since been held inde?nitely and without charge. 1 See id=7c85429a?ec38- 1895909. Case Document 1 Filed 11/30/16 Page 3 of 12 9. Petitioner was subsequently designated for continuing inde?nite detention by the Guantanamo Review Task Force established pursuant to Executive Order 13,492, 74 Fed. Reg. 4897, 4899 (Jan. 22, 2009). He is neither approved for transfer nor designated for prosecution in any jurisdiction or forum. 10. Additional facts are alleged in a supplement to this habeas petition, ?led concurrently herewith through the Court Security Of?ce, and incorporated herein by reference. COUNT I DETENTION VIOLATES THE AUTHORIZATION FOR USE OF MILITARY FORCE 11. The government claims authority to hold Guantanamo detainees, including Petitioner, inde?nitely pursuant to the Authorization for Use of Military Force Pub. L. No. 107-40, 115 Stat. 224, 224 (2001).2 But the AUMF permits only the use of ?necessary and appropriate force against those nations, organizations, or persons [the President] 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.? Id. The AUMF does not authorize the detention of anyone the government deems a terrorist or terrorist sympathizer; nor does it authorize unlimited, unreviewable detention. 12. Petitioner is not person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks? within the meaning of the AUMF. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 1021(b)(1), 125 Stat. 1298, 1562 (Dec. 31, 2011). 2 See Resp?ts? Mem. Regarding the th?s Detention Authority Relative to Detainees Held at Guantanamo Bay, In Re Guantanamo Bay Detainee Litigation, No. 08-mc?442 (TFH) (D.D.C. Mar. 13, 2009) (dkt. no. 1689). Case Document 1 Filed 11/30/16 Page 4 of 12 13. Petitioner is not person who was a part of or substantially supported al- Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.? Id. 1021(b)(2). In particular, and without limitation, the government claims that there are no ?associated forces? for AUMF purposes in the Horn of Africa or anywhere outside of the Afghanistan theater, except for Al Qaeda in the Arabian Peninsula, a group with which Petitioner is not alleged to be associated.3 l4. Petitioner?s detention is not authorized by the AUMF because he was not engaged in armed con?ict against the United States in Afghanistan prior to his capture. 15. Petitioner?s detention is not authorized by the AUMF because the AUMF limits the duration of his detention. In particular, and without limitation, Petitioner?s detention is arbitrary, inde?nite and perpetual, and does not serve its ostensible purpose of preventing his return to the battle?eld. 16. Petitioner?s detention is not authorized by the AUMF because there are geographical limits to the application of the AUMF, and the scope of the AUMF does not extend to the Hem of Africa, including Somalia and Djibouti. COUNT II DETENTION VIOLATES HAMDI V. RUMSFELD AND THE LAWS OF WAR 17. The AUMF does not directly authorize detention. The Supreme Court held in Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004), that the power to detain may be inferred from the right to use force under ?longstanding law-of?war principles.? Detention is non-punitive and its 3 See, e. Stephen W. Preston, The Legal Framework for the United States? Use of Military orce Since 9/11, Speech Before the American Society of International Law (Apr. 10, 2015), available at Case Document 1 Filed 11/30/16 Page 5 of 12 sole purpose is ?to prevent captured individuals from returning to the ?eld of battle and taking up arms once again.? Id. at 518; id. at 519 (although the AUMF ?does not use speci?c language of detention,? detention ?to prevent a combatant?s return to the battle?eld is a fundamental incident of waging war? and thus permitted). Detention is authorized in the ?narrow circumstances? where necessary to prevent return to the battle?eld, but may last ?no longer than active hostilities.? Id. at 520. 18. The government has long acknowledged that its AUMF detention authority is informed and limited by these law-of-war principles. See Resp?ts? Mem. Regarding the th?s Detention Authority Relative to Detainees Held at Guantanamo Bay at 1, In Re Guantanamo Bay Detainee Litigation, No. OS-mc-442 (TFH) (D.D.C. Mar. 13, 2009) (dkt. no. 1689) (?Principles derived from law-of-war rules governing international armed con?icts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed con?ict?) (citing Geneva Conventions). 19. Petitioner?s detention violates the quali?ed force authorization, the Supreme Court?s holding in Hamdi v. Rumsfeld, 542 US. 507, 521 (2004), and the laws of war because his detention is arbitrary, inde?nite and perpetual, and does not serve its ostensible purpose of preventing his return to the battle?eld. 20. Moreover, even in circumstances where detention may be ?necessary and appropriate? to prevent a combatant?s return to the battle?eld, that justi?cation ?unravels? if the practical circumstances of the con?ict, such as in Petitioner?s case, are entirely unlike those that informed the development of the laws of war. See Hamdi v. Rumsfeld, 542 US. 507, 521 (2004) (?If the practical circumstances of a given con?ict are entirely unlike those of the con?icts that informed the development of the law of war, that understanding may Case Document 1 Filed 11/30/16 Page 6 of 12 21. Whatever traditional law?of-war detention authority may have existed at the time of Petitioner?s initial capture and detention has unraveled. To the extent that an armed con?ict with the Taliban, Al Qaeda or associated forces continues, which Petitioner does not concede, the practical circumstances of that con?ict have become entirely unlike those of the con?icts that have informed the development of the laws of war. No other con?ict in American history has continued for more than ?fteen years without foreseeable end against armed groups that did not exist at the time the con?ict began, or that no longer exist, among other factors. 22. The President has also determined that US. combat operations in Afghanistan have ended,4 and any remaining con?ict with Al Qaeda or its successors or franchise groups outside of Afghanistan bears no resemblance to the particular con?ict in which Petitioner was initially captured and detained. 23. If Petitioner was ever at war, that war has long ended. Even if some armed con?ict persists somewhere in the world with Al Qaeda or its successors or franchise groups, it is not the same as the con?ict in which Petitioner was initially captured and detained. COUNT DETENTION UNTIL THE END OF HOSTILITIES WOULD VIOLATE THE GENEVA CONVENTIONS BECAUSE HE IS A CIVILIAN UNDER THE LAWS OF WAR 24.1 Petitioner is not detainable until the end of hostilities in any event because he is a civilian under the laws of war regardless of whether he is detained in connection with international or non-international armed con?ict. 4 For example, in his State of the Union Address on January 20, 2015, President Obama stated without quali?cation that ?[t]onight, for the ?rst time since 9/11, our combat mission in Afghanistan is over.? See 5. -6- Case Document 1 Filed 11/30/16 Page 7 of 12 25. Detention until the end of hostilities is a concept that applies only to prisoners of war, which in turn is a status that exists only in international armed con?ict. Petitioner is not a prisoner of war. If Petitioner is detained pursuant to an ongoing armed con?ict, which he does not concede, that con?ict is non?international in nature. 26. Properly applied, international armed con?ict recognizes only two categories of detainees: ?combatants,? who are entitled to a privilege of belligerency and may become prisoners of war upon capture, and ?civilians,? who lack combat immunity and may become intemees upon capture. Anyone who is not a combatant/prisoner of war is by de?nition a civilian/intemee, and may be held only as long as that person presents an imperative security threat. In addition, non-intemational armed con?icts do not contemplate a status of combatant/prisoner of war. Those armed con?icts involve only civilians, who must be charged criminally under domestic law or released. 27. Even if the Court applies international armed con?ict rules by analogy in the context of non-international armed con?ict, which it should not, the Court should adopt a new detention standard and interpret AUMF detention authority by analogy to international armed con?ict rules that apply to civilians, which are set forth in the Fourth Geneva Convention and authorize detention only for as long as a civilian presents an imperative security threat. See Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War arts. 2, 78, Aug. 12, 1949, 6 U.S.T. 3516. Applying this standard, Petitioner must be released because he does not present an imperative security threat to anyone. 28. Moreover, if Petitioner is not detained pursuant to any armed con?ict, the laws of war do not apply to him and he must be charged criminally under domestic law or released. Case Document 1 Filed 11/30/16 Page 8 of 12 29. Accordingly, regardless of the type of conflict, Petitioner is properly classi?ed as a civilian and may not be detained until the end of hostilities. COUNT IV DETENTION VIOLATES DUE PROCESS 30. The Due Process Clause of the Fifth Amendment to the Constitution of the United States applies to prisoners held at Guantanamo, including Petitioner. 31. The Due Process Clause entitles Petitioner to greater not lesser process than criminal defendants who challenge their detention after a full court trial. It also entitles Petitioner to greater process than current panel decisions of the DC. Circuit have held. 32. The Due Process Clause limits the duration of Petitioner?s detention. In particular, and without limitation, Petitioner?s detention violates due process because it is arbitrary, inde?nite and perpetual, and does not serve its ostensible purpose of preventing his return to the battle?eld. COUNT THE COURT HAS BROAD EQUITABLE AUTHORITY AT COMMON LAW TO FASHION APPROPRIATE RELIEF AS JUSTICE AND LAW MAY REQUIRE TO REMEDY UNLAWFUL DETENTION 33. The Court has equitable, common law habeas authority to dispose of Petitioner?s case as law and justice require based on the unique facts and circumstances of Petitioner?s case. 34. As the length of Petitioner?s non-criminal detention drags on without foreseeable end, the scope of this Court?s equitable habeas review must adapt to the changed circumstances and the corresponding, increased risk of an erroneous deprivation of his liberty. 35. The Court should exercise this authority to grant Petitioner?s habeas corpus petition and to fashion any and all additional relief, including declaratory or other interim relief, Case Document 1 Filed 11/30/16 Page 9 of 12 necessary to effectuate Petitioner?s expeditious transfer from unlawful detention. In particular, and without limitation, the Court should exercise its equitable authority to enter an order affecting the disposition of Petitioner and this case in such a way that triggers the statutory exception to the detainee transfer restrictions set forth in Section 1034 of the National Defense Authorization Act for Fiscal Year 2016, Pub. L. No. 114-92, 129 Stat. 726, 969 (Nov. 25, 2015). at a: 36. Petitioner alleges that all of the foregoing claims would apply with equal, if not greater, force if he were transferred by Respondents to the United States for continued detention. REQUEST FOR RELIEF WHEREFORE, Petitioner respectfully requests that the Court: A. Grant the Writ of Habeas Corpus and order Respondents to release him from unlawful detention; and B. Order any and all additional relief necessary to effectuate his transfer from unlawful detention. Case Document 1 Filed 11/30/16 Page 10 of 12 Dated: New York, NY November 29, 2016 ?Sub itted, J. Well 1xo,1 (Pursuant to LCVR Shayana D. Kadidal (D.D.C. Bar No. 454248) Omar A. Farah (Pursuant to CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 Tel: (212) 614-6423 Fax: (212) 614?6499 wdixon@ccriustice.org skadidal@ccriustioe.or2 ofarah@ccriustice.org Counsel for Petitioner Guled Hassan Duran -10- Case Document 1 Filed 11/30/16 Page 11 of 12 CERTIFICATE OF SERVICE I hereby certify that on November 29, 2016, I caused the foregoing habeas corpus petition, with a proposed order, to be ?led with the Court via overnight mail, and served on counsel for Respondents listed below by email. Andrew I. Warden, Esq. US. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave, NW Washington, DC 20530 Tel: (202) 616-5084 Fax: (202) 616-8470 Andrew.Warden@usdoj.gov unsel for Respondents J. We?s?oix?n -11- Case Document 1 Filed 11/30/16 Page 12 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GULED HASSAN DURAN (ISN 10023), Petitioner, v. Civil Action No. BARACK OBAMA, et al., I Respondents. [Proposed] ORDER The petition for a writ of habeas corpus is GRANTED as follows: Construing the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224, 224 (2001), as interpreted by Hamdi v. Rumsfeld, 542 US. 507 (2004), and in conjunction with 28 U.S.C. 2243, and the Court?s equitable, common-law habeas authority recognized in Boumediene v. Bush, 553 US. 723 (2008), and further in order to avoid serious constitutional issues that would otherwise be raised by the petitioner?s continuing indefinite detention, the Court concludes that based on the unique facts and circumstances of this particular case, the petitioner?s habeas corpus petition shall be and hereby is GRANTED. The respondents are ORDERED to release the petitioner from the US. Naval Station at Guantanamo Bay, Cuba. SO ORDERED, this day of 2016, at Washington, DC. United States District Judge Case 1:16-cv-02358-RB-a LI 13-44 (Rev. 7/16 DC) A Filed 11/30/16 Page 1 of 2 CIVIL COVER SHEET I. PLAINTIFFS Guled Hassan Duran COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF CUba (EXCEPT IN U.S. PLAINTIFF CASES) DEFENDANTS Barack Obama, Ashton Carter, Peter J. Clarke COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT 666 Broadway, 7th Floor New York, NY 10012 ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) Center for Constitutional Rights Case: (G Deck) Assigned To Boasberg, James E. Assign. Date 11/30/2016 (212) 614?6464 1 US, Govemment Plaintiff 2 US. Government Defendant II. BASIS OF JURISDICTION (PLACE AN IN ONE Box ONLY) 0 3 Federal Question (US Government Not a Party) 0 4 Diversity (Indicate Citizenship of Parties in item Description: Habeas Corpus/2241 CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN IN ONE Box FOR PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES PTF DFT PTF DFT Citizen of this State 0 1 01 Incorporated or Principal Place 0 4 4 of Business in This State Citizen 0f Another State 0 2 02 Incorporated and Principal Place 0 5 5 of Business in Another State Citizen or Subject of a 3 3 Foreign Country 0 0 Foreign Nation 0 6 6 IV. CASE ASSIGNMENT AND NATURE OF SUIT (Place an in one category, A-N, that best represents your Cause of Action and in a corresponding Nature of Suit) A. Antitrust 410 Antitrust B. Personal Injury/ Malpractice 310 Airplane El 315 Airplane Product Liability 320 Assault, Libel Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability l:l 350 Motor Vehicle El 355 Motor Vehicle Product Liability l: 360 Other Personal Injury 362 Medical Maipraetice l:l 365 Product Liability El 367 Health Care/Pharmaceutical Personal Injury Product Liability 368 Asbestos Product Liability C. Administrative Agency Review 151 Medicare Act 861 HIA (1395a) 862 Black Lung (923) El 863 (405(g)) 864 SSID Title XVI 865 RSI (405(g)) Other Statutes 891 Agricultural Acts El 893 Environmental Matters 890 Other StatutonI Actions (If Administrative Agency is Involved) D. Temporary Restraining Order/Preliminary Injunction Any nature of suit from any category may be selected for this categoly of case assignment. *(If Antitrust, then A governs)* i i} mmew.maMw Wm is - E. General Civil (Other) OR 0 F. Pro Se General Civil .5 1119-..mam-.. . .w Real Property 210 Land Condemnation 220 Foreclosure Bankruptcy 422 Appeal 27 USC 158 El 423 Withdrawal 28 use 157 Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 I: 230 Rent, Lease Ejectlnent 690 Other 240 Torts to Land Prisoner Petitions 245 Tort Product Liability El 535 Death Penalty [3 290 All Other Real Property El 540 Mandamus Other Other Statutes . l:l 550 Civil Rights D375 False Claims Act Personal Propel-Q 555 Prison Conditions :370 Other Fraud 560 Civil Detainee Conditions 3729(3)) I: 371 Truth in Lending of Con?nement El 400 State Reapportionment I: 380 Other Personal Property 430 Banks Banking Damage 450 Commerce/ICC I: 385 Property Damage 820 Copyrights Rates/etc. Product Liability 830 Patent El 460 Deportation 840 Trademark 462 Naturalization 't Application era ax - - plaintiff or I: 465 defendant) 871 IRS-Third Party 26 USC 7609 470 Racketeer Influenced Corrupt Organization 480 Consumer Credit :1 490 Cable/Satellite TV 850 Securities/Commodities/ Exchange 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act) ?Om Case Document 1-1 Filed 11/30/16 Page 2 of 2 0 G. Habeas Corpus/ O) H. Employment 0 I. OIA/Privacy Act 0 J. Student Loan 2255 Discrimination 530 Habeas Corpus General :3 442 Civil Rights Employment l:l 895 Freedom of Information Act I:l 152 Recovery ofDel?aulted 510 Motion/Vacate Sentence (criteria: race, gender/sex, El 399 Other 5?5"?er Actions Student Loan 463 Habeas Corpus Alien national origin, (if Privacy (excluding veterans) Detainee discrimination, disability, age, religion, retaliation) *(If pro se, select this deck)* Pro 59, SBICCI this K. L. Other Civil Rights 0 M. Contract 0 N. Three-Judge (non?employment) (non-employment) Court I3 110 Insurance 710 Fair Labor Standards Act 441 Voting (if not Voting Rights [3 120 Marine 441 Civil Rights Voting I: 720 Labor/Mgmt. Relations Act) I: 130 Miller Act (if Voting Rights Act) 740 Labor Railway Act a 443 Housing/Accommodations l: 140 Negotiable Instrument I: 751 Family and Medical 440 Other Civil Rights I: 150 Recovery of Overpayment Leave Act I: 445 Americans w/Disabilities Enforcement of 790 Other Labor Litigation Employment Judgment I: 791 Empl. Ret. Inc. Security Act I: 446 Americans w/Disabilities I: 153 Recovery of Overpayment Other of Veteran?s Bene?ts 448 Education 160 Stockholder?s Suits I: 190 Other Contracts 195 Contract Product Liability 196 Franchise V. ORIGIN 0 Originai 0 2 Removed 3 Remanded 4 Reinstated 5 Transferred 6 Multi-district 7 Appeal to 8 Multi-district Proceeding from State from Appellate or Reopened from another Litigation District Judge Litigation 1 Court Court district (specify) from Mag. Direct File Judge VI. CAUSE OF ACTION (CITE THE US. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.) 28 U.S.C. 2241, 2243. Habeas corpus petition filed by detainee at US. Naval Station, Guantanamo Bay, Cuba. VII. REQUESTED IN CHECK 1F THIS IS A CLASS DEMAND 15 Check YES only ifdemanded in complaint COMPLAINT ACTION UNDER 23 JURY DEMAND: YES: v11]. RELATED (See instruction) YES NO If yes, please complete related case form IF ANY 7 DATE: i I ?Z?i I SIGNATURE OF ATTORNEY OF RECORD ill/CV 831% I. -.. ill V/f INSTRUCTIONS FOR COMPLETING CIVIL COVER SH 58-44 Authority for Civil Cover Sheet The 8?44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local ruies of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet. I. COUNTY OF RESIDENCE OF FIRST LISTED County of residence: Use 1001 to indicate plaintiff if resident ofWashington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if piailltiffis outside the United States. CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed o_nly if diversity of citizenship was selected as the Basis of Jurisdiction under Section 11. IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case depend on the category you select that best represents the primary cause of action found in your complaint. You may select oniy gilt; category. You must also select one corresponding nature of suit found under the category of the case. VI. CAUSE OF ACTION: Cite the US. Civii Statute under which you are ?ling and write a brief statement of the primary cause. RELATED IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk?s Office. Because of the need for accurate and complete information, you Should ensure the accuracy of the information provided prior to signing the form.