No.
In the United States Supreme Court

SAIFULLAH PARACHA,
Petitioner,

v
DONALD J. TRUMP,
Respondent.

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)
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PETITIONER'S APPENDIX
To his Petition for Certiorari to the
United States Court of Appeals for the District of Columbia Circuit

GAILLARD T. HUNT
D.C. Bar No. 89375
Attorney of Record for Petitioner
10705 Tenbrook Drive
Silver Spring, Maryland 20901
(Not admitted in Maryland)
301-530-2807
gthunt@mdo.net

 APPENDIX -- TABLE OF CONTENTS

RULINGS BELOV/
June 16,2016, opinion and order of U.S. D.C. D.C. rejecting petitioner's
I
altack on the bills of attainder

July 29,2016, opinion of U.S. D.C. D.C. ruling that the bills of attainder
7
issue is separately appealable under FRCP

54(b)

JuIy 29,20L6, order that the bills of attainder issue is separately appealable
10

April 25,20L7, opinion of the D.C. Circuit affirming dismissal of
petitioner's attack on the bills of attainder

11

July 7,2017, denial of rehearing

13

JuIy 7,2017, denial of rehearing en banc

l4

STATUTORY PROVISIONS
The statutes attacked as bills ôf attainder

15

March 3,2016, Government analysis of the statutes then in question 35

Historical statutes

51

CONGRES SIONAL COMMENTS EXPRES SING PUNITIVE INTENT
Pages 8-10 from petitioner's April 30,2015, memorandum of points and
55
authorities in support of his motion for summary

judgment

:

 Pages 3-5 from petitioner's January 15,2016, supplement to petitioner's
motion for summary judgment to include the National Defense
59
Authorization Act of

2016

COMMENTS SHOWING REPUTATIONAL HARM CAUSED BY
THE BILLS OF ATTAINDER:
Pages 17-18 from petitioner's June 19,2015, reply in support of petitioner's
62
motion for summary

judgment

 Case L:O4-cv-O2O22-PLF Document

439

Filed 06/1-6116 Page L of 6

I-JNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SAIFULLAH PARACHA,
Petitioner,

v

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)

)
)
)

Civil ActionNo. 04-2022 (PLF)

)

BARACK H. OBAMA, et al.,
Respondents

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MEMORANDUM OPINION AND ORDER
Petitioner Saifullah Paracha, a Pakistani r¡ational detained at the United States

Naval Station, G¡antanamo Bay, Cuba, moves for summary judgmenl, seeking to invalidate
certain Acts of Congress, or sections thereof as bills of attainder in vielation of the Constitution.

Specifically, petitioner challenges 32 statutes that he aïgues constitutç unconstitutional
legisfative,punishmeqt because the acts label him as'"the worst of the \¡/orst" and,place

limitations on his transfer. ,Upon considpration of the parties' briefs, the relevant legal'
authorities, and the arguments lnade by counsel during the oral argument held on May 23,2016,
the Court will deny petitioner.ls motion for summary judgment for lack ofjurisdiction.l

t

The papgrs reviewed in.connection with the pending mgtion include: petitioner's
motion for summary judgment [Dkt. No. 401]; petitioner's memorandum in support of his
motion for summary judgment ('!Mot.'l) [Dkt. No. 4012]; the government's opposition to
petitioner's motion for summary judgment ("Opp.") [Dkt. No. 406]; petitioner's reply in support
of his motion,f-or srünmary ju.dgment (i'Reply") [Dkt. No. 407];petitiongr's first supplement to
his motion [Dkt. No. 413]; the government's response to petitioner's supplement [Dkt. No. 416];
petitionerls second supplement to his motion [Dkt. Ng. 418]; the government's responsg to
petitioner's supplements [Dkt. No. 421]; and petitioner's supplemental reply in support of his

motion [Dkt. No.422].
1

1

 Case 1-:04-cv-02O22-PLF Document

439 Filed'06/16/l-6 'Page

2 oÍ 6

I. STANDING
"Article III of the Constitution limits federal-court jurisdiction to

oCases'

and

'Controvçrsies."' Massachusetts v. EPA, 549 tl.S. 497,516 (2007). 'oTo enforce this limitation,
[federal courts] demand that litigants demonstrate a 'personal stake' in the suit." Camreta v
Greene, 563 U.S. 692,701(201'1) (quoting Summers v. Earth Island Institute, 555 U.S. 488, 493

(2009). "[T]he requirement that a claimant have standing is an essential and unchangine nart of
the case-or-controversy requirement of Article
F.3d

-

III."

_,2016 WL 3125204, at *5 (D.C. Cir.

Friends of Animals v. Jewell, No. l5-5070,

June 3,2016) (quoting Davis v. FEC, 554 U.S.

724,733 (2008) (internal quotation marks omittecl). This 'eirreducible constitutional minimum
of standing contains three elements.?' Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560
a

(1992)). "First, the olaimant must.have suffered an 'injury in fact'

:

of

that is,'an invasion

legally protected interest which is 'conðrete and particularized'and 'actual or imminent."' Id.

(quoting tujan v. Defenders of V/ildlife, 504 U.S. at 560). "Second, there must be a causal
connection between the claimant's injury and the subject of his complaint such that the injury is

'fairly traceable to the challenged action of the defendant."' Id. (quoting Lujan

V. Defendets

of

Wildlife, 504 U.S. at 560). "Third, it must be 'likely' that the injury will be 'redressed by a
favorable decision."' Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 561). Petitioner,
as

"[t]he party invoking federal jurisdiction," bears the burden of establishing these three

elements. Id.
While petitioner undoubtedly has standing to seek a determination as to the
lawfulness of'his detention through his habeas co{pus petitior¡ the bill-of-attainder claim,is
separate claim, as petitioner has conceded. Mot. at 4; Reply
made plain, "a

A.lrrd, as

i

the Supreme Court hás

plaintiff must demonstrate standing for each claim he seeks to press" and "for

2

2

at2.

a

 Case L:04-cv-02O22-PLF Document

439

Filed 06/1-6/L6 Page 3 of 6

each form of relief sought" because the standing for one claim in an action cannot "suffice for all

claims arising from the same nucleus of operative fact." DaimlerChrysler Corp. v. Cuno,547
U.S. 332, 352 (2006). This Court therefore,must independently assess petitioner's standing as to
the new bill-oÊattainder claim brought,in his motion for summary judgment

Petitioner asserts two tyBes of injury to support his standing for his bill-ofattainder claim: (1) thatfhe challenged congressional enactments forbid the government from

movingthe location of,his confinement f-rom Guantar.ramoto the United States or any of

its

,

territories or possessions; and (2) fhafthe'statutory provisions cause,reputation¿l injury by
labelling petitioner a,terrorist, an enemy ofthç United States and of'hum aaity,and "the worst
the worst." Mot. at 4., The.Court
as "reputational

will refer to the fqrmer

as llconfinement

of

injury" and the latter

injury." Neither injury suffices to establish p.etitioner's standing:

.The asserted confrnement injuryplainly fails all three elements of the test 1o;
establish standing. First, petitioner is detained pursuarit to the Authorization,.for Use'of Military
Force, Pub, L', 107 -40, $ 2(a), 1 15 Stat, 224 (2001), not any of the 32 statutes ,that petitioner
challenges hele,,,Thus,,the statutes petitioner challenges did not cause his continued detqntion.

,.

Nor does,.petitioner atgue that any of the challenged statutes impact the conditions of his
confinement. Instead, petitioner argues that those stalutes:prevent his transfer to a different
location, ejther by,barrir¡g or placing obstaclss to his transfer to the United States or other foreign

countries. But, because no court has issued

a

writ of

habeas,corpus, petitioner has no "legally

protecfed intgrest'? in being transferred or released and therefore cannot establish an injury in
fact,,as required by the first element

ofthe test for standing. Second, petitioner?sasserted injury;

continued confinement io Guantanamo,,laÇks a causal connection with the challenged:statutes

,

because, as noted, petitioner.is not,detained:pursuant to t-hose statutes; And, finally, this asserted

J

3

 Case 1:04.cv-02A22-PLF Dôcument 439 . Filed 06/L6/16. Page 4 of 6

injury similarly fails the redressability'element because petitioner readily concedes that a
resolution of this claim'in his favor will have no impact whatsoever upon his
detention, nor

will it actually âffect his ability to be'transferred.

will not be disturbed. His treatment

and conditions of confinement

prospects of finally getting [a] transfer or a trial

'j

Repl

will not

y

continued

,

l

at7 ("Paracha's detention

will rernain the same. His

be affected.").

The asserted reputâtional injury similarly fails because petitioner cannot establish

that any of the 32 challenged statutes have câused the asserted injury to his reputation. Although
the D.C. Circuit has held that "reputational injury that derives directly from government action

will support,Anicle III
1198,

stancling to ,challenge that aetion,'l Foretieh u

l2l4 (D.C. Cir. 2003); petitioner has preserited

'

Unt,

O

tr- ..r;

35

I F.3d

no evidence that his injury "derives

directly" from the challenged statutes. Nor has petitioner dernonstrated how his,general

'

allegations of reputational harm present a concrete injuryr as opposed to mere speculation.

Notably, petitioner will remain designated'as an enemy combatantland will continue to be
detained as such even

if the Court rules in his favbi

on this

motion. Peiitioner has presented no

evidence that the alleged harm to his reputation, includingthe allegation that "politicians

in

country after country [have] resisted Arrierican efforts to resettle" him, Mot. at 18; is caused by
the challenged statutes, rather than by'the underlying facts of his detention or

the'Executive

Branch's designation of petitioner as an enemy combat¿int. See In re Petitioners,seeking Habeas
Corpus Relief in Relation to Prior Detentions at Guantanamo Bay, 700 F. Supp. 2d

Il9,l34

(D.D.C. 2010) ("Petitioners also ignore the fact that the alleged stigma may derive from the
underlying eonduot for'which they wererpreviously detained at Guantanamo;'as opposed [to]
their prior designation as eRemy combatants,"). Thus, unlike in the situatitrn presented by
Foretich, where the D.C. Circuit held that *[a] judicial determination that Congress acted

4

4

,

 Case L:O4-cv-O2O22-PLF Document

439

Filed,06/1-611-6 Page 5 of 6

unlawfully . . . will provide a significant measure of redress for the harm to Dr. Foretich's
reputation," no such redress is possible here. Foretich v. United States, 351 F.3d at 1214.

rr.
Even

28

u.s.c. $224t@)(2)

if Petitioner could demonstrate Article III standing for this claim, it

nevertheless would be statutorily baned b¡r the Military Commissions Act of 2006,Pub. L. 109366, codified at28 U.S.C. $ 22al@)(2). Section 2241(e) provides that:

(l) No court, justice, ,or. judge shall have jurisdiction to hear'or
consider an application for a writ of habeas corpus filed by or on
behalf of an alien detained by the United States who has been
determined by the United States to have been properly detained as
an enemy combatant or is awaiting such determination.' ,

(2) Except as provided fin Section 1005(e) of the Detainee
Treatment Act of 20051, no court, justice, or judge shall have
jurisdiction to hear or consider any other action against the United
States or its agents relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an alien who is or
was detained by the United States and has been determined by the
United States to have been properly detained as an enemy combatant
or is awaiting such determination.
28 U.S.C. $ 22a1(e). Although the Supreme Court has held that subsection (1) of this statute
"operates as an unconstitutional suspension of the writ" of habeas co{pus," Boumediene v. Bush,

553U.S.723,733(2008),subsection(2)remainsineffect. SeeAamerv.Obama,74zF.3d
1023,1030 (D.C. Cir.2014) (noting that'osection224l(e)(2) . . . continues in force") (citing A1-

Zaluari v. Rodrisuez, 669 F.3d 315 , 319 (D.C. Cir.2012)). Though petitioner believes that the

"bills of attainder have frustrated the attempts of the military and the executive branch to deal
rationally under the law of war with [his] confinolnent,?' ¿¡d that a decision that those 32 statutes
are unconstitutional might increase his likelihood of being transferred or released,

Reply at2, on

this motion petitioner does not actually challenge the legality of his confinement, nor any aspect

5

5

 Case L:O4-cv-02O22-PLF Document

439

Filed 06/1-6/16 Page 6 of 6

of the place or conditions ofhis confinement.2 The claim,therefore is barred under Section
22a1@)(2) because his claims "do not sound in habeas,r' Aamer v; Obama,T'42F.3d at 1030.3

:

'

III. CONCLUSION

For the foregoing reasons, the Court concludes that it lacks jurisdiction over the

claim brought in petitioner's,motion for summary judgment. Petitioner lacks standing and, even

if standing could

be established, the claim is barred by Section

22al@)(2). It therefore is hereby

ORDERED that petitioner's motion for summary judgment [Dkt. No. 401]
is DENIED.
d^

^nñnñññ
st, r.rt(lJf1l(fi,t,

DATE: June 16,2016

lsl
PAUL L. FRIEDMAN
United States District Judge

2
claim
2016.

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The proper claim for a challenge to petitioner's confinement is his habeas corpus
which had been stayed at petitioner's owri request from May of 2011 until March of

3

Petitioner's argument that his claim is not barred because it "has nothing to do
with his 'detention, transfer, treatment, trial, or conditions of confinement,"'Reply at 7; simply
is false. Although petitioner does not directly challenge his detention, transfer, or conditions of
oonfinement, petitioner's motion quite obviously "relates" to his confinement.
6

6

 Case L:A4-cv.O2O22-PLF :Document44s FlledO7l29lL6 Page Lof 3

UNITED STATES DISTRICT COURT
FOR THE DISTzuCT OF COLUMBIA

)
)
)

SAIFULLAH PARACHA,
Petitioner,

v
BARACK H. OBAMA, et al.,
Respondents.

)
)
)
)
)
)
)
)

Civil Action,No. 04-2022 (PLF)

MEMORANDUM OPINION
On June 1612016, this Court denied petitioner?s motion for summary judgment,

which sought to invalidate certain Acts of Congress, or sections thereof, as bills of attainder in
violafion of the Constitution. Memorandum Opinion and Order (June 16,2016) [Dkt. No. 439].
Petitioner now asks the Court to enter final judgment on that distinct,claim pursuant to Rule
5a@) of the Federal Rules of

Civil

Procedure. to

allow petitioner to pursue an appeal.

"Normally, an order in a case involving multiple claims or defendants is not final
(and therefore not appealable) until the district court has 'disposed of all claims against all

parties."' United States v. All,Assets Held in Account No. XXXXXXXX, 314 F.R.D. 12,14
(D.D.C.2015) (quoting Canitol Snrinkler

Inc. v Guest

S êftls

Inc. 630 F.3d217,

221 (D.C. Cir. 201l))., "This approach avoids piecemeal appellate review and also 'protects the

district court's independence, prevents multiple, costly, and harassing appeals, and advances

efficientjudicial administration."l Cincinnati Ins. Co. v. All Plumbine.Inc.,812,F.3d 153,156
(D.C. Cir. 2016) (quoting Blue v. Dist. of Columbia Pub. Sch.,764F.3d 11, 15 (D.C. Cir.

7

 Case L:O4-cv-O2O22-PLF Document445 FiledO7I29lL6 Page 2of 3

2014)). Rule 54(b), however, permits the district court to "direct entry of a final judgment

as

one or more, but fewer than all, claims or parties" upon an express finding that 'othere is no

just

reason for

to

delay." Fsp R. CIv P. 54(b). "Absent an express determination that the District Court

has entered final judgment because there is no reason for delay, the Court of Appeals lacks

jurisdiction to review an Order that decides fewer than all the claims for relief." Detroit Int'l
Bridge Co. v. Gov't of Canada, 53 F. Supp. 3d28,31 (D.D.C. 2015) (quoting Blackman c. Dist.
of Columbia, 456 F.3d 167, 175-76 (D.C. Cir. 2006)).

"[I]n deciding whether there are no just reasons to delay

the appeal of individual

final judgments [], a district court must take into account judicial administrative interests as well
as the equities

involved" including "such factors as whether the claims under review were

separable from the others remaining to be adjudicated and whether the nature of the claims

already determined was such that no appellate court would have to decide the same issues more
than once even ifthere \ryere subsequent appeals. tt Crrrfics-\tr/rioht Cnrn r¡ lìenernl Elec. Co
446 U:S. 1,

I (1980); see also Brooks v. Dist. Hosp. Partners.,L.P., 606 F.3d 800, 806 (D.C. Cir.

2010). "The D.C. Circuit has directed the district courts to 'supply a statement of reasons' when
ruling on â motion under Rule 54(b)." Detroit Int'l Bridge Co. v. Gov't of Canada, 53 F. Supp.
3d at 31 (quoting Taylor v. F.D.I.C. ,132F.3d753,761(D.C. Cir. 1997)).

In his initial motion, petitioner argues that his llnotion for relief fromthe
congressional bills of attainder was unrelated to and independent of his petition.for habeas

corpus." Fetitioner's Motion at 5 [Dkt. No, 440]. The.government has opposed petitioner's
motion because, it argues, those conclusory'statements in petitioner's initial motion "fail to
explain why there is no just reason to delay an appeal until the conclusion of the merits of his

2

I

 Case L:Q4.cv-02O22-PLF Document

445

Filed O7l29lL6 Page 3 of 3

petition or, conversely, why the equities may instead warrant an immediate appeal."
Government's Opposition at 3 [Dkt. No. 4421.r
The Court agrees that the arguments in petitioner's motion are conclusory, but
nonetheless concludes that there is no just reason for delay

-

for much the same reason that the

Court denied petitioner's motion for lack of standing: petitioner's motion, by his own admission,
is completely separate and unrelated to his pending habeas corpus petition because resolution
the bill of attainder claim will have no impact whatsoever upon his continued detention, nor

of

will

:.::,,.

it actually affect his ability to be transferred.

See Memorandum Opinion and Order

at3-4 (June

16,2016) [Dkt. No. 439]. The bill of attainder claim also does not involve the same or similar
issues as the habeas

petition.

See

id. Petitionpr's new bill of attainder claim thus is wholly

severable from his still-pending habeas petition; The Cour-t also notes that petitioner's habeas

petition has been pending since 2004, and only recently become active again after being stayed at
petitionerls own request since.201l. The,delay until an appeal cguld be taken,from all claims

thereforecouldbeconsiderable.

,r'

Ì i

.,

:

For thçse reasons, the Court çxpressly finds that there is no just reason to delay
the entry of finaljudgmertt and an imrnediate appeal. ,Ittherefore will grarit petitioner's motion

,

for judgment pursuant to Rule 54(b) in separate order issued this,same dãy'.
SO ORDERED.

lsl
PAUL L. FRIEDMAN
United States District Judge

DATE: July29,2016

I

The govemment noted, however, that "[i]t may be that Petitioner can muster
sufficient reasons, but he has yet to do so" and that "the Government [therefore was] not in a
position to consent to Petitioner's request." Opp. at3-4.
J

$

 Case L'.O4-cv-O2O22-PLF Document

444

Ftled O7129116 Page 1 of

i_

UNITED. STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)

SAIFULLAH PARACHA,
Petitioner,

)
)
)

)
v

Civil Action No. 04-2022 (PLF),

)

BARACK H. OBAMA, et al.,
Respondents.

)
)
)
)
).

ORDER
For the reasons stated in the Court?s Memorandum Opinion issued this same day,

it is hereby

'

' ORDERED that plaintiff s motion for judgment'pursuant to Rule 54(b) of the

Federal Rules of

Civil Procedure [Dkt. No. 440] is GRANTED; and it is '

represents its FINA'L JUDGMENT regarding petitioner's

SO ORDERED.

lsl
PAUL L. FRIEDMAN
United States District Judge

10

ì

bill of attainders claim. This is a final

appealable order. See Fpo. R. App. P. a(a).

DATE: Iuly29,2016

.

 USCA Case

#1,6-5248

Document l+1,672513

Filed:

O4l25l2AL7

Page L of 2

þniteù þtættx 6.surt sf $yyewlx
FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2016

No. 16-5248

Fllpo

ON: ApRu,25,2017

serrurresPeRecun'i"ifiî;äiï.Îiffiiìilo"o'NnvnrStattoN'
v

Appeal from the United Statgs District Court
for the District of Columbia
(No. l:04.cx-02022)

Before: KaveNRucu,Circuit Judge, and GNseuRc and Ra¡oolps, Senior Circuit
Judges

JUDGMENT

This apþeal of a f,rnal judgment of the United States District Court for the District of
Columbia was presented to the court, briefed, and argued by counsel. The court has accorded the
issues full consideration and has determined they do not warrant a published opinion. See D.C.
Cm. R. 36(d). For the leasons stated below, it is

ORDERED AND ADJUDGED that the judgment of the District Court be AFFIRMED.
Appellant Saifullah Paracha, a Guantanamo detainee, appeals from the district court's
denial of his motion for summary judgment on his bills of attainder claims. Paracha made those
claims in the course of his habeas corpus proceeding. The court denied them for lack of standing
and of subjectmatterjurisdiction. Parachav. Obama,l94 F. Supp. 3d7,11 (D.D.C.2016). We
review de novo the judgment of the district court. Foretich v. United States,35l F.3d I 198, 1209
(D.C. Cir. 2003); Janko v. Gates, 741 F.3d 136, 139 (D.C. Cir. 2014).
lnBoumediene v. Bush,553 U.S. 723 (2008} the Supreme Court held unconstitutional a
provision of the Military Commissions Act (MCA) that withdrewjurisdiction from any "court,
justice, or judge . . . to hear or consider an application for a writ of habeas corpus" filed by a
detainee determined to be an enemy combatant. See Pub. L. No. 109166, $ 7(a), 120 Stat. 2600,

I

11

 USCA Case

#l-6-5248

Documenï #1"672513

Filed: 0412512017 Page 2 af 2

2635-36 (2006) (codified at 28 U.S.C . $ 22al@)(l)). Boumediene, however, left intact a parallel
provision of the MCA, 28 U.S.C. $ 22al@)(2), that withdraws jurisdiction over any action other
than habeas raised by a detained alien who "has been determined by the United States to have
been properly detained as an enemy combatant." Al-Zahrani v. Rodriguez,669 F.3d 3 15,3lg
(D.C. Cir.2012) (quoting 28 U.S.C. g 22al@)(2)). We have repearedly upheld the
constitutionality of this,provision insofar as it withdraws jurisdiction over o'any detention-related
claims, whether statutory or constitutional," that do not sound in habeas. Janko,74l F.3d at 146;
Ja',,vad v. Gates,832 F.3d 364,370-71 (D.C. Cir. 2016). Despite their appearance in the
Govemment's brief, Paracha did not acknowledge the substar¡ce of these precedents in his briefs
and, when prompted at oral argument, offered no basis fo¡ distinguishing them from his case.

Although filed as a motion for summary judgment in his pending habeas petition,
Paracha's bill of attainder claims do not "sound in habeas" in that his success on the merits of
those claims would not alter the fact, duration, or eonditions of his eonfinemen!, See Aamer v.
Obama,742F.3d1023,1032 (D.C. Cir. 2014). Furthermore, the Govemment has determined
that Paracha is an enemy combatant. Therefore $ 22al@)(2) applies and strips the courts of
jurisdiction to hear his non-habeas claims.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate until seven days after résolution of any timely
petition for rehearing or rehearing en banc. see Fpo. R. App. P. al0); D.c. cn. R.41.

PER CURIAM

FOR THE COURT:
Mark J. Langer, Clerk

-

BY:

lsl
Ken Meadows
Deputy Clqrk

2

12

 USCA Case

#1,6-5248

Filed: 071A712017 Page

Document"#1"682999

1-

of

1-

sf þypeaIø
IiniteùFoRfrtatex,fi.surt
Tne DlsTRrcr o¡ Goluusn Grncun
September Term, 2016

No. 16-5248

1

:04-cv-02022-PLF

Filed On: July 7,2017
Saifullah Paracha, Detainee, Guanatanamo
Bay Naval Station,
Appellant
Farhat Paracha, Next Friend,
Appellee
V

Donald J. Trump, President of the United
States of America, et al.,

Appellees

BEFORE:

Kavanaugh, Circuit Judge; Ginsburg and Randolph, Senior Circuit
Judges

ORDER
Upon consideration of appellant's petition for panel rehearing filed on May 9,
2017, a¡d thè resþonse thereto, it
'

': " ' ''
.

is

.a

ORDERED that the petition be denied
Per Curiam
FOR THE GOURT:
Mark J. Langer, Clerk

BY:

Isl
Ken R. Meadows
Deputy Clerk

13

 USCA Case

{tI6-5248

Filed: 0710712017 Page i" of

Document #1-683001_

þniteù fitæbø 6.surt

1-

sf þpyeæIø

Fon THe DsrRrcr or Golurttsln GlRcun

No. 16-5248

Septem be¡.,,Terrn, 20 1.6
I :04-cv-02022-PLF

Filed On: July 7,2017
Saifullah Paracha, Detainee, Guanatanamo
Bay Naval Station,
Appellant
Farhat Paracha, Next Friend,
Appellee
V.

Donald J. Trump, President of the United
States of America, et al.,

Appellees

BEFORE:

Garland','Chief Judge; Henderson, Rogers, Tatel, Brown, Griffith,
Kavanaugh, Srinivasan, Millett, Pillard, and Wilkins, Circuit Judges;
Ginsburg and Randolph, Senior Circuit Judges

ORDER
Upon consideration of appellant's petition for rehearing en banc, the response
thereto, and the absence of a request by any member of the court for a vote, it is
ORDERED that the petition be denied.

Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY

14

lsl
Ken R. Meadows
Deputy Clerk

 THE MOST RECENT BILLS OFATTAINDER:
Pue

.L.

L15-31

,

MAv 5 ,2017

,I3l SrAr,.

'

ONe HuNpRno Ft¡'repNrs Cot-lcRESS oF THE,UNITED Srerns op' Atr¿pRlce

:

Ar rup Ftnst SnsstoN ::.

:

Begun and held at the City of V/ashington on Tuesday, the third day of January, two
thousand and seventeen

AN ACT
Making appropriations for the fiscal year ending September 30,20L'7, and for other purposes
1

Short Title
This Act may be cited as the Consolidated Appropriations Act,2017

******
3. References

Except as expressly provided otherwise, any reference to this Act contained in any division

of this Act shall be treated as referring only to the provisions of that division
4. Explanatory Statement
i.l:'.

j

:.

.

i

'.

''.

j.

:ì

.

I

The explanatory statement regarding this Act, printed in the House section of

the

of

the

Congressional Record on or about ll4ay 2, 2OI'7, and submitted by the Chairman

::

Committee on Appropriations of the House, shall have the same effect with respect to the
allocation of funds and implementation of divisions A through L of this Act as if

joint explanatory statement of

a committee

it were a

of conference

*{<t*{.rß

Div. B, Title V

15

 Sec.527

None of the funds appropriated or otherwise made available in this or any other Act may
be used to transfer, release,' or assist in the transfer or release,to or within the United
States, its territories, or possessions, Khalid Sheikh'Mohammed or any other detainee

who(l)
is not a United States citizen or a member of the Armed Forces of the United States; and

:

:'

(2)
is or was held on or after June 24,2009, at the United States Naval Station, Guantanamo

Bay, Cuba, by the Department of Defense.

Sec.528
(a)

None of the funds appropriated or otherwise made available in this or any other Act may
be used to construct, acquire, or

possessions

modiff any facility in the United States, its territories, or

to house any individual described in subsection (c) for the pufoses of

detention or imprisonment in the custody or under the effective control of the Department

of Defense.
(b)
i:

The prohibition in subsection (a) shall not apply to any modification
United States Naval Station, Guantanamo Bay, Cuba.
(c)

16

of facilities

at

 An individual described in this subsection is any individual who, as of June 24,2009, is
located at United States Naval Station, Guantanamo Bay, Cuba, and

who-

(1)

is not a citizen of the United States or a member of the Armed Forces of the United
States; and

(2)

1S(A)
in the custody or under the effective control of the Department of Defense; or

(B)
otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.

***{.:l€{<

Div. C, Title

Sec.

VIII

8l0l

None of the funds appropriated or otherwise made available in this or any other Act may

be used to transfer, release, or assist in the transfer or release to or within the United
States, its tenitories, or possessions Khalid Sheikh Mohammed or any other detainee

who1)

is not a United States citizen or a member of the Armed Forces of the United States; and

(2)

17

 is or was held on or after June 24,2009, at United States Naval Station, Guantánamo
Bay, Cuba, by the Department of Defense.

Sec.8102
(a)

None of the funds appropriated or otherwise made available in this or any other Act may
be used to construct, acquire, or modifu any

possessions

facility in the United States, its territories, or

to house any individual described in subsection (c) for the purposes of

detention or imprisonment in the custody or under the effective control of the Department
n-f-,--^f l-rEreflse.
ur

(b)

The prohibition in subsection (a) shall not apply to any modification

of facilities

at

United States Naval Station, Guantiinamo Bay, Cuba.
(c)

An individual desøibed in this subsection is any individual who, as of June 24,2009, is
located at United States Naval Station, Guantánamo Bay, Cuba, and

who-

(1)

is not a citizen of the United States or a member of the Armed Forces of the United
States; and

(2)

1S(A)
in the custody or under the effective control of the Department of Defense; or

(B)

18

 otherwise under detention at United States Naval Station, Guantánamo Bay, Cuba.

Sec.8103.
None of the funds appropriated or otherwise made available in this Act may be used to
transfer any individual detained at United States Naval Station Guantanamo Bay, Cuba,
to the custody or control of the individual's country of origin, any other foreign country,

or any other foreign entity except in accordance with section 1034 of the National
Defense Authorization Act for Fiscal Year 2016 (Public Law 114-92) and section 1034

of the National Defense Authorization Act for Fiscal Year 2017

c

Law Il4-328

[Said sections are set out below.]

d.*¡l<***

Div.

X',

Title V

Sec.517
None of the funds appropriated or otherwise made available in this or any other Act may
be used to transfer, release, or assist in the:ttar-rsfer or release to or within the United
States, its territories, or possessions Khalid Sheikh Mohammed or any other detainee

who(t)
is not a United States citizen or a member of the Armed Forces of the United States; and
(2)

19

 is or was held on or after June 24,2009, at the United States Naval Station, Guantaiamo
Bay, Cuba, by the Department of Defense.

**:Ë*d.*

Div. J, Title

VII

Sec.7064

Not later than 5 days after the conclusion of an agreement with a country, including
state

a

with a compact of free association with the United States, to receive by transfer or

release individuals detained at United States Naval Station, Guantánamo Bay, Cuba, the

Secretary of State shall

notiff the Committees on Appropriations in writing of the terms

of the agreement, including whether funds appropriated by this Act or prior Acts making
appropriations for the Department of State, foreign operations, and related programs

will

be made available for assistancê for such country pursuant to such agreement.

**.***'t
Div. N, Title VI

Sec. 601

Declassification review with respect to detainees transferred from United States Naval
Station, Guantanamo Bay, Cuba

(a)In general

20

 Forçach.individual detained at,United.States Naval.Station, Guantanamo Bay, Cuþa,
who w4s transferred or relg4qed from United States Naval Station,,Guantanalno Bay,
Cuba, the Director of National Intelligence

shall-

,

,.

(1XA)

complete

a declassification review of

intelligence reports regarding past terrorist

activities of that individual prepared by the National Counterterrorism Center for the
individual's Periodic Review Board sessions, transfer, or release; or
'

i

,

ì.r

a.:

(B)

if the individual's transfer or release occurred prior to the date on which

the National

Counterterrorism Center first began to prepare such reports regarding detainees, such
other intelligence report or reports that contain the same or similar information regarding
the individual's past terrorist activities;
(2)
make available to the

public-

(A)
any intelligence reports declassified as a result of the declassification review; and

declassified as a result of the declassification review, an unclassified summary which
shall be prepared by the President of measures being taken by the country to which the

individual was transferred or released to monitor the individual and to prevent the
.':::

,:':

,.:lr

.:.:..

,ì:':...

:,

t,':'.

:;¡ ::.'

individual from carrying out future terrorist activities; and
(3)

21

 submit to the congressional intelligence côrirmittees a'report setting out the results of the
declassification review, including a description

of intelligence reports covered by

the

review that were not declassified.
(b)
Schedule

0)
Transfer or release prior to enactment

Not later than 210 days after the date of the enactment of this Act, the Director of
National Intelligence shall submit the report required by subsection (a)(3), which shall
include the results of the declassification review completed for each individual detained
. ,ì
at United States Naval Station, Guantanamo Bay, Cuba, who was transferred or released

from United States Naval Station, Guantanamo Bay, prior to the date of the enactment
fhic

À

of

at

(2)
Transfer or release after enactment

Not later than,120 days after the date an ildividual detained at United Stales Naval
Station, Guantanamo Bay, on or after the date of the enactment of this Act is transferred

or released from United States Naval Station, Guantanamo Bay, the Director shall submit
the report required by subsection (a)(3) for such individual.

(c)
Past terrorist activities

For purposes of this section, the past terrorist activities of an individual shall include all

terrorist activities conducted by the individual before the individual's transfer to the

22

 detention facility at United States Naval Station, Guantanamo. Bay, including, at a
minimum, the following:
(1)
The terrorist organization, if any, with which affiliated.

(2)
The terrorist training, if any, received.

(3)
The role in past terrorist attacks against United States interests or allies.

(4)
The direct responsibility, if any, for the death of United States citizens or members of the
Armed Forces.

(s)
Any admission of any matter speciflred in paragraphs (1) through (4).
(6)

A description of the intelligence supporting any matter specified in paragraphs (1)
through (5), including the extent to which such intelligence was corroborated, the level of
confidence held by the intelligence community, and any dissent or reassessment by an
element of the intelligence community

Pun

.L.II4-328,

130

Srer. 2000, DecnN¿eER

23

,2016:

O¡¡e HuNnRep FoURTEENTH CoNcRess oFTHE Ut{ruep Srares

opAtr¡Bntcl

Ar rue Secoxo SessroN

AN ACT

23

 To authorize appropriations for the'fiscal year 2Ol7

Sec. 1. Short

Title.

This Act may be cited as the "National Defense Authorization Act for Fiscal.Year 2017".
Sec. 1032. 130 Stat. 2390. ProhibÍtion On Use Of Funds For Transfer Or Release Of
Individuals Detained ^4.1United States Naval Station, Guantanamo Bay, Cub, To
The United States.

No amounts authorized to be appropriated or otherwise made available for the
Department of Defense may be used during the period beginning on the date of the
enactment of this Act and ending on December
the transfer or release to or

within the United

31, 2017,to transfer, release, or assist in

States, its temitories, or possessions

of

Khalid Sheikh Mohammed or any other detainee who-(1)
is not a United States citizen or a member of the Armed Forces of the United States; and

(2)
is or was held on or after January 20,2009, at United States Naval Station, Guantanamo
Rar¡
Crrhe hrl thÀ fìanqrfmpnf nf fìafance
pvJ
) vve*)

PROHIBITION ON USE OF FUNDS TO CONSTRUCT
OR MODIFY FACILITIES IN THE UNITED STATES TO HOUSE DETAINEES
TRANSFERRED FROM UNITED STATES NAVAL STATION, GUANTANAMO
BAY, CUBA.
Sec. 1033. 130 Stat. 2390.

(a) In General.-

No amounts authorized to be appropriated

or

otherwise made available to the

Department of Defense may be used during the period beginning on the date of the
enactment of this Act and ending on December 31, 2017 , to construct or

modifr any

facility in the United States, its territories, or possessions to house any individual

24

 detained at Guantanamo for the purposes of detention or imprisonment in the custody or
under the control of the Department of Defense unless authorized by Congress.

(b) Exception.The prohibition in subsection (a) shall not apply

to

any modification of facilities at

United States Naval Station, Guantanamo Bay, Cuba.
(c) Individual Detained at Guantanamo

Defined.-, ,

,

,

In this section, the term "individual detained at Guantanamo" has the meaning given that
term in section 1034(Ð(2) of the National,Defense Ai¡thorization Act

for Fiscal Year

l

2016 (Public Law Il4-92;129 Stat.97I; l0 U.S. C. 801 note).

PROHIBITION ON USE OF FUNDS FOR TRANSFER
OR RELEASE TO CERTAIN COUNTRIES OF INDIVIDUALS DETAINED AT
UNITED STATES NAVAL STATION, GUANTANAMO BAYO CUBA'
Sec. 1034. 130 Stat.2390.

No amounts authorized to be appropriated or otherwise made available for the
Department of Defense may.
' .:

''

þe

,

used during the,period beginning
r):

.,:'

on the date of tþe
.

-.

1

" to transfer, release, or assist in
Act and ending on December 31, 2017,
enactment of
. ¡i this
'
..

..';

'1.' ,

'..

'

:'

l'

the transfer 'ór release of any individual detained in the'custody or under the control

of

the Department of Defense at United States,Naval Station, Guantanamo Bay: Cuba, to
the custody or control of any country, or any entity

within

such country, as follows:

(1)

Libya.
(2)
Somalia.
(3)

25

 Syria.
(4)
Yemen.

PREVIOUS IDENTICAL OR NEARLY IDENTICAL PROVISIONS
PETITIONER IS ALSO CHALLENGING
THE TWO STATUTES RESTRICTING TRANSFERS,
REFERRED TO ABOVE
AND CONTINUED IN EFFECT
Pub. L. 174-328,130 Stat. 2000, National Defense Authorization Act for
Fiscal Year 2017, Section 1034,130 Stat. 2190, is set out above

Pub. L. 114-92,129 Stat.726, National Defense AuthorizationAct for Fiscal
\¡^^a^1 t.
T ear zuit:
969-}TLREENACTMENT AND MODIFICATION OF
CERTAIN PRIOR REQUIREMENTS F'OR CERTIFICATIONS RELATING TO
TRANSFER OF DETAiNEES AT UNITED STATES NAVAL STATION,
GUANTANAMO BAY, CUBA, TO FOREIGN COUNTRIES AND OTHER
F'OREIGN ENTITIES
Sec. 1034, 129 Stat.

(a) Cenrm'rcATroN Reeumsn PnroR To TRANSFER.-

(1) Itt cENERAL.-Except as provided in paragraph (2), the Secretary of Defense
may not use any amounts authorized to be appropriated or otherwise available to
the Department of Defense to transfer any individual detained at Guantanamo to
the custody or control of the individual's country of origin, any other foreign

country, or any other foreign entity unless the Secretary submits to the appropriate
committees of Congress the certification described in subsection (b) not later than

26

 30 days before the transfer of the individual.

(2) ExcnruoN. . Paragraph (1) shall not apply to any action tAken by the
Secretary to transfer any individual detained at Guantanamo to effectuate an order

affecting the disposition of the individual that is issued by a,court or competgnt
tribunal of the United States having lawful jurisdiction (which the Secretary shall

notify the appropriate c.ommittees of Congress of promptly,after issuancg),
(b) CenrmlcATIoN.-A certification described in this subsection is a written
certification made by,the, Sec¡etpry that(1) the transfer concerned.is in the national security interests of the ,United States;

(2) the government of the foreign country or the recognized leadership of the

foreign'entity to which the individual detained at Guantanamo concerned,is to be
transf.erred

:

:1,

l

l

(A) is not a designated state spensor of terrorism or"a degignated foreign terrorist
organization;

(B) maintains control over each detention facility in which the iqdividual is to be
detained,if the individual is to,be housed in a detention facility;

(C) has taken or ag,reed to take appropriate steps,to substantially mitigate any risk
the,individual,could attempt to,¡egngage.in terrorist activity or otherwise threaten
the United States or its allies or interests; and

(D) has agreed to qhare with the United States any information that:is,related to the
individual;(3):if the,country to which the individual is to be transferred is a
country to which the United States transferred an individual who was.detained at,

27

 United States Naval Station, Guantanamo Bay, Cuba, at any time after September

ll,200l,and

Sr¡ch

transfêrred,individual subsequently engaged in any terrorist'

activity, the Secretary

has:

:'

(A) considered such circumstances; and
(B) determined that the actions to be taken as described in paragraph (2)(C) will
substantially'mitigate the,risk of recidivism with rêgard to the individual to be
transferred; and(4) includes an intelligence assessment, in classified or
unclassified form, of the capacity, willingness, and past practices (if applicable) of
the foreign country or foreign entity concerned in relation to the certification
the Sêcretary under this

subsection.

;

of

ì

(c) CoonoINATIoN Wrru PRoHrsrrroN oN TReNsreR To CERTATN CoUNTRTES.=

While the prohibition in section 1033 is in effect, no certification may be made
under subsection (b) in connection with-the transfer of an individual detained at
Guantanamo to a country specified in such section.

(d) Rncono or
Guantanamo

CooppnerloN.'In

assessing the risk that an individual detained at

will engage in terrorist activity or other actions that could affect the

national security'of the United States

if

released for the'purpose of making a

certification'under subsection (b), the Secretary may give favorable consideration
to any such

individual-

(1) who has substantially cooperated with United States intelligence and law
enforcement authorities, pursuant to a'pre-trial agrêement, while in the custody of
or.under the effectiVe control,of the Department of Defehse;

28

and

i

,

'

 (2) for whom agreements and effective mechanisms are in place, to the extent
relevant and necessary, to provide for.continued cooperation with United States

intelli gence and law enforcement authorities.
(e) Reeonr.-Whenever the Secretary makes a certification under subsection (b)

with respect to an individual detained at Guantanamo, the Secretary shall submit
to the appropriate commit- tees of Congress, together with such certification, a
report that shall include, at a minimum, the following:

(1) A detailed,statement of the basis for the transfer of the individual
(2) An explanation why the transfer of the individual is in the national security
interests of the United States.

(3) A description

individual

o-f

actions taken to mitigate the risks of reengagement by

as described.'in subsection

the

r

(bX2XC), including any actions taken'to

address faqtors relevant to an applicable prior case of reengagement described in

sub- section (bX3)
(4) A copy of any Periodic Review Board findings relating to the individual.

(5) A copy of the final recommendation by the Guantanamo Detainee Review
Task Force established pursuant to Executive Order 13492 relating to the

individual and, if applicable,.updated information related to any change to such
recommendation.

6) An assessment whether, as of the date of the cçrtification, the country to which
the individual is to bp transferred is facing a threat that could substantially affect

its ability to exercise control over the individual.

29

 (7) A classified summary

of-(A)

the individual's record of cooperation,

if any,

while in the custody of or under the effective control of the Department of,
Defense; and

(B)'any agreements and mechanisms in place to provide for continuing
cooperation.

(f) DenImTIoNS.-In this section:(1) The term "appropriate committees of
Congress" means-

(A) the Committee on Armed Services, the Committee on Foreign Relations, the
Committee on Appropriations, and the Select Committee on Intelligence of the
Senate; and

(B) the Committee on Armed Services, the Committee on Foreign Affairs, the
Committee on Appropriations, and the Permahent Select Committee on

Intelligence of the House of Representatives.(2) The term "individual detained at
Guantanamo" means any individual located at United States Naval Station,
Guantanamo Bay, Cuba, as of October 1, 20A9,

who-

(A) is not a'citizen of the United States or a member of the Armed Forces of the
United States; and

(B)

is-(i) in the custody or under the confol of the:Department

of Defense; or(ii)

otherwise under detention at United States Naval Station, Guantanamo Bay,
Cuba:(3) The term "foreign terrorist organization" means any organization so
designated by the Secretary of State under section 2I9 of the Immigration and

Nationality Acr (8

30

u.s.c. I189).

 (4) The term "state sponsor of terrorism" has the meaning given that term in
section 301(13) of the Comprehensive Iran Sanctions, Accountability, and
Divestment Act of 2010 (22 U.S.C. 8541(13)).

(g) RerEeL oF SUrERSEDED ReQuInsuENTS AND LIMITATIoNS.Section 1035 of the National Defense Authorization Act for Fiscal Year 2014
(Public Law I 13-66;127 Stat.851; 10 U.S.C. 801 note) is repealed.

31

 SUMMARY OF PRIOR ENACTMENTS CHALLENGED
Pub.

L. lI4-254,130 Stat. 1005, December 10,2016, Division A,

Section

101, 130 Stat. 1006

Pub.

L. ll4-223,130 Stat. 857, September 29,2016, Continuing

Aoorooriations
-' Act- - -t 2017- l)ivision A- Section 51?. 1?0 Sfât
¡ ¡
I
-

Pub.

L. ll4-113,129 ïtat.2242, December

gO1

18, 2015, "Consolidated

Appropriations Acf,2016," Division B, Title V, Sections 527 and 528,129
Stat.2329; Division C, Title

VIII,

Sections 8103, 8104 and 8105, 129 Stat.

2376; Division F, Title V, Section 532,129 Stat. 2517; Division J, Title IV,
Section 4lZ;Division K, Title

VII, Sectian7064; Division M, Title VI,

Sections 601,602, and 603, 129 ïtat.2928.

Pub.

L. Il4-92,129 Stat.726, November 25,2015 "National Defense

Authorization Act for Fiscal Year 2016," Subtitle D, Sections 1031,7032,
L034,1037,1038, 1039, and 1040,129 Stat.968.

Pub.

32

L. ll4-4,129

SraL 39, March 4,2015,

"An Act Making Appropriations

 for the Department of Homeland Security for,the Fiscal Year Ending
September 30, 2015," Section 533,I29 Stat. 67.

Pub.

L. ll3-29l,128

Stat. 3292, December

12,2014,"Carllevin

and

Howard P. oBuck' McKeon National Defense Authorization Act for Fiscal
Year 2015," Sections 1032,1033, 128 Stat. 3491-3492.

Pub.

L. ll3-235,128

Stat. 2130, December 16,2014, "Consolidated and

Further Continuing Appropriations Act,2015," Division B, Title V, Sections
528 and S29;Division C, Title

VIII, Sections 8112,8113, and 8114,128

Stat. 2280; Division I, Title V, Section 512; Division J, Title

VII, Section

7082.

Pub.

L. tI3-66,127 Stat.673,December 26,2013, "National Defense

Authorization Act for Fiscal Year 2014," Sections 1033, 1034, and 1035,
127 Stat.851.

33

 NOTE ON THE DATES IN.THE VARIOUS.DEFINITIONS OF A
PRISONER HELD AT GUANTANAMO
Some sections of the laws set varying dates in the definition of a prisoner

held at Guantanamo. E.g.: NDAA 2016, Section 1031, restricts the transfer

of "any other detainee who

is or was held on or after January 20,

2009, at United States Naval Station, Guantanamo Bay, Cuba, by the

Department of Defense," while Subsection 103a(fl(2) defines "individual
detained at Guantanamo" as'oany individual located at United States Naval
Station, Guantanamo Bay, Cuba, as of October

1,2009,'who is not a U.S

citizen and is held in detention there. But Section 533 of the Homeland
Security Appropriations Act 2015. Pub.

L. ll4-4, applies its restrictions to

anyone held "on or after June 24,2009." Likewise several sections of the

"Consolidated and Continuing Appropriations Act of 2015," Pub.
235, and of the "Consolidated Appropriations Act,2016," Pub.

L.

113-

L. 114-ll3

These inconsistencies are of no importance, as there appear to be no
prisoners who were sent to Guantanamo between the earlier dates and the

later

34

 Case L:04-cv-02O22-PLF Document42L-L Filed 03/03/1-6 Page 1of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
SAIFULLAH PARACHA,

)
)

Petitioner

)
)
v.
)
)
BARACK H. OBAMA, et al.,
)
)
Respondents. )
)

Civil Action No. 04,-2022 (PLF)

RESPONDENTS'REPONSE TO SECOND SUPPLEMENT TO
PETITIONER'S MOTION FOR SUMMARY JUDGMENT
TO INCLUDE THE 2016 AUTHORIZATIONS AND APPROPRIATIONS ACTS

EXHIBIT

1

PROVISIONS BARRING THE TRANSFER OF
GUANTANAMO DETAINEES INTO THE UNITED STATES

35

 3
6

'(1) is not a Uriited States citizen or a member of the
Armed Forces
of the United Sta.tes; and
(2) is or was held on or after Jlurire 24,2009, at the United States
Naval Station, Guantanamo Bay,[*] Cuba, by the Department of
Defense.

(1) is not a United States citizen or a member of the Armed
Forces of the United States; and

(2) is or was held on or after June 24,2009,at the United States
Naval Station, Guantanarno Bay, Cuba, by the Department of
Defense.

1

who-

who-

* In section 8103, the pllrrase in subsection (2) "at the United
States Naval Statiol, Guantanamo Bay, Cuba, . . .." is "at United
))
States Naval Station Guantanamo Bay, Cuba,

None of the funds appropriated or otherwise made available in this
,or an/ other Act mây be used to transfer, r,elease, or assist in the
transfer or release to or within the United States, its territories, or
possessions Khalid Sheikh Mohammed or any other detainee

None of the funds appropriated or otherwise made available in
this or any other Act may be used to transfer, release, or assist in
the transfer or release to or within the United States, its territories,
or possessions Khalid Sheikh Mohammed or any other detainee

PROVISIONS BARRING THE TRANSFER OF GUANT ANAMO DE T
INTO THE
STATES
Provisions from Petitioner's
Correspondflng Provisions from Petitioner,s
Motion for
Judgment
Second
to Motion for
2015 DHS Approps. Act, Pub. L. I I4-4, g 533
2016 Consol. Approps. Act, Pub. L. No. I I4-I13
2015 Consol. Approps. Act, Pub. L. I 13-235
- Div B, Title V, S 527
- Div. B,Title V,S 528;
Div . C, Tit-le VIII, $ 8103
-Div. C., Title VIII, S 8I 12
- Div. F,Title V, S 532

case r:04-cv-o2022-PLF Document 421,-i, Filed 03/03/i-6 page 2 of 3

 ,7

2016 Consol. Approps. Acr Pub. L. I 14- I I 3,
Div. M,Title.VI, Si60I

xExtended through December 3lr20LS by the 2015 NDAA, Pub.
L.LI3-29r, $ 1033.

2

(2) is or was held ôn or after January 20,2OO9,at United States
Naval Station, Guantanamo Bay, Cuba, by the Department of
Defense.

(2) is or was held on or after January 20,2009,at United States
Naval Station, Guantanamo Bay, Cuba, by the Department of
Defense.

Moharnmed..."

This provision is identical to section l03l above and to section
1034 to the left,,except in the first paragraph:
o the phrase "made available for the Department of Defense"
has been changed to " made available to an element of the
intelligence community"; and"
o the phrase "or release to or within the United States, its
territories, or possessions of Khalid Sheik Mohammed . . ."
o'or
has been changed to
release, to or within the United
States,its territories, or possessions, Khalid Sheik

is not a United States citizen or a member of the Armed Forces
of the United Stàtes; and

,

(l)

who-

(1) is not a United States cittzen or a member of the Armed
Forces of the United States; and

detainee

No amounts authorized to be appropriated or otherwise made
available for the Department of Defense may be used during the
period beginning on the date of the enactment of this Act and
ending on December 3lr20l6rto transfer, release, or assist in
the transfer or rèlease to or within the United States, its
territories, or possessions of Khalid Sheikh Mohammed or any
other detainee who-

No amounts authorized to be appropriated or otherwise made
available to the Department of Defense may be used during the
period beginning on the date of the enactment of this Act and
ending on December 31r 20l4rÍ*l to transfer, release, or assist in .
the transfer or release to or within the United States, its territories,
or possessions of Khalid Sheikh Mohammed or any other

Filed 03/03/L6 Page 3 of 3

Corresponding Provisions from Petitioner's
Second Supplement to Motion for Summar-y Judgment
2016 NDAA, Pub. L. I 14-92, S 1031.

42L-L

Provisions from Petitioners
Motion for Summary Judgment
2014 NDAA, Pub. L. I 13-66, S 1034

Case L:O4-cv-O2O22-PLF Document

 Case L:O4-cv-02O22-PLF Document

42L-2

Filed 03/03/L6 Page L oÍ 4

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
SAIFULLAH PARACHA,
Petitioner,
v.

BARACK H. OBAMA, et al.,
Respondents

)
)
)
)
)
)
)
)
)
)

Civil Action No. 04'2O22 (PLF)

R'ESPONDENTS,T REPONSE TO SECOND'SUPPLEMENT TO

PETITIONER'S MOTION FOR SUMMARY JUDGMENT
TO INCLUDE THE 2016 AUTHORIZATIONS AND APPROPRIATIONS ACTS

EXHIBIT 2
PROVISIONS RE PREPARING FACILITIES
\ryITHIN THE UNITED STATES FOR GUANTANAMO DETAINEES

38

 3

I

42L-2
Filed 03/03/L6 Page 2 of 4

'

:

(2) is-(A) in the custody or under the effective control of
the Department of Defense; or (B) otherwise under
detention at United States Naval Station, Guantanamo
Bay, Cuba

I

(1) is n9t a citizen of the United States or a member of the
Armedr' Ftlfces of the United States; and

I

;

(c) An individua-l described in this subsection is any individual
who, as of Junê 24,2009,is located at United States Naval
Station, Guantanamo Bay, Cuba, and who-

(c) An individual described in this subsection is any individual
ùho, as of'Jufe 24,20ú,is located at United States Naval
' i
Station, Guantanamo Bay, Cuba, and who '

''. ':.'
(2) is:(A) in the custody or under the effective.control of
the Dæp4rtment of Defense; or (B) otherwise under
detention at United States Naval Station, Guantanamo
Bay, Cuba.

l'ì-

(1) il 4ot a citizen of the United States or a member of the
Armed Forces of the United States; and

.

(b) The prohibition in subsection (a) shall not apply to any
modification
.. : ,:of facilities at-United States Naval Station,
Guantanamo Bay, Cuba.

(b) The prohibition in subsection (a) shall not apply to any
modification of facilities at United States Naval Station,
Guantanamo Bay, Cuba.
.

(a) None of the funds appropriated or otherwise made available in
this or any other Act may be used to construct, acquire, or modify
any facility in the United States, its territories, or possessions to
house any.individual described in subsection (c) for the purposes
of detention or imprisonment in the custody or under the effective
control of the Department of Defense.

(a) None of the funds appropriated or otherwise made available in
this or any other Act may be used to construct, acquire, or modify
any facility in the United States, its territories, or possessions to
house any individual described in subsection (c) for the purposes
of detention or'imprisonment in the custody or under_the effective
control of the Depafment of Dèfense. '

PROVISIONS RE PREPARING FACILITIES \ryITHIN THE UNITED STATES FOR GUANTANAMO DETAINEES
Provisions from Petitioners
Corresponding Provisions from Petitioner's
Motion for Summary Judgment
Second Supplement to Motion for Summary Judement
2015 Consol. Approps. Act, Pub. L. I 13-235,
2016 Consol. Approps. Act, Pub. L. I I4-I13,
- Div.B,TitleV, S 529
- Dív. B, Title V, S 528
- Div. C, Title VIII, S 8113
- Div. C,Title VIII, S 8104

Case L:O4-cv-O2O22-PLF Document

 4
0

''l

i'

'l
i

i

(2) is-(A) in the custody or under the effective control of
the Department of Defense; or (B),otherwise under
detention at United States Naval Station, Guantanamo
Bay, Cuba.

(2) is-(A) in the custody or under the effective control of
the Department of Defense; or (B) otherwise under
detention at Ùnited'states Naval Station, Guantanamo

Bay,Cuba.''

(1) ig nol a citizen of the United States or a member of the
Armed'Forces of the United States;and

(1) is not a citizen of the United States or a member of the
Aimed Forces of the United States; and

2

(c) An individual descnibed in this subsection is any individual
who, as of June '.24,2æg,is located at United States Nayal,
Station, Guantanamo Þay, Cuba, and who-

(c) An individual described ir¡ this subsection is any individual
who, as of June 24,2æ9,is located at United States Naval
Station, Guantanamo Bay, Cuba, and who-

'

(b) The prohibition in subsection (a) shall not apply to any
modification of facilities at United States N4yal Station,
Guantanamo Bay, Cuba.

(b) The prohibition in subsection (a) shall not apply to any
modification of facilities at United States Naval Station,
Guantanamo Bay, Cuba.

ì'

(a) IN GENERAL.-None of the funds appropriated or otherwise
made available to the Department of Defense in this Act may be
used to construct, renovate, or expand any facility in the United
States, its territories, or possessions to house any individual
detained at United States Naval Station, Guantanamo Bay, Cuba,
for the purposes of detention or imprisonment in the custody or
under the control of the Department of Defense.

(a) IN GnNnnel.-None of the funds appropriated or otherwise
made available to the Department of Defense in this Act may be
used to construct, renovate, or expand any facility in the United
States, its territories, or possessions to house any individual
detained at United States Naval Station, Guantanamo Bay, Cuba,
for the pùrposes of detention or imprisonment in the custody or
under the control of the Department of Defense.

Filed 03/03/16 Page 3 of 4

Corresponding Provisions from Petitioner's
Second Supplemeurt to Motion for Summarv Judement
2016 Consol. Approps .Act, Pub. L. I l4-l13,
Div. J, Title IV, # 412.

42L-2

Provisions from Petitioners
Motion for Summary Judqment
2015 Consol. Approps. Act, Pub. L. I 13-235,
Div.I,Title V, S 512.

Case t:O4-cv-O2A22-PLF Docurnent

 41

2016 Consol. Approps. Act, Pub. L. I I4-I13,
Div. M.,Title VI, S 602.

*Extended through December 3I,2015 by the 2015 NDAA, Pub.
L. tt3-291, $ 1032.

3

(c) INorvnuAL DETATNED AT GuevreNeMo DEFINED.-In this
section; the term 'lndividual detained at Guantanamo" has the
riieaning given that term in section lO34(Ð(2).

(c) INDIVIDUAL DETAINED AT GuexrannMo DEFTNEo.-In this
section, the term "individual detained at Guantanamo" has the
meaning given that term in section 1035(e)(2).

This provision is identical to section 1032 above and section 1033
to the left except that:
o in the first paragraph, the phrase "made available for to
[for] the Department of Defense" has been changed to "made
available to an element of the intelligence community"
o the definition in subsection (c) sets out the definition from
section 1034(Ð(2) of the 2016 NDAA, rather than merely
referrins to it.

(b) ExcerrloN. The prohibition in subsection (a) shall not
apply to any rnodification of facilities at United States Naval
Station, Guanøhamo Bay, Cuba.

(b) ExcEPTIoN.-The prohibition in subsection (a) shall not
apply to any modification of facilities at United States Naval
Station, Guantanamo Bay, Cuba.

.

(a) IN GsNenal.-No amounts authorized to be appropriated or
otherwise made available for the Department of Defense may be
used during the period beginning on the date of the enactment of
this Act andènding on December 31, 20L6rto construct or
modify any facility in the United States, its territories, or
possessions to house any individual detained at Guantanamo for
the purposes:of detention or imprisonment in the custody or under
the control of the Department of Defense unless authorized by
Congress.

(a) IN GEtr¡sRAI-.-No amounts authorized to be appropriated or
otherwise made available to the Department of Defense may be
used during the period beginning on the date of the enactment of
this Act and ending on December 31r 20t4r *l to construct or
modify any facility in the United States, its territories, or
possessions to house any individual detained at Guantanamo for
the purposes of detention or imprisonment in the custody or under
the control of the Department of Defense unless authorized by
Congress.

Filed 03/03/L6 Page 4 of 4

Corresponding ProvisÍons from Petitioner's
Second Supplement to Motion for Summary Judement
2016 NDAA, Pub. L. I 14-92, S 1032

42L-2

Provisions from Petitioners
Motion for Summarv Judsment
2014 NDAA, Pub. L. No I 13-66, S 1033

Case 1":04-cv-02022-PLF Document

 Case L:O4-cv-02O22-PLF Document

42L-3

Filed 03/03/16 Page

1"

of

T

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
SAIFULLAH PARACHA,
Petitioner,

BARACK H. OBAMA, et al.,
Respondents

)
)
)
)
)
)
)
)
)

Civil Action No. M:2022 (PLF)

'

RESPONDENTS' REPONSE TO.SECOND SUPPLEMENT TO
FETITiONER'S MOTION FOR SUMMARY JUDGMENT
TO INCLUDE THE 2016 AUTHORIZATIONS AND APPROPRIATIONS ACTS

EXHIBIT 3
PROVISIONS RELATED TO
REPORTING REQUIREMENTS TO TRANSFER A DETAINEE

42

 4
3

AuruoRrry ro

TRANSFER UNDER CERTATN

if-

States.

(2) the transfer is in the national security interest

o_f

the United

(1) actions that have been or are planned to be taken will
substantially mitigate the risk of such individual engaging or
reengaging in any terrorist or other hostile activity that threatens
the United States or United States persons or inteiests;
.. :.. and

(b) Ds-renrrrrNATroN Rseurnpo Pzuon ro TRANSFER. Except
as provided in subsection (a), the Secretary of Defense may
transfer an individual detained at Guantanamo to the custody or
control of the individual's country origin [sic], or any other
foreign country, only if the Secretary ãetermines thai-

(2) such transfer or release outside the United States is to
effectuate an order affecting disposition of the individual by a
court orrcompeten[trib,unafof the United Siates having
jurisdiction.

(1)'the Secretary determines, following a review conducted in
accordance with the requirements of section 1023 of the National
Defense Authorization Act for Fiscal Y ear 2Ol2 (10 U.S.C. 801
note) and Executive Order No. 13567, that the inàividual is no
longer a'threat to the national security of the United States; or

CIRcuMSTANCES.-The Secretary of Defense is authorized to
ffansfer or release any individual âetained at Guantanamo to the
individual's country of origin, or any other foreign country,

(a)

1

transferred-

(2) the government of the foreign country or
the recognized leadership of the foreign entity to which the
individual detained at Guantanamo concerned is to be

(1) the transfer concerned is in the natíonal security interests of
the United States;

(b) CERTIFICATIoN.-A certification described in this subsection
is a written certification made by the Secretary that-

(2) EXCEPIIoN.-Paragraph (1) shall not àpply to any action
taken by'the Secretary to transfer any individual detained at
Guantanamo to effectuate an order affecting the disposition of the
individual that is issued by a court or competent tribunal of the
United Stales'having lawiul jurisdiction (which the Secretary
shall notify the appropriate committees of Congress of promptly
after issuance).

(a) CERTTFICATToN Reeurnpn PnroRTo TRANSFER.(1) IN GeNBneL.-Except as provided in paragraph (2), the
Secretary of Defense may not use any amounts authorized to be
appropriated or otherwise available to the Department of Defense
to trairsfer anyindividual detained at Guantanamo to the custody
or control of the individual's country of origin, any other foreign
çountry, or any other foreign entity unless the Secietary submits
to the appropriate committees of Congress the certification
described in subsection (b) not later than 30 days before the
transfer of the individual.

PROVISIONS RELA TED TO REPORTING REQUIREMENTS TO TRANSFER A DETAINEE
Provisions from Petitioners
Corresponding Provisions from Petitioner's 2d Supplement to
:
Motion for Summary Judgment
Motion for Summarv Judgment
2014 NDAA, Pub. L. I 13-66, S 1035
2016 NDAA, Pub. L. II4 92t S 1034

Case I:04-cv-O2O22-PLF Document 421-3 Filed 03/03/L6 Page 2 of 7

 4
4

ro

BE

a government-controlled facility ; and

(A) such government maintains control over any facility at which
the individual is to be detained if the individual is to be housed in

that-

(5) Any assurances provided by the governm€nt of the foreign
country to which the individual is to be transferred, including

(4) Any actions taken by the United States or the foreign country
to which the individual is to be transferred, or change in
circumstances in such country, that reduce the risk óf
reengagement of the type described in paragraph (3). '

(3) Any confirmed case in which an individual transferred to the
foreign counffy to which the individual is to be transferred
subsequeirtly engaged in terrorist or other hostile activity that
threatened the United'States or United St¿tes persons or interests

(2) The security'situation in the foreign country to which the
individual is to be transferred, including whether or not the
country is a stâte sponsor of terrorism, the presence of foreign
terrorist groups, and the threat posed by such groups to the United
Stâtes.

(1) The recommendations of the Guantanamo Detainee Review
Task Forcè established pursuant to Executivê Order No. 13492
and the recommendations of the Periodic Review Boards
established pursuant to Nó. [sic] Executive Order 13567 ,as
applicable.

CoxslpsRsD rN MAKTNG
D¡"rsnvINettoN. In makin g the determination specified in
subsection (b), the Secretary of Defense shall specifically
evaluate and take into consideration the following factors:

(c) Facrons

2

l

(c) CoonuNATIoN wITH PRollsrrroN oN TRANSFER To
CeRretN Coulvrp¡ps.'--V/hile the prohibition in secrion 1033 is
in effect, no certification m4y be made under subsection (b) in
connection with the transfer of an individual detained at
Guantanamo to a countlry specified in such section.

(4) includes an intelligence assessment, in classifîed or
unclassified form, of th,e capacity, willingness, and past practices
(if applicable) of the foreign country or foreign entity concerned
in relation to the certification of the Secretary under this
subsection.

and

(A) considered such circumstances'; and
(B) determined that the actions'trj be taken as descri bpd in
paragraph (2XC) will substantially mitigate the risk ôf recidivism
with regard to thq indiv-idual to be transferred;

I

(3) if the country to which the individual is to
be transferred is a country to which the United States transferred
an individual who was detained at United States Naval Station,
Guantanamo Bay, Cuba, at any time after September ll,2O0I,
and such transferred individual subsequently engaged in any
terrorist activity, the Secretary has-

allies or interests; and
(D) þas agreed to share with the United
States any information that is related to the individual;

(B) maintains co,ntrol over each detention
faciliry in which the individual is to be detained if the individual
is to be housed in a detention facility;
(C) has taken or agreed to take appropriate steps to substantially
mitigate any risk the individual could attempt to reengage in
terrorist activity or otherwise threaten the United States or its

(A) is not a designated state sponsor of
terrorism or a designated foreign terrorist organization;

Case L:O4-cv-O2O22-PLF Document 421-3 Filed 03/03/L6 Page 3 ot 7

 5

4

(l) A detailéd

statement of the basis

foi the transfer or release.

(d) NoTIFICATIoN.-The Secretary of Defense shall notify the
appropriate committees of Congress of a determination of the
Sàãreiary'under subsêðtie¡ 1a) ði" (b) riot iateiithän lOr'days before
the transfer or release of the individual under such subsection.
Each notification shall includ e, at a minimum, the fol lowing:

(8) In the case of an individual who has been tried in a court or
comþètent'tribunàl of the Ûnited Stateslhaving jurisdictioir on
charges based on the same conduct that serves as a basis for the
détermination'that'the individual is an enemy combatant, whether
or not the individual has been acquitted of such charges or has
.beei'conúicted and has completeã serving the sentence pursuant
to the conviction.

authorities.

(7) Any record of öooperation by the individualto bertransferred
'with Únited: States intêlii gence and; laú' enforcement authoriti es,
pursuant to a pre-trial agreement, while in the custody of or under
thé effective control of the Department of Defense, and any
agreements and effective mechanisms that may be in place, to the
extent relevant and necessary, to provide continued cooperation
with the United States intelligence and law enforcement

(6) An assessment of'the capacity, ûillingness, and past practices
(if apþliiablê) of the foreign c'òuntrydescribe in paragraph (5) in
meeting any assurances it has provided, including assurances
under parâgraph'(5) regarding its capacity and willingness to
mitigate the risk of reengagement.

(B) such government has taken or agreed to take actions to
substantially mitigate the risk of the individual engaging or
reengaging in any terrorist or other hostile activity that.threatens
the,Üräted Søtes orUnited:Stâtes pérsons or interests.

42L-3
Filed 03/03/1-6 Page 4 of 7

3

(3) A description of actions taken to mitigate
the risks of reengagement by the individual as described in
iubsection (bX2XC), including any actions taken to address
factors relevant to an applicabie prior case of reengagement
dlscribed in subsection (bX3).

(2) An explanation why the transfer of the individual is in the
national securitvJ interests of the United States.

(1) A deøiled statement of the basis for the
transfer of the individual.

(e) Reronr.-rühenever the Secretary makes a certification
under SubSection (b) with respect to an individual detained at
Guantanamo, the Secretary shall submit to the appropriate
committees of Congress, together
lwith
such cèrtification, a'report that shall include, at a minimum,
the following:

(2) for whom agreements and effective mechanisms are in place,
to the extent relevant and necessary, to provide for continued
ccioperation with United States intelli gence and law'enforcement
authóritieÉ'.

(1) who has substantially cooperatèd with '
United States intelligence and law enforcement authorities,
pgrsïant to a pretrial agreement, while in the custody of or under
the effective Control of the:Department of Defense; and

(d) RECoRD oF CoopERAtIoN.-In assessing the risk that an
individual
detained at Guantanamo will engage in terrorist
.
activity or other actions that could affectthe national security of
the United Stâtes'if released for the purpose of making a
certification under subsection (b), the Secretary'may give
favoratle consideration to any such individual-

Case t:04-cv-02O22-PLF Document

 6

4

section:
'' l

(Ðr

Repear- oÈ'S upsnsEDED AurHoRrrrES

NavalStation,GuantanamoBay,Cúba'

-i

:''

'

.

-

[omined]

.

:

(2) The term "individual detained at Guantanamo" means any
individual located at United States Naval Station. Guantanamo
Bay, Cuba, as of October 1, 2009, who(A) is not a, citizenlof the Unitèd States or a member of the Armed
Forces of the United States; and
(B) is-(i) in the custody or under the control of the Department
of Defense; or (ii) otherwise under detention at United States

Representatives.

(1) The term'lappropriatè committées of CongreSs" meâirs-"
(A) the Committee on Armed Services, the Committee on Foreign
Relations, the Committee on Appropriations, and the Select
Committeè on Intelligence of the Senate; and
(B) the Committee on Armed Services, the Committee on
Appropriations, the Comrnittee on Foreign Affairs, and the
Permanent Select Committee on Intelligence of the House of

(e) DeruNtuoNS.-In this

(5) A description of the evaluation conducted pursuant to
subsection'(c), idcluding a summary of the assessment required
by paragraph (6) of such subsection.

(c)(3), I

reengagement by the individual to be transferred or released,
including any actions taken to address factors relevant to a prior
:'
case of reengagê.ment described in iubsection

(3) A descriplion of any actions taken to mitigate the risks of

(2) An explanation of why the transfer or release is in the national
security interests of the United States.

4

(2) The term 'iin'dividual detained at Guântanamo" means any
individual located at United States Naval Station, Guantanamo
Bây, Cuba, as of October 1, 2æg,who- I i"
(A) is not a citizen of the United States or a member of the Armed
Forces of the United Siãtes;iand

The term "appropriate committees of Congress" means(A)lthe Committee on l\rrned Services, the Committee on Foreign
Relatións, the Committee on Appropriations, and:tñe Select
Committee on Irntelligence of the Senate; and
(B) the Committee on Armed Services, the Committee on Foreign
Affairs, the Cornmittee on Appropriations, and the Permanent
Seleòtleommittee on'Intelligence of the House of
Representatives.

(l)

(f) DenNiîioNrs:-.rln this sèction:

,

(7) A classified summary of(A) the individual's record of cooperation.
if any, while in the custody of or under the effective control of the
Department. of Defense ; and
(þ any'agrèements anc'l mechani:silsrin
plage,to providefor continuing cooperation

(6) An assessment whether, as of the date rof
the certification, the co:untry to which the individual is to be
transferred is facing a tlhreat that could substantially affect its
ability to exercise control over the individual.

(5) A copy of the final recommendation by the Guantanamo
Detainee Review Task Force eshblished pursuant to Executive
Ordei 13492 relating tc, the individual uttd, if qpplicable,updated
inforiúation related to any ôhange !o Such,recoinmendaîoii.

individual.

(4) A copy of any Periodic Review Board findings relating to the

Case I:O4-Iv-02O22-PLF Document 42L-3 Filed 03/03/16 Page 5 of 7

 t7

5

Case L:04-cv-O2O22-PLF Document
Filed 03/03/1_6 Page 6 of 7

(g) REnnm oF SUPERSEDED REQUIREMENTS aN¡
Lll,tItRtloNS.-Section 1035 of the National Defense
Authorization Act for Fiscal Year 2Ol4 (Public Law 11346;127
Stat.851; l0 U.S.C.801 note) is repealed.

8s41(r3)).

(4) The term "state sponsor of terrorism" has the meaning given
that term in section 301(13) of the Comprehensive lran Sanctions,
Accountability, and Divestment Act of 2Ol0 (22 U.S.C.

(3) The term "foreign terrorist organization" means any
organization so designated by the Secretary of State under section
219 of the Immigration and Nationality Act (8 U.S.C. 1189).

(B) is-(i) in the custody or under the control of the Department
of Defense; or (ii) otherwise under detention at United States
Naval Station, Guantanamo Bay, Cuba.

42L-3

 I

4

None of the funcls appncpriated or otherwise made available in
this Act may be used to transfer any individual detained at United
States Naval Station Guantanamo Bay, Cuba, to the custody or
control of the inrlividual's country of origin, any other foreign
country, or any other fcrreign entity except in accordance with
sections 1033 and 1034 of the National Defense Authorization
Act for Fiscal Year 2016.

None of the funds appropriated or otherwise made available in
this Act may be used to transfer any individual detained at United
States Naval Station Guantanamo Bay, Cuba, to the custody or
control of the individual's country of origin, any other foreign
country, or any other foreign entity except in accordance with
section 1035 of the National Defense Authorization Act for
Fiscal Year 2014.

Filed 03103/1-6 Page 7 of 7

Corresponding Provisio¡rs from Petitioner's 2d Supplement to
Motior¡ for Summarv .Iudsment
2016 Consol. Approps. Act, Pub. L. I l4-I I 3,
Div. C, Title VIL(, $ 8/05.

42L-3

Provisions from Petitioners
Motion for Summarv Judgment
20t15 Consol. Approps. Act, Pub. L. I 13-235,
Div. C, Title VIII, S 81 14.

6

Case L:04-cv-02O22-PLF Document

 Case L:O4-Iv-02O22-PLF Document

42L-4

Filed 03/03/1-6 Page L ot 2

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
SAIFULLAH PARACHA,
Petitioner,

v

BARACK H. OBAMA, et al.,
Respondents

)
)
)
)
)
)
)
)
)
)

Civil Action No. 04-2022 (PLF)

RESPONDENTS' REPONSE TO SECOND.SUPPLEMENT TO
PETITIONER'S MOTION FOR SUMMARY JUDGMENT
TO INCLUDE THE 2016 AUTHORIZATIONS AND APPROPRIATIONS ACTS

EXHIBIT 4
PROVISIONS REGARDING AGREEMEN-TS , ]
WITH OTHER COUNTRIES TO RECEIVE DETAINEES

49

 o

5

I

Not later than 5 days after the conclusion of an agreernent with a
country, including a state with a compact of free association with
the United States, to receive by transfer or release individuals
detained at United States Naval Station, Guantanamo Bay, Cuba,
the Secretary of State shall notify the Committees on
Appropriations in. writing of the terms of the agreement, including
whether funds appropriated by this Act or prior Acts making
appropriations for the Department of State; foreign operations, and
related programs will be made available for assistance for such country pursuant to such agreement.

ol2

Not later than 5 days after the conclusion of an agreement with a
country, including a state with a compact of free association with
the United States, to receive by transfer or release individuals
detained at United States Naval Station, Guantanamo Bay, Cuba,
the Secretary of State shall notify the Committees on
Appropriations in writing of the terms of the agreement,
including whether funds appropriated by this Act or prior Acts
making appropriations for the Department of State, foreign
operations, and related programs will be made available for
assistance for such country pursuant to such agreement.

Filed 03/03/16 Page 2

OTHER CO
TO RECEIVE DET
Corresponding Provisions from Petitioner's 2d Supplement to
Motion for Summary Judgment
2016 Consol. Approps. t{ct, Pub. L. I I4-I 13,
Div. K,Title VII, S 7064.

42I-4

PROYISIONS REGARDING AGREEMENTS
Provisions from Petitioners
Motion for Summary Judgment
2015 Consol. Approps. Act, Pub. L. I 13-235,
Div. J,Title VII, S 7082.

Case L'.O4-Iv-O2022-PLF Document

 HISTORICAL STATUTES

Congress has routinely in time of war appropriated funds for the

executive to hold and feed enemy combatants.8.g., July 6, 1812,2Stat.777,

"An Act for the safe keeping and accommodation of prisoners of war";
February 9, 1900, 31 Stat. 15; July 2,1942,56 Stat. 633; etc. When statutes
mention the treatment, retention, or release of enemy combatants they

invariably defer explicitly or implicitly to the executive's duty to make the
actual decisions. E.g., the law of July 6, 1812, authorized"the safe keeping,

support and exchange of prisoners of war as he [the President] may deem
expedient ," 2 Stat. 777; joint resolution of December

1

1, 1861, in which

Congress "requested" the President to "inaugurate systematic measures to

the exchange of prisoners in the present rebellion." Official Records of the
War of the Rebellioa Series

II, vol. 3,157

,ln World War II, when much of Europe was ,ov€rrulì

with

a

criminal regime and America was fully engaged inthe struggle against
it, several hundred thousand of the captured soldiers of that'regime
were housed.,in camps,throughout the United States. Many of them were

51

 allowed to work in agriculture and other industries not directly related
to the war effort. Arnold Krammer, Nazi Prisoners of War in America
(New York: Stein & Day, 1,979); Wikipedia, "German prisoners of war in
the United States."
The only punitive law referencing enemy prisoners passed by
Congress during World War

II was Pub. L.47, April 30,1945,59 Stat. 101,

t¡alzina i+
oi.l +Lo
¡rre¡\¡r¡ó
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Congress during the World War

II years routinely included the care

and maintenance of enemy prisoners in its appropriations for the military.

E.g., 55 Stat. 151,379,813; 56 Stat. 620, 633;57 Stat. 179,369;58 Stat.
302, 579, 596; 59 Stat. 389, 406; 60 Stat. 482, 546, 565.
Congress often provided for enemy prisoners of various types

together, showing an indifference to the varying degree of fault,

if

any,

leading to their restraint. E.g., it appropriated "necessary expenses for
interned persons and prisoners of war and other persons in Army custody
whose status,is'determined by the Secretary of Wâr to,be similar to prisoners

of war, and:persons detained in Army custody pursuant to Presidential
proclarnation." 55 Stat. 813-814; semble, 56 Stat,633.
On,several,occasions Congress ameliorated the lot of enemy

52

.

 prisoners. Pub. L.635, June 27,1942,56 Stat. 461, exempted from import
duties articles addressed to "enemy prisoners of war and enemy civilian
internees and detainees." 57 Stat 47V and 568 (1943) allowed the use

of

prisoner of war labor on Federal non--military work projects. 58 Stat. 491

(1944) continued this authorization for "Seryices or labor of prisoners of
war, enemy aliens, and American born Japanese who are in control of the
Federal Government," emphasizing Congress' indifference to possible
degrees of enmity among those unfortunate enough to face wartime

confinement. Indeed, 58 Stat. 16 (1944) lumped prisoners of war with

American GIs in authorizing their use when necessary in agriculture.
Legislative deference to the executive is especially significant during
the Korean conflict, when truce negotiations stalled for more than two years,

from June 28, 1951, to July 27,1953, over the question whether prisoners
would be allowed to choose not to be repatriated. During all that time, when

public attention was riveted on the large number of Chinese and North
Koreans who did not want to return to their homes, and on the handful

of

Americans who wanted to stay in China or North Korea, Congress never
interfered with the executive's responsibility to deal with the problem. See
64 Stat. (1950) through 68 Stat. (1954).

53

 Legislation dea,ling with the prisoners shipped to Guantanamo
beginning in2002 shows,no such'pragmatic indifference to possible fault.
Numerous revanchist restrictions on Guantanamo detainees' enacted 20022012 are collected in the note following

54

l0 U.S.C.A.

801,

 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SAIFULLAH PARACHA,
Petitioner,

Civil Action 04cv02022-PLF

v

BARACK H. OBAMA,
et al.,
Respondents.

POINTS AND AUTHORITIES
IN SUPPORT OF
PETITIONER'S MOTION FOR SUMVIARY JUDGMENT
:k***

[pages 8-10:]

III.

CONGRESS HAS BEEN,EXPLICIT IN ITS PUNITIVE INTENT.
The "congressional intent to punish," 351 F.3d at 1218, is as clear as it

was in Dr. Foretich's case and is much more enthusiastically expresséd.

55

 Senator Tom Cotton (R.,

Ark.) summed the intent up nicely:

'oAs far as

I'm

concerned, every last o.ne of them ftþe Guantanamo prisoners] can rot in

hell. But as long as they don't do that, then they can rot in Guantanamo

Bay." Senate Armed Services Committee Hearing on the Guantanamo
Detention Facility and the Future of U.S. Detention Policy, February 5,
2015, transcript 56:15-18. Senator Saxby Chambliss (R., Ga., now retired)
prisoners at Guantanamo "are some of the most hardenedsaid that the
---l-- -determined extremists," and are "individuals, I might aeld, who ha-ve akeady
demonstrated a propensity for violence." (He clarified the difference
between such legislative determinations of guilt and the stuffy evidentiary
procedures still in vogue in the

branch: He said he had observed on a

visit to Guantanamo that "we can see in their eyes that criminal activity is
occupying 100 percent of their thoughts.") December 3, 2014,160 Cong.
Rec. 56285. Senator Orrin Hatch (R., Utah) said, "The detainee population

of Guantanamo contains battle-hardened terrorists." January

27

, 2015,

16l

Cong. Rec. 5504. Senator Marco Rubio (R., Fla.) denounced the government

of Uruguay for calling some released Guantanamo detainees "asylum
seekers" when the detainees were, he,said, "responsible for the murdçr

Americans." Febru ary

,

56

27

, 2015, 161 Cong. Rec.

of

S 1 195.

Members of,the House of Representatives were equally explicit in

 their legislative findings of guilt and their'intention to punish. Rep,.J' Randy
Forbes (R., Va.) claimed that the restriçtions had,effectively l'stopped some

of,the worst terrorists in the world at Guantanamo Bay from being
transferred to the soil:of the United States.'l.June 14, 2013,159rCong, Rec.
H3597. V/ith referen-c.e to,the;five prisoners çxchang-ed for Sargent Bowe
Bergdahl, Rep. Joe:\Milson (R., S,C.) said,

ooThese

terrorists have the blood,

of innocent civilians by the,9lll.attacks and American.soldiers,on their

hands

: .

.'2

September 9, 2014,160 Cong. Rec. H7334. Rep. Rodney

Frelinghuysen (R., N.J.) said, in support of the restrictions,'Íwhat âb-out

justice for the

victims

who died on September

lt,200l?"

June 19,

2014,160 Cong. R. H5522. Rep. Brad V/enstrup (R., Ohio) said, "Detainees
at Guantanamo are held there because they were engaged in dangerous acts

threatening the United States of America and its allies." May 21,2014,160
Cong.

Re

c.'tl+lZg. Rep. Tom Cotton (R., Ark., now

the

junior Senator frgm

that state) said, "Who are these detainees? They are not goat herders who
were innocently swept up by the American military,,nor,are they foot

'
'

soldiers or couriers. These are the worst of the worst." June 19, '20r4
Cong. Rec. H5517.

These and many other candid admissions of punitive intent are the

logical corollary of the belief of a majority of the legislators imputing

57

 continuing'danger'to each and every prisoner at Guantanamù-even the'67year-old pro-American Saifullah,Paracha. As'Rep,, Jerrold Nadler (D., N.Y.)

correctly observed, "legislative bodies have no right to make such judgments
about individuals." June '19,2014, I60 Cong.'R. H55 18. The resulting

restriations are reprecisely that whioh the Bill of Attainder clause was
designed to prevent: a congressional determination of blameworthiness and

infliction of punishment." Foretic.It v. ïJnited Stafes, 35 1 F.3d at 1225,.,
Under the Constitution and the law of this Circuit. netitioner Paracha must
be granted relief.

*rÉ?k?k

Respectfufly çubmitted,

'Çsþf;fæ

fi-l:

$l't^Èt

lsl
GAILLARD T. HUNT

April 30,,2015

Attorney for Petitionçr
(D.C. Bar No. 089375)
10705 Tenbrook Drive
Silver Spring, Maryland 20901
(No! admitted in Maryland)
301-530-2807
,

.net

(Fax: 301-564-6059)
::

58

 : IN THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SAIFULLAH PARACHA,
Petitioner

)

'

V.

Civil Action' 04-cv-02022-PLF

BARACK H..OBAMA,
et al.,
Respondents.

SUPPLEMENT TO
PETITIONER'S MOTION FOR SUI\{MARY JUDGMENT
TO INCLUDE THE 2016
NATIONAL PEFENSF' AUTHORIZATION ACT
:ls

,r

rt

?k

[pages 3-5:]

::

.

I. THE LEGISLATIVE FINDINGS AND COMMENTS CONTINUE
TO STRESS THE PUN,ITIVE NATURE OF THESE ENACTMENTS:
"Those who remain at Guantanamo are 'worst of the worst,"' said Mr

Mike Coffman (R., Colo.), May 14,2015, Congressional Record H3168, and

59

 October 8, 2015, Cong. Rec. H6898. Although the inaccuracy of this

legislative verdict is not essential to his argument, petitioner Paracha cannot
refrain from pointing out that he personally has never been suspected of
anything more than peripheral assistance to some men he may or may not
have known were plotting bad acts, and he as much as anyone refutes the
idea that a meritorious winnowing of prisoners has released the

less
:

dangerous and left only the "worst of the *¡/orst." In tnrth, releases have been
based on intemational negotiafions and other randomizing factors. Those left

at Guantanamo are simply the least fortunate victims of the chaos of war.

But accurate or not, the legislative verdict was the basis of the
legislative restrictions on releasing "the terrorists who are there fat
Guantanamo Bay] because lhey want to,hurt Americans." Mr. Rodney Davis

(R., Ill.), February 11,2015, Cong. Rec. Ijrg74,Ms. Vicky ttartlZer (R., IVIo.)
.i

declared that Guantanamo is the safest place "to hold detainees who were
engaged in dangerous acts threatening the U.S. and our allies." l l{ay 14,

2015, Cong. Rec. H3166. Mr. Ryan Zinke (R., Mont.) added that they "are

committed to killing Ame¡ican Citizens." May 14,2015, Cong, Rec. H3166.
Senator Roberts declared that "the detainees currently held at Guantanamo

Bay are enemy combatants, terrorists, individuals with no

November 19,2015, Cong. Rec. S8114.

60

remorse

."

 The conclusory label "terrorists" was often applied to all prisoners at
Guantanamo without distinctior. E.g., Senator Lankford, October 7,2015,
Cong. Rec. S7199; Senator McConnell, November 19,2105, Cong. Rec.
s81 14

Mr. Jerrold Nadler (D., N.Y.) remains a voice of constitutional sanity:

"I know some will

say they are dangerous terrorists, and some are. But some

of them are not." May 14,2015, Cong. Rec. H3166. Before these
congressional determinations of guilt passed, he declared that they i'would
be a violation of the

bill of attainder section

." April 29,2015, Cong.

Rec. H2604. Now that they are enacted and are inhibiting the normal course

of executive activities, this court should likewise condemn them.

*:k¡k*

Respectfully submitted,

e4Ålßnûfr

W*

lsl
GAILLARD T. HUNT

January L5,2016

Attorney for Petitioner
(D.C. Bar No. 089375)
10705 Tenbrook Drive
Silver Spring, Maryland 2090I
(Not admiued in Maryland)
301-530-2807
gthunt@mdo.net
(Fax: 301-564-6059)

61

 IN THE UNITED STATES DISTRICT COURT

.

FOR THE DISTRICT OF COLUMBIA

SAIFULLAH PARACHA,
Petitioner,
V

C

ivil Action 0 4 cv 02022-PLF

AD
AT .f'r,ñ\J
ADlATT]\íD\I-IE,'\IIECT'T'DT\
\.rI\¡1L
l\rrv\Jl-:/\>
L./tYllJl\ r E
I I)lJ

BARACK H. OBAMA.
et al.,
Respondents.

REPLY IN SUPPORT OF

PETITIONER'S MOTION FOR SUMMARY JUDGMENT

***rf

fSection III.c., pages 17-18:]

c. The reputational injuries of Paracha and the other prisoners are

clear, dramatic, and devastating.

62

 The government's complaint,on page 12 of its opposition that Paracha
has "not identified any such [reputational] injury with particularity" is

puzzling.
There is nothing vague'or difficult to quantifr,about the reputational

injury from these bills of attainder In,couqtry after colrntry the authorities
have reasoned,

"If the U.S.,refuses t9 take these people, wþ:should we?"

Thomas;Silberhorn, member of the German Parliament, quoted May

29,

.

2009, Washington Post, by Craig Whitlock and Karen de Young,
h

st.

dyn/contentlarLiclel2DÙgl05l28/4R2009052803920.html.

'rThe'hitches that

have developed inadmitting some uighurs tg,the United States have, in tum,
severely hampered,efforts to send,the nine other Uighurs to Gern-rany l? trd;ln

Chile, "There could be col_lateral,damage from taking,inprisoners linked to
terrorist açtso" said Chile4n Se;natol Ivan Moreira, apparently blinded by'the

bills of attainder to the decisions exonerating of many of the prisoners.
S

eptembe

r 9, 20   4, F ir s tpo s t, http //www. firstpo
:

mulline-us-request-take-suantanamo-detainees-

st.

com/world/chille-

17 03

497 .html. Another

Chilean politician was more explicit: "It may have side effects entering
inmates linked to terrorist crimes, which have even been involved, f-or

63

 'example, in the attack on the Twin Towers in New York." Sr. Jorge Tarud,
quoted in Telesur,' September 10, 2014,

http: I lwww.telesurtv.net/enslish/news/Chi lean-Opposition-Rei ects-'
Receiving-Guantanamo-Detaine es-207 4091 0-0076,html

.

"The fewer people with suspicious backgrounds the better," said former
Estonian Minister of Interior Juri:Pihl, quoted in'Eesti'Paevaleht Online,

August
fisures
said tha-t
--'Q-'------ brinsins
"0"----- ---' rnolitica-l
-*-------'-'-at-*-a:' *in the
-27.2009. "In Colombia..
prisoners could be dangerous for the country, and that it would be
unacceptable to place more prisoners inside their jails." Daniel Saigar

Antolinez ; El'Mundo, June 5',2A74,
kntp: I I www: elespectador. com/noticias/elmundó/latinoamerica -deberia-

recibir-presos-dê-grantánamo=articul,ô,49651:1. And so on. The reputational

injury to the Guantanamo detainees weighed'heavily'upon them as
politicians in country,after country resistêd'American efforts to resettle
them
¡b rb *::

64

tr

 Respectfully submitted,

e@i/'lß4*l; Ü+'"*t
lsl
GAILLARD T. HUNT

June 19,2015

Attorney for Petitioner
(D.C. Bar No. 089375)
10705 Tenbrook Drive
Silver Spring, Maryland 20901
(Not admitted in Maryland)
301-s30-2807
.net

(Fax: 301-564-6059)

65

 PETITIONER'S APPENDIX
Respectfully submitted,

C*-U"-ü , t,W",r,Y
GAILLARD T. HUNT
D.C. BarNo.89375
Attorney of Record for Petitioner
10705 Tenbrook Drive
Silver Spring, Maryland 2090t
(Not admitted in Maryland)
30t-530-2807
gthunt@mdo.net