Case 1:08-cv-02083-PLF Document 208 Filed 08/10/18 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
)
AMMAR AL-BALUCHI
)
a/k/a Ali Abdul Aziz Ali,
)
)
Petitioner,
)
)
v.
)
Civil Action No. 08-cv-2083 (PLF)
)
JIM MATTIS,
)
Secretary of Defense, et al.,
)
)
Respondents.
)
)

RESPONDENTS’ REPLY IN FURTHER SUPPORT OF THEIR
CROSS-MOTION TO HOLD PETITION IN ABEYANCE
PENDING COMPLETION OF MILITARY COMMISSION PROCEEDINGS

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TABLE OF CONTENTS

ARGUMENT .................................................................................................................................. 1
I.

Councilman And In re al-Nashiri II Instruct The Court To Abstain in
Petitioner’s Habeas Case Pending Completion Of His Military
Commission Prosecution. ....................................................................................... 1

II.

An Exception From Abstention Is Not Warranted Because Petitioner Has
Not Raised A Substantial Question Regarding A Right Not To Be Tried.............. 5
A.

Petitioner’s Argument Regarding His Status Does Not Warrant an
Exception to Abstention.............................................................................. 6

B.

Petitioner’s Cruel and Unusual Punishment Claim Does Not Raise
a Substantial Question Regarding Whether his Military
Commission is Ultra Vires and Thus Lacks Jurisdiction To Try
Him In The First Instance. .......................................................................... 8

C.

Petitioner’s Double Jeopardy Claim Does Not Raise a Substantial
Question Regarding a Right Not To Be Tried. ......................................... 12

D.

Petitioner’s Allegations of Outrageous Government Conduct Do
Not Provide Him With a Right Not to Be Tried. ...................................... 14

III.

Abstention Does Not Violate the Suspension Clause. .......................................... 16

IV.

Adjudicating The Claims Currently Before This Court Risks Interference
With Petitioner’s Ongoing Military Commission Proceedings. ........................... 16

V.

The Possibility That Petitioner Might Seek Additional Habeas Relief Does
Not Warrant Deviating From The Settled Practice Of Staying Habeas
Proceedings During The Pendency Of A Military Commission. ......................... 20

CONCLUSION ............................................................................................................................. 22

ii

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TABLE OF AUTHORITIES
Cases
Afro-Lecon, Inc. v. United States,
820 F.2d 1198 (Fed. Cir. 1987)................................................................................................. 18
al Bahlul v. United States,
767 F.3d 1 (D.C. Cir. 2014) ...................................................................................................... 11
Al Odah v. Bush,
593 F. Supp. 2d 53 (D.D.C. 2009) ................................................................................ 17, 18, 19
al-Nashiri v. Obama,
76 F. Supp. 3d 218 (D.D.C. 2014) ............................................................................................ 19
Ali v. Trump,
Civil No. 1:10-cv-01020 (RJL), slip op. (D.D.C. Aug. 10, 2018) ............................................ 11
Chambers v. Bowersox,
157 F.3d 560 (8th Cir. 1998) ...................................................................................................... 5
Gregg v. Georgia,
428 U.S. 153 (1976) ................................................................................................................ 3, 8
Gusick v. Schilder,
340 U.S. 128 (1950) .................................................................................................................. 16
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) ................................................................................................................ 3, 9
Hennis v. Hemlick,
666 F.3d 270 (4th Cir. 2012) .................................................................................................. 4, 8
Hudson v. United States,
522 U.S. 93 (1997) .................................................................................................................... 12
In re al Nashiri,
835 F.3d 110 (D.C. Cir. 2016) (“In Re al-Nashiri II”) ...................................................... passim
In re Guantanamo Bay Detainee Continued Access to Counsel,
892 F. Supp. 2d 8 (D.D.C. 2012) .............................................................................................. 21
Khadr v. Bush,
587 F. Supp. 2d 225 (D.D.C. 2008) (“Khadr II”) .............................................................. passim
iii

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Khadr v. Obama,
724 F. Supp. 2d 61 (D.D.C. 2010) (“Khadr III”).......................................................... 18, 19, 20
Kiyemba v. Obama,
555 F.3d 1022 (D.C. Cir. 2009) ................................................................................................ 11
Kugler v. Helfant,
421 U.S. 117 (1975) .................................................................................................................. 10
Latif v. Obama,
677 F.3d 1175 (D.C. Cir. 2011) ................................................................................................ 11
McKenzie v. Day,
57 F.3d 1461 (9th Cir. 1995) ...................................................................................................... 5
Murphy v. Commonwealth of Virginia,
896 F. Supp. 577 (E.D. Va. 1995) ............................................................................................ 13
North Carolina v. Pearce,
395 U.S. 711 (1969) ............................................................................................................ 12, 13
Rasul v. Meyers,
563 F.3d 527 (D.C. Cir. 2009) .................................................................................................. 11
Reid v. Covert,
354 U.S. 1 (1957) ........................................................................................................................ 6
Rochin v. California,
342 U.S. 165 (1952) .................................................................................................................. 15
Schlesinger v. Councilman,
420 U.S. 738 (1975) ........................................................................................................... passim
Sefass v. United States,
420 U.S. 377 (1975) ............................................................................................................ 12, 13
Soering v. United Kingdon,
161 Eur. Ct. H.R. (ser.A) (1989)........................................................................................... 4, 12
Telecomms. Research & Action Ctr. v. F.C.C.,
750 F.2d 70 (D.C. Cir. 1984) ...................................................................................................... 2
Texas v. Cobb,
532 U.S. 162 (2001) .................................................................................................................. 11

iv

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U.S. ex rel. Toth v. Quarles,
350 U.S. 11 (1955) ...................................................................................................................... 6
United States v. Andrews,
146 F.3d 933 (D.C. Cir. 1998) .................................................................................................. 12
United States v. Black,
733 F.3d 294 (9th Cir. 2013) .............................................................................................. 14, 15
United States v. Boone,
437 F.3d 829 (8th Cir. 2006) .................................................................................................... 15
United States v. Cordero,
668 F.2d 32 (1st Cir. 1981) ....................................................................................................... 15
United States v. Padilla,
No. 04-60001, 2007 WL 1079090 (S.D. Fla. Apr. 9, 2007) ..................................................... 15
United States v. Rosendahl,
53 M.J. 344 (C.A.A.F. 2000) .................................................................................................... 13
United States v. Torres,
115 F.3d 1033 (D.C. Cir. 1997) .................................................................................................. 3
United States v. Toscanino,
398 F. Supp. 916 (E.D.N.Y. 1975) ........................................................................................... 15
United States v. Toscanino,
500 F.2d 267 (2d Cir. 1974)...................................................................................................... 15
United States v. Warneke,
199 F.3d 906 (7th Cir. 1999) .................................................................................................... 13
Younger v. Harris,
401 U.S. 37 (1971) ...................................................................................................................... 2
Statutes
10 U.S.C. § 844 ............................................................................................................................. 13
10 U.S.C. § 948c ....................................................................................................................... 7, 17
10 U.S.C. § 948d ................................................................................................................... 7, 8, 17
10 U.S.C. § 949h ........................................................................................................................... 13
10 U.S.C. § 949s ........................................................................................................................... 11
28 U.S.C. § 2241(e)(2) .................................................................................................................... 2
42 U.S.C. § 2000dd(d) .................................................................................................................. 11
Pub. L. No. 111-84 .......................................................................................................................... 2
v

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Petitioner asks this Court to disregard the abstention principles enunciated in Schlesinger
v. Councilman, 420 U.S. 738 (1975) and In re al Nashiri, 835 F.3d 110 (D.C. Cir. 2016), cert.
denied, 138 S. Ct. 354 (Mem.) (2017) (“In re al-Nashiri II”), as well as the decisions of several
Judges of this Court, and deny Respondents’ cross-motion to hold his habeas petition in abeyance
pending resolution of his military commission proceedings notwithstanding the fact that in the
nearly ten years that his petition has been pending he has asserted little to no interest in having the
Court adjudicate its merits. Indeed, Petitioner’s actions to date, and in particular, his motion to
permanently enjoin his military commission, make clear that Petitioner has and will continue to
use this habeas proceeding to assert claims that have the potential to interfere with his military
commission proceedings and are more properly raised before the military commission that has
been convened to try him for violations of the laws of war and other capital offenses related to the
terrorist attacks of September 11, 2001. The Court should reject Petitioner’s transparent efforts to
circumvent the law of the Circuit and the comprehensive system of justice Congress has designed
to try alien unprivileged enemy belligerents, and grant Respondents’ motion to hold Petitioner’s
habeas petition in abeyance pending resolution of his military commission.
ARGUMENT
I.

Councilman And In re al-Nashiri II Instruct The Court To Abstain in Petitioner’s
Habeas Case Pending Completion Of His Military Commission Prosecution.
As Respondents fully explained in their opening brief, Resp’ts’ Cross-Mot. to Hold Pet. in

Abeyance Pending Completion of Military Commission Proceedings (ECF No. 204-1) (Apr. 30,
2018) (“Resp’ts’ Br.”), the D.C. Circuit has determined that the military-commission system
created by Congress is adequate to fairly and fully protect defendants’ rights in prosecutions of
Guantanamo detainees in that system for violations of the laws of war. In re al-Nashiri II, 835
F.3d at 121-23. In particular, as the Supreme Court had in Councilman, the D.C. Circuit
1

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emphasized the need to consider the entire Article I system’s structure – including its appellate
review procedures involving an Article III court (the D.C. Circuit) – when the Court found the
military commission system established by the Military Commissions Act (“MCA”), Pub. L. No.
111-84, 123 Stat. 2190 (codified at 10 U.S.C. §§ 948a et seq.), adequate to protect a defendant’s
rights. In re al-Nashiri II, 835 F.3d at 123 (“We therefore conclude that . . . the MCA’s ‘integrated
system of military courts and review procedures’ . . . is sufficiently adequate to point in favor of
abstention.”) (quoting Councilman, 420 U.S. at 758). The D.C. Circuit also found that even when
a federal court may have jurisdiction to adjudicate a habeas petitioner’s rights, there exists an
important countervailing interest that compels the court to defer exercising that jurisdiction.1 In
re al-Nashiri II, 835 F.3d at 124-28. Consequently, the D.C. Circuit, extended the well-settled
doctrines of Younger v. Harris, 401 U.S. 37 (1971) (federal courts should not interfere with
pending state court prosecutions), and Councilman (federal courts should not interfere with
pending courts-martial), to the military commission system authorized by the MCA. In re alNashiri II, at 121-28.
Petitioner asserts that the abstention principles articulated in Councilman and In re alNashiri II are inapplicable to his capital military commission prosecution for two reasons: (1) he

1

For the reasons explained in Respondents’ Memorandum in Opposition to Petitioner’s Motion
for Permanent Injunction or Mandamus with Respect to His Unlawful Capital Military
Commission (ECF No. 203), at 9-11, 28 U.S.C. § 2241(e)(2) withdraws jurisdiction over
Petitioner’s claims against his military commission. Petitioner’s assertion that his claims sound in
habeas because he could obtain relocation out of “pre-Commission” detention in which he is
currently held ignores the fact that Petitioner is held in Camp VII with other high-value detainees,
including detainees who are not being tried by military commission, unlike the detainee in the
Hamdan case cited by Petitioner. See Resp’ts’ Opp’n to Pet’r’s Mot. to Preserve Evidence (ECF
No. 175) (Apr. 17, 2015), at 10. Likewise, Congress has channeled Petitioner’s claims against his
military commission to the Court of Appeals, either on mandamus, if appropriate, or ultimately on
appeal. See Resp’ts’ Mem. in Opp. to Mot. for Permanent Inj. or Mandamus (ECF No. 203) (Apr.
30, 2018), at 11-12 (citing Telecomms. Research & Action Ctr. v. F.C.C., 750 F.2d 70, 77 (D.C.
Cir. 1984)).
2

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is not a member of the United States military, Pet’r Resp. to Cross-Mot. to Hold Pet. in Abeyance
(ECF No. 207) (July 13, 2018) (“Pet’r Opp’n”), at 11-13, and (2) the MCA’s automatic, nonwaivable appeal procedures prohibit him from promptly and certainly vindicating his rights; thus
threatening him with an injury that is not incidental to every criminal proceeding, id. at 13-14.
Both arguments are without merit.
First, as Petitioner concedes, the D.C. Circuit rejected the argument that Councilman was
only applicable to military commissions designed to try U.S. service members. See Pet’r Opp’n
at 11-12; In re al-Nashiri II, 835 F.3d at 126. Petitioner’s argument, accordingly, is foreclosed.
See United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997) (district courts are obligated to
apply controlling Circuit precedent unless that precedent has been overruled by the Court of
Appeals en banc or by the Supreme Court).
Second, Petitioner’s argument that his military commission is not adequate to fully
vindicate his rights is also foreclosed. The D.C. Circuit’s holding that military commissions
convened pursuant to the MCA are “sufficiently adequate to point in favor of abstention,” 835
F.3d at 123, was made in the context of a collateral challenge to an MCA-authorized capital
military commission, see id. at 114, just as is the case here. Notably, this holding, as it relates to
the MCA’s review procedures, is consistent with the Supreme Court’s preference for automatic
appellate review – particularly with respect to military commission judgments and death sentences.
See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 616 (2006) (plurality opinion) (majority noting that
intervention in pre-MCA military commission warranted because, among other things, defendant
“ha[d] no automatic right to review of the commission’s ‘final decision’”); Gregg v. Georgia, 428
U.S. 153, 198 (1976) (plurality opinion) (noting that an automatic appeal is an “important
additional safeguard” against arbitrarily imposed death sentences).

3

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In addition, Petitioner’s second argument is premised on the theory that, in the wake of his
prior detention, having to endure a trial and, if convicted and sentenced to death, a long delay in
imposition of the death sentence due to a non-waivable appellate process, constitutes cruel and
unusual punishment, thereby injuring him in a manner that is not incidental to typical criminal
proceedings. 2 See Pet’r Opp’n at 14. But the D.C. Circuit has concluded that alleged harms that
are grounded in a Guantanamo detainee’s allegations regarding treatment during his detention are
“‘attendant to resolution of his case in the military court system’ and, as a result, do not render
abstention inappropriate.” In re al-Nashiri, 835 F.3d at 129 (quoting Councilman, 420 U.S. at
758). The Court explained that such allegations are about a Guantanamo detainee’s “particular
vulnerabilities to a trial by a military commission” and “say nothing about the competence of the
military commission itself[.]” Id. The Fourth Circuit has reached a similar conclusion. See Hennis
v. Hemlick, 666 F.3d 270, 279 (4th Cir. 2012), cert. denied, 556 U.S. 104 (2012) (rejecting
argument that abstention was inappropriate because court-martial defendant had already
experienced five-years of criminal proceedings, including the imposition of a death sentence, and
anticipated a long appellate process if he was convicted and sentenced to death as a result of his
new trial).
Furthermore, Petitioner’s theory that the risk of facing a long delay before execution
violates the constitutional and statutory prohibitions against cruel and unusual punishment is based
on Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), a decision of the European Court
of Human Rights that is not binding on this Court. The Soering court held that delays in the

2

Petitioner’s assertion that Respondents have conceded his factual assertions regarding his prior
detention is baseless. As Respondents’ arguments make clear, resolution of Petitioner’s factual
assertions is simply not required given that Petitioner’s assertions are insufficient to warrant
departure from the abstention called for under In re al-Nashiri II.
4

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implementation of death sentences in the United States due to lengthy appellate review processes
constitutes inhumane and degrading punishment such that extradition is not appropriate. Id. at
439. Petitioner, however, points to no authority in the United States that has adopted Soering’s
holding. Indeed, two Circuits have expressly rejected it. See Chambers v. Bowersox, 157 F.3d
560, 570 (8th Cir. 1998), cert. denied, 527 U.S. 1029 (1999); McKenzie v. Day, 57 F.3d 1461,
1466-68 (9th Cir. 1995), opinion adopted on reh’g en banc, 57 F.3d 1493 (9th Cir. 1995).
Accordingly, the prescriptions of Councilman and In re al-Nashiri II are fully applicable
here and instruct this Court to abstain from further habeas proceedings until completion of
Petitioner’s military commission.
II.

An Exception From Abstention Is Not Warranted Because Petitioner Has Not
Raised A Substantial Question Regarding A Right Not To Be Tried.
Petitioner’s attempt to shoehorn his cruel and unusual punishment, double jeopardy, and

outrageous government conduct claims into an exception to abstention also falls flat.

As

Respondents explained in their opening brief, exceptions to abstention are both “few” and
“narrow,” and must be grounded on a right not be tried at all. See Resp’ts’ Br. at 21-22. Were the
rule otherwise, it would render meaningless the Supreme Court’s holding in Councilman that the
“cost, anxiety, and inconvenience” of having to defend a prosecution is insufficient to justify an
exception to abstention. 420 U.S. at 755; In re al-Nashiri II, 835 F.3d at 128. Accordingly, the
D.C. Circuit has admonished that, absent an express right-not-to-be-tried, any exception to
Councilman abstention requires an “extraordinary circumstance” that presents both a “great and
immediate” injury and renders the coordinate tribunal incapable of fully and fairly adjudicating
the federal issues before it. In re al-Nashiri II, 835 F.3d at 128.
Given these dual requirements, it is unsurprising that only one non-express exception to
abstention has been identified. To come within the exception, often referred to as the status
5

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exception, a defendant must raise a “substantial argument[]” regarding a coordinate tribunal’s
personal jurisdiction to try the defendant. Councilman, 420 U.S. at 758-59. But not all personal
jurisdiction claims fall within the exception. See In re al-Nashiri II, 835 F.3d at 134 (“[W]e cannot
conclude that the status exception covers all non-trivial jurisdictional challenges that a militarycommission defendant might raise.”). The exception is limited to the question of whether the
Constitution delegated to Congress the power to subject a class of persons to trial by a non-Article
III tribunal. See Councilman, 420 U.S. at 758-759 (distinguishing prior cases such as Reid v.
Covert, 354 U.S. 1 (1957), and U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955), barring the trial
by courts-martial of non-service members because Article I did not grant power to authorize the
military to try non-combatant civilians). None of Petitioner’s claims raise a substantial question
regarding Congress’ power to subject him to trial by military commission such that he has a right
not to be tried at all. Petitioner’s claims, therefore, do not and cannot warrant an exception to
abstention. The Court should adhere to the prescriptions of Councilman and In re al-Nashiri II
and hold Petitioner’s habeas petition in abeyance pending completion of his military commission
proceedings.
A.

Petitioner’s Argument Regarding His Status Does Not Warrant an Exception
to Abstention.

Petitioner does not dispute his status as an alien unprivileged enemy belligerent in the
context of this proceeding. 3 Rather, he argues that his status as an alien unprivileged enemy
belligerent is not material to the question of whether his claims fall within the scope of an exception
to abstention given the capital nature of his military commission. Pet’r Opp’n at 19. The mere
fact that Petitioner is facing capital charges with the attendant mandatory review process, however,

3

In July 2007, a Combatant Status Review Tribunal determined Petitioner was detainable as an
“enemy combatant” under the Authorization for Use of Military Force. See Ex. A.
6

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does not change the Court’s abstention analysis. See, e.g., In re al-Nashiri II, 835 F.3d at 128-35
(evaluating whether claims of Guantanamo detainee facing capital charges in a MCA-authorized
military commission satisfied the requirements for an exception to abstention). The MCA confers
jurisdiction to military commissions to try both non-capital and capital offenses. See 10 U.S.C.
§§ 948c, 948d. 4
Petitioner alternatively argues abstention is not appropriate because of his “status as a
person whom the United States has subjected to an ordeal of savage tortures,” and as such, his
claims are “fundamentally similar to the claims raised in cases like Reid and Toth,” where the
status exception to abstention was first explained. Pet’r Opp’n at 20. But both Reid and Toth
involved challenges by United States citizen defendants that turned on their status as civilians not
subject to military prosecution. See Councilman, 420 U.S. at 759. That concept is inapposite here
because petitioner does not dispute his status as an alien unprivileged enemy belligerent or
Congress’s constitutional power to subject such persons to trial by military commission. See Pet’r
Opp’n at 19.
Finally, Petitioner argues that his “status as a person whom the United States has subjected
to an ordeal of savage tortures,” Pet’r Opp’n at 20, constitutes an “extraordinary circumstance[]”
warranting an exception to abstention because “his past treatment . . . is integrally connected” with
his claim that his military commission’s mandatory review procedures for death sentences are
unlawful. Pet’r Opp’n at 21-22. This argument is meritless. Allegations about a defendant’s
“particular vulnerabilities to a trial by a military commission” do not constitute an “extraordinary

4

Section 948c provides that “[a]ny alien unprivileged enemy belligerent is subject to trial by
military commission as set forth in this chapter.” Section 948d provides that “[a] military
commission under this chapter shall have jurisdiction to try persons subject to this chapter for any
offense made punishable by this chapter . . . and may . . . adjudge any punishment not forbidden
by this chapter, including the penalty of death when specifically authorized under this chapter.”
7

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circumstance” warranting an exception to abstention because they “say nothing about the
competence of the military commission itself.” In re al-Nashiri II, 835 F.3d at 129. Nor does
having to face a possible death sentence and, if convicted and sentenced to death, a lengthy
appellate review process implicate an “extraordinary circumstance” warranting an exception from
abstention – even where a defendant alleges past harms. Hennis, 666 F.3d at 279-80; see also
Gregg, 428 U.S. at 187 (affirming constitutionality of the death penalty), 198 (expressing
preference for automatic appellate review procedures for death sentences). Consequently, the
status exception first introduced in Reid and Toth, and subsequently delineated in Councilman and
In re al-Nashiri II, is inapplicable here.
B.

Petitioner’s Cruel and Unusual Punishment Claim Does Not Raise a
Substantial Question Regarding Whether his Military Commission is Ultra
Vires and Thus Lacks Jurisdiction To Try Him In The First Instance.

Petitioner also contends that abstention is not appropriate because his military commission
is not convened in conformity with the MCA and, as a result, lacks personal jurisdiction. Pet’r
Opp’n at 14-15. In particular, he argues that the MCA bars the imposition of a capital sentence
because such a sentence, given his alleged treatment during detention and the risk that he will have
to endure a lengthy, non-waivable appeal process, violates the Act’s prohibition against cruel and
unusual punishment and thus renders his military commission ultra vires. Id. This claim does not
raise a substantial question regarding a right not to be tried by a military commission.
As an initial matter, as explained supra n.4, Petitioner’s military commission is specifically
authorized under the MCA to impose the death penalty in cases such as Petitioner’s. 10 U.S.C.
§ 948d. Thus, there can be no argument that Petitioner’s military commission is as a general matter
“irregularly constituted,” that is, not regularly constituted, and so rendered ultra vires under the
MCA such that it cannot try Petitioner. As explained in Respondents’ opening brief, see, e.g.,

8

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Resp’ts’ Br. at 25, Petitioner provides no basis to argue that his claims cannot be considered before
his duly constituted military commission in the first instance.
As Petitioner notes, In re al-Nashiri II acknowledged the Supreme Court’s dicta in
Hamdan, 548 U.S. at 589 n.20, discussing the possibility that an exception to abstention would
arise in circumstances where a defendant alleges his military commission was not “regularly
constituted” and is thus ultra vires. 835 F.3d at 133-34. But the Court of Appeals did not attempt
to define the parameters of the possible exception or otherwise extend an exception beyond the
confines discussed above, that is, where Congress is not authorized to subject a class of individuals
to trial by military commission. Id. As Respondents noted in their opening brief, Resp’ts’ Br. at
24, the In re al Nashiri II Court simply concluded that an exception to abstention was not warranted
because, among other things, the petitioner did not “argue that the commissions created by the
2009 MCA generally lack jurisdiction over defendants because they are so procedurally deficient
that they are wholly ultra vires.” In re al-Nashiri II, 835 F.3d at 134 (emphasis added).
Taking a cue from the D.C. Circuit’s limited discussion of a possible ultra vires exception,
Petitioner first argues that his cruel and unusual punishment claims demonstrate his military
commission is “wholly ultra vires.” Pet’r Opp’n at 20. But, assuming this is the standard by which
the possible exception is to be evaluated, Petitioner’s argument is untenable in light of the D.C.
Circuit’s finding that the military commission system established by the MCA is adequate to
protect a defendant’s rights. See In re al-Nashiri II, 835 F.3d at 123. Also, given that Petitioner
predicates his claims on allegations regarding his treatment during an earlier phase of detention, 5

5

See, e.g., Pet’r Opp’n at 17 (Petitioner’s claims “rest . . . on the fact that in the wake of the
treatment to which the government subjected him, both a death sentence and the largely nonwaivable review time between the imposition and execution of that sentence would be unlawful.”).
9

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his claims are irreconcilable with the D.C. Circuit’s holding that a defendant’s “particular
vulnerabilities to a trial by a military commission” do not constitute an “extraordinary
circumstance” warranting an exception to abstention because they “say nothing about the
competence of the military commission itself,” id. at 129.
Recognizing this fatal flaw, Petitioner next asserts that In re al-Nashiri II did not hold that
a possible ultra vires exception to abstention is only available where a defendant claims that MCAauthorized military commissions are so procedurally deficient that they generally lack
jurisdiction. 6 Pet’r Opp’n at 20. Although Petitioner is correct that the D.C. Circuit observed that
the “precise contours” of a possible ultra vires exception to abstention “are unclear,” In re alNashiri II, 835 F.3d at 133, the Court’s decision to leave the parameters of the possible exception
undefined does not mean that any allegation that a military commission is ultra vires will fall
within its scope. Indeed, the Court specifically held that the status exception to abstention does
not “cover[] all non-trivial jurisdictional challenges.” Id. at 134. In so doing, it emphasized that
the possible exception is constrained by the dual requirements set forth above. Id. And here,
Petitioner’s cruel and unusual punishment claim does not meet this standard: it does not constitute
an “extraordinary circumstance[]” that “present[s] [both] the threat of ‘great and immediate’ injury
and render” his military commission “incapable of fairly and fully adjudicating the federal issues
before it” such that Petitioner has a right not to be tried. Id. at 128 (quoting Kugler v. Helfant, 421
U.S. 117, 123-24 (1975)).

6

Petitioner concedes that the cases he principally relies on in support of his assertion that his
military commission is ultra vires and that, as a result, he has a right not be tried, do not involve
anything close to the circumstances presented here. See Pet’r Opp’n at 17-18; see also id. at 15
(discussing cases).
10

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First, as Respondents explained in their opening brief, Petitioner’s attempt to lay claim to
rights under the Fifth and Eighth Amendments is inconsistent with Circuit precedent. See Resp’ts’
Br. at 26-27. Petitioner’s argument that the majority in al Bahlul v. United States, 767 F.3d 1 (D.C.
Cir. 2014), held that Guantanamo detainees may invoke rights under the Constitution beyond those
contained in the Suspension Clause, Pet’r Opp’n at 25, blatantly ignores the fact that the majority
in al Bahlul did not opine on the question of whether a Guantanamo detainee may assert rights
under the Fifth or Eighth Amendments. See al Bahlul, 767 F.3d at 18. It is well established that
“[c]onstitutional rights are not defined by inferences from opinions which did not address the
question at issue.” Latif v. Obama, 677 F.3d 1175, 1184 (D.C. Cir. 2011) (quoting Texas v. Cobb,
532 U.S. 162, 169 (2001)). Where the Court of Appeals has addressed the issue, it has determined,
in Rasul v. Meyers, 563 F.3d 527, 530 (D.C. Cir. 2009), and Kiyemba v. Obama, 555 F.3d 1022,
1026 (D.C. Cir. 2009), vacated and remanded, 559 U.S. 131 (2010), reinstated in relevant part,
605 F.3d 1046, 1047-48 (D.C. Cir. 2010), cert. denied, 563 U.S. 954 (2011), that aliens detained
at Guantanamo may not invoke rights under the Fifth and Eighth Amendments in habeas. See
Resp’ts’ Br. at 26-27; see also Ali v. Trump, Civil No. 1:10-cv-01020 (RJL), slip op. at 13-14
(D.D.C. Aug. 10, 2018) (“[D]istrict courts in this Circuit have uniformly refused to recognize due
process claims by Guantanamo Bay detainees.”). And there can be no “great and immediate”
harm, In re al-Nashiri II, 835 F.3d at 128, where there is no cognizable right.
Second, Petitioner cites no authority that suggests that the provisions of the MCA 7 or the
Detainee Treatment Act 8 prohibiting cruel or unusual punishment provide Petitioner with a right
not to be tried. And as Respondents point out in their opening brief, Petitioner also fails to explain

7

See 10 U.S.C. § 949s.

8

See 42 U.S.C. § 2000dd(d).
11

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why his military commission is incapable of adjudicating his statutory claims in the first instance.
See Resp’ts’ Br. at 28. Instead, as discussed above, Petitioner merely repeats his request that this
Court do what no court in the United States has ever done – adopt the holding in Soering v. United
Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989). See Pet’r Opp’n at 25-26. Petitioner’s constitutional
and statutory cruel and unusual punishment claims do not, therefore, provide him with a right not
to be tried. As such, they do not raise a substantial question regarding whether his military
commission is ultra vires.
C.

Petitioner’s Double Jeopardy Claim Does Not Raise a Substantial Question
Regarding a Right Not To Be Tried.

Petitioner contends that his attempt to invoke one of the few express exceptions to
abstention – double jeopardy – is sufficient to render abstention inappropriate because his double
jeopardy claim does not need to be “compelling” to be “colorable.” Pet’r Opp’n at 28-29. Even
under the “lenient” colorable standard, United States v. Andrews, 146 F.3d 933, 937 (D.C. Cir.
1998), however, Petitioner’s allegation that he will be subject to multiple punishments for the same
offense if he is required to, in the wake of his alleged prior treatment, defend against his capital
charges and, if convicted and sentenced to death, endure a mandatory appellate review process,
does not constitute a colorable argument that he has a right not to be tried.
First, assuming Petitioner can lay claim to rights under the Fifth Amendment’s Double
Jeopardy Clause, Petitioner’s argument that he does not need to show that jeopardy previously
attached and was terminated ignores the fact that “[t]he Clause protects only against the imposition
of multiple criminal punishments for the same offense . . . and then only when such occurs in
successive proceedings.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citations omitted); see
also North Carolina v. Pearce, 395 U.S. 711, 713-14 (1969) (applying multiple punishment
component of the Clause to the retrials of two defendants); Sefass v. United States, 420 U.S. 377,
12

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393 (1975) (observing that the “fundamental principle” of the Clause is “that an accused must
suffer jeopardy before he can suffer double jeopardy”). Claims based on allegations regarding
pretrial detention are thus outside the scope of the Clause. See United States v. Warneke, 199 F.3d
906, 908 (7th Cir. 1999) (pretrial detention of criminal defendant pursuant to statute did not trigger
the attachment of jeopardy).
Second, the “constitutional guarantee against multiple punishments for the same offense”
requires nothing more than “fully credit[ing]” a punishment that that has “already [been] exacted”
when “imposing [a] sentence upon a new conviction for the same offense.” Pearce, 395 U.S. at
718-19. As Petitioner notes, Pet’r Opp’n at 30, the Court of Appeals for the Armed Forces has
concluded that the same holds true for the protection against multiple punishments embodied in
the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 844. 9 See United States v.
Rosendahl, 53 M.J. 344, 346-47 (C.A.A.F. 2000) (discussing Pearce, 395 U.S. 711). But
“determining the proper credits” for a prior punishment occurs “[a]fter” a defendant is convicted
and “the sentence is adjudged.” Rosendahl, 53 M.J. at 348; see also Pearce, 395 U.S. at 719
(holding that upon reconviction, a court must subtract the time served pursuant to the first sentence
from “whatever new sentence is imposed”). Rosendahl and Pearce make clear that the remedy for
an alleged violation of the constitutional and statutory protections against multiple punishment
rests in appeal. See Murphy v. Commonwealth of Virginia, 896 F. Supp. 577, 582 (E.D. Va. 1995)
(“If an accused is facing multiple convictions (and, therefore, multiple punishments) in violation
of the Double Jeopardy Clause, he may appeal those convictions to obtain full relief.”).

9

For purposes of this Reply, Respondents assume that the MCA’s Former Jeopardy provision, 10
U.S.C. § 949h, could also be interpreted to include the protection against multiple punishments.
13

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Accordingly, a claim based on the possibility of being punished multiple times for the same offense
does not implicate a right not to be tried. See Resp’ts’ Br. at 29-31.
Finally, as with Petitioner’s other attempts to qualify for an exception to abstention, his
double jeopardy claims are based on the European Court of Human Rights’ decision in Soering v.
United Kingdom. But, as discussed above, Petitioner points to no authority that has applied
Soering’s holding generally, much less in the double jeopardy context. As such, a claim based on
Soering’s holding is not colorable.
D.

Petitioner’s Allegations of Outrageous Government Conduct Do Not Provide
Him With a Right Not to Be Tried.

Once again, Petitioner fails to demonstrate that his claim of outrageous government
conduct (assuming he has a cognizable due process right upon which such a claim would be based)
provides him with a right not to be tried, and thus constitutes an “extraordinary circumstance[]”
warranting an exception from abstention. See Pet’r Opp’n at 26-28. Indeed, Petitioner concedes
that “courts have rarely found the government’s conduct sufficiently egregious to justify a due
process remedy” for alleged misconduct. Id. And he fails to address, let alone, explain, why his
military commission is incapable of fairly and fully adjudicating his claim. See In re al-Nashiri
II, 835 F.3d at 128.
Nevertheless, Petitioner urges this Court to conclude that his outrageous government
conduct claim warrants an exception to abstention. He points to a Ninth Circuit case as proof that
the outrageous government conduct doctrine continues to be viable. See Pet’r Opp’n at 27 (citing
United States v. Black, 733 F.3d 294 (9th Cir. 2013)). Although the case demonstrates that the
doctrine has not been rejected by the Ninth Circuit, it does not support Petitioner’s assertion that
an exception to abstention is warranted here because the Court in that case did not conclude that
the defendant had a right not to be tried based on the alleged government misconduct. Black, 733
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F.3d at 298 (noting that the doctrine involves an “extremely high standard” for a defendant to
meet). Indeed, none of the cases upon which Petitioner relies dismissed an indictment as a remedy
for an alleged due process violation. See United States v. Boone, 437 F.3d 829, 842 (8th Cir.
2006); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974) (remanding case to district court
for factual findings); United States v. Toscanino, 398 F. Supp. 916, 917 (E.D.N.Y. 1975) (denying
motion to dismiss indictment on remand); United States v. Cordero, 668 F.2d 32, 36-37 (1st Cir.
1981) (rejecting claims premised on Toscanino brought by defendant seeking release from custody
based on allegation that he was illegally transferred to the United States prior to trial).
Petitioner’s assertion that the doctrine is applicable to circumstances where the purported
misconduct occurred after the alleged crime(s) is also without support. See Black, 733 F.3d at 302
(observing that outrageous government conduct may occur where government agents “engineer[]
and direct[] a criminal enterprise from start to finish,” “use excessive physical or mental coercion
to convince an individual to commit a crime,” and “generat[e] . . . new crimes merely for the sake
of pressing criminal charges”) (citations omitted); Boone, 437 F.3d at 842 (“[T]he rule that
outrageous government conduct can foreclose criminal charges has been applied by our court
almost exclusively to situations involving entrapment[.]”); see also Rochin v. California, 342 U.S.
165, 172-74 (1952) (holding that police officers’ conduct in procuring evidence against a
defendant “shock[ed] the conscience,” violated due process, and warranted reversal of his
conviction); United States v. Padilla, No. 04-60001, 2007 WL 1079090, at *3 n.6 (S.D. Fla. Apr.
9, 2007) (rejecting defense where alleged misconduct was “perpetrated after the commission of
[defendant’s] alleged crimes” while the defendant was in military custody). Petitioner has thus
failed to demonstrate how his outrageous government conduct claim provides him with a right not
to be tried such that an exception to abstention is warranted.

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III.

Abstention Does Not Violate the Suspension Clause.
Petitioner’s argument that abstaining from further proceedings in this case would violate

the Suspension Clause is foreclosed by In re al-Nashiri II, which held that “a deferment of resort
to the writ until other corrective procedures are shown to be futile is in no sense a suspension of
the writ of habeas corpus.” 835 F.3d at 130 (quoting Gusick v. Schilder, 340 U.S. 128, 132 (1950)).
Petitioner’s attempt to evade this holding is unavailing. For the reasons discussed above, see supra
at 7-8, Petitioner’s allegations regarding his “particular vulnerabilities” to a military commission
convened to try him for capital offenses do not render his military commission ultra vires and,
thus, the MCA’s corrective procedures “futile.”

See In re al-Nashiri II, 835 F.3d at 129

(concluding that a defendant’s “allegations [] about his particular vulnerabilities to a trial by a
military commission at Guantanamo Bay . . . say nothing about the competence of the military
commission itself[.]”); id. at 131 (holding the MCA procedures, including the right to appeal to
the D.C. Circuit if convicted, constitute “substantial ‘other corrective procedures.’”). Accordingly,
holding Petitioner’s habeas petition in abeyance until the completion of his military commission
proceedings would not constitute a suspension of the writ.
IV.

Adjudicating The Claims Currently Before This Court Risks Interference With
Petitioner’s Ongoing Military Commission Proceedings.
As Respondents explained in their opening brief, Resp’ts’ Br. at 40-43, staying this case

during the pendency of Petitioner’s military commission proceedings would avoid the possibility
of proceedings and rulings in this habeas case interfering with Petitioner’s military commission
proceedings. The potential for interference rises in at least four ways. First, and most significantly,
Petitioner’s own motion for a permanent injunction to halt his military commission prosecution,
by itself, establishes the prerequisite potential interference to justify a stay. Second, a ruling by
this Court as to whether Petitioner was part of al-Qaida at the time of his capture could potentially
16

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impact the military commission’s exercise of jurisdiction of Petitioner as an “alien unprivileged
enemy belligerent.” See 10 U.S.C. §§ 948c, 948d; see also Khadr v. Bush, 587 F. Supp. 2d 225,
231 (D.D.C. 2008) (“Khadr II”) (Bates, J.) (noting that abstention was appropriate because the
“question of enemy combatancy can be raised in the military commission proceeding,” and “any
ruling[] by this Court on th[at] claim[] would necessarily affect, and possibly interfere with, the
military commission proceedings”). Third, a decision by this Court on the merits of the habeas
petition, including the issuance of any factual findings supporting such a decision, could interfere
with Petitioner’s military commission prosecution because the Government’s evidence in this case,
as presented in the Factual Return, overlaps substantially with the military commission charges.
See Resp’ts’ Br. at 42 (describing how Petitioner’s alleged actions in relation to the terrorist attacks
of September 11, 2001, are central to both proceedings).
Finally, habeas proceedings may also “produce rulings on the production of discovery
and/or exculpatory information that diverge from those of the military commission[].” Al Odah v.
Bush, 593 F. Supp. 2d 53, 59 (D.D.C. 2009) (Kollar-Kotelly, J.)); see also Councilman, 420 U.S.
at 756-58. To be sure, Petitioner has sought in his military commission disclosure of information
that is substantially similar to the material he is requesting in his Motion for Discovery filed in this
Court. Compare Pet’r Mot. for Discovery (ECF No. 152) (seeking, among other things, documents
pertaining to Petitioner’s pre-Guantanamo detention and interrogation, Petitioner’s statements and
circumstances information, documents pertaining to Abdul Samad Din Mohammed, and the SSCI
Report) with United States v. Khalid Shaykh Mohammad, et al., 10 AE 112 Motion to Compel
Discovery Related to White House and DOJ Consideration of the CIA Rendition, Detention, and

10

To view the docket for Petitioner’s military commission proceedings, open
http://www.mc.mil/CASES/MilitaryCommissions.aspx in a web browser and click the link on that
page labeled 9/11: Khalid Shaikh Mohammad et al. (2).
17

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Interrogation Program; AE 114 Motion to Compel Discovery of Information Related to Buildings
in Which the Accused or a Potential Witness Has Been Confined; AE 190 Motion to Compel
Production of Information Relating to Statements Made by Mr. al-Baluchi or Potential Witnesses
at a Detention Facility; AE 194 Motion to Compel Discovery of Mr. al-Baluchi’s Statements; AE
245 Motion to Compel Information Regarding Abdul Samad din Mohammed; AE 255 Motion to
Compel Discovery Regarding Recordings of Mr. al-Baluchi; AE 286 Motion to Compel SSCI
Report; AE 308 Motion to Compel Discovery Regarding CIA Rendition, Detention, and
Interrogation Program. Consideration of the merits of Petitioner’s discovery motion, therefore,
would potentially result in rulings on the production of information and on other discovery issues
that deviate from and possibly conflict with those of the military commission – the very outcome
the Supreme Court sought to avoid in Councilman. See Al Odah, 593 F. Supp. 2d at 59 (citing
Councilman, 420 U.S. at 756-58).
Contrary to Petitioner’s assertion, Pet’r Opp’n at 31-32, Respondents are not required to
show that interference has occurred. The potential that adjudication of a habeas claim will interfere
is enough, and courts regularly use such conditional language when describing interference. See
Khadr v. Obama, 724 F. Supp. 2d 61, 66 (D.D.C. 2010) (“Khadr III”) (Bates, J.) (“could
interfere”); Khadr II, 587 F. Supp. 2d at 231 (“possibly interfere with”); Al Odah, 593 F. Supp. 2d
at 58-59 (“eliminates the potential,” “may interfere,” and “may also produce rulings”). Indeed,
courts have found that civil proceedings that involve the same facts as an ongoing criminal
prosecution interfere with those criminal proceedings simply because “they churn over the same
evidentiary material.” Afro-Lecon, Inc. v. United States, 820 F.2d 1198, 1204 (Fed. Cir. 1987)
(citation omitted).

18

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Further, Petitioner’s contention that “for six years these two cases have proceeded in
parallel . . . with no ‘interference’ resulting,” Pet’r Opp’n at 31, conveniently ignores the fact that
his habeas petition has effectively been stayed for the last six years given that this Court has not
issued a substantive ruling during that time. This is, no doubt, due in large part to the pendency
of Respondents’ first motion to hold Petitioner’s habeas petition in abeyance. See Resp’ts’
Abeyance Mot. (ECF No. 130) (Sept. 6, 2012). Petitioner’s argument also overlooks the fact that
Petitioner has made no attempt to have this Court adjudicate the merits of his habeas petition in
the decade it has been pending. Instead, Petitioner has filed several motions that, if granted, would
either halt Petitioner’s military commission altogether or permit his habeas counsel to use this
Court to aid in his defense. See, e.g., Mot. for Permanent Injunction (ECF Nos. 154, 200); Mot.
for Discovery (ECF No. 152) (arguing requested discovery necessary for habeas counsel to ensure
Petitioner maintains his ability to “assist his lawyers in . . . his on-going military proceedings”);
Mot. to Modify Protective Order (ECF No. 156) (arguing certain provisions of Amended TS/SCI
Protective Order should be modified to permit habeas counsel “to discuss . . . classified information
pertaining to this case with . . . members of [Petitioner’s] military defense team”).
In Guantanamo cases where the Government has sought abeyance of a habeas petition to
avoid interfering with an ongoing MCA-authorized military commission, it has been granted. See
al-Nashiri v. Obama, 76 F. Supp. 3d 218, 223 (D.D.C. 2014) (Roberts, C.J.), aff’d 835 F.3d 110
(D.C. Cir. 2016), cert. denied, 138 S. Ct. 354 (Mem.) (2017); Al Odah, 593 F. Supp. 2d at 59;
Khadr v. Bush, 587 F. Supp. 2d 225, 238 (D.D.C. 2008) (Bates, J.) (“Khadr II”); see also Khadr
III, 724 F. Supp. 2d at 70. Petitioner has given this Court no reason to depart from these rulings.
Abstention, therefore, is especially appropriate in this instance where Petitioner has asserted

19

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requests that directly implicate ongoing military commission proceedings without bringing this
Court any closer to resolving the merits of his habeas petition.
V.

The Possibility That Petitioner Might Seek Additional Habeas Relief Does Not
Warrant Deviating From The Settled Practice Of Staying Habeas Proceedings During
The Pendency Of A Military Commission.
Petitioner argues that Respondents’ motion to hold his habeas petition in abeyance

“overlook[s] the fact that [he] intends to file a revised version of his motion for relief from unlawful
conditions of his confinement, which he orally withdrew at the March 22, 2017[,] hearing before
this Court.” Pet’r Opp’n at 32. Respondents’ motion does no such thing, as Petitioner did not and
has not conferred with Respondents regarding his intent to renew his conditions of confinement
motion, notwithstanding Local Civil Rule 7(m) which requires him to do so. This argument also
rings particularly hallow given that he withdrew his challenge to his conditions of confinement
more than a year ago, nearly three years after he filed it. Because Petitioner has yet to renew his
conditions of confinement claims, they cannot support denying Respondents’ abeyance motion.
Moreover, holding Petitioner’s habeas case in abeyance until his military commission
proceeding is completed would not deprive him of the right to raise such claims before this Court
during the pendency of the stay, in appropriate circumstances warranting a departure from
abstention. As Judge Bates explained in Khadr II, the Court may stay consideration of a habeas
petition and any claims that “have been, will be or, at the very least, can be raised in the military
commission proceeding and the subsequent appeals process[,]” but nevertheless may lift the stay
under appropriate circumstances for the limited purpose of entertaining claims that do not interfere
with or otherwise fall within the scope of the military commission proceeding. 587 F. Supp. 2d at
230 (observing that “abstention is appropriate only to the extent that this Court’s consideration of
petitioner’s motion would interfere with the military commission proceeding; hence, the scope of

20

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that proceeding is critical to the analysis”); id. at 234 (refusing to abstain as to one of petitioner’s
claims because it could not be raised before his military commission). Similarly, this Court may
hold Petitioner’s habeas case in abeyance and, should Petitioner follow through with his intent to
file a motion challenging the conditions of his confinement, the Court may evaluate whether
adjudicating that motion could potentially interfere with his military commission and, if
appropriate, lift the stay for the limited purpose of considering the underlying merits of the motion.
Simply put, the fact that Petitioner might someday file a particular request for relief from which
this Court may choose not to abstain is not a sufficient reason for this Court to deny Respondents
motion to hold the existing petition in abeyance, given that all of Petitioner’s claims currently
before this Court effectively “have been, will be, or can be raised in the military commission
proceedings,” Khadr II, 587 F. Supp. 2d at 238.
Nor would such a stay deprive Petitioner of access to habeas experts, such as Dr. Xenakis.
As Respondents previously explained to Petitioner’s counsel, requests for expert visits related to
any habeas case have always been evaluated on a case-by-case basis, taking into account all
applicable facts and circumstances, and Respondents will continue to evaluate these requests in
the same manner if the stay is granted. And Petitioner can raise any specific access issue with the
Court, as needed and appropriate, during the pendency of the stay. See In re Guantanamo Bay
Detainee Continued Access to Counsel, 892 F. Supp. 2d 8 (D.D.C. 2012). Thus, an order directing
Respondents to provide access to experts, such as Dr. Xenakis, in “at least substantially the same
extent, and in at least substantially the same fashion, as before the abeyance period[,]” Pet’r Opp’n
at 34, should the Court grant Respondents’ abeyance motion, is unnecessary.
In summary, if Petitioner does file, after conferring with Respondents as required by Local
Civil Rule 7(m), a renewed motion challenging the conditions of his confinement or a motion

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related to his access to experts, this Court can then consider whether adjudicating the claim could
potentially interfere with the military commission. Until then, the mere possibility that Petitioner
may file such motions does not justify denying Respondents’ motion to hold the habeas petition in
abeyance pending resolution of Petitioner’s military commission proceedings.
CONCLUSION
For the foregoing reasons, and those explained in Respondents’ opening brief, the Court
should grant Respondents’ Cross-Motion to Hold Petition in Abeyance Pending Completion of
Military Commission Proceedings.

Dated: August 10, 2018

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
/s/ Kristina A. Wolfe
TERRY M. HENRY
Assistant Branch Director
RONALD J. WILTSIE
KRISTINA A. WOLFE
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: (202) 353-4519
Fax: (202) 616-8470
Email: Kristina.Wolfe@usdoj.gov
Counsel for Respondents

22

 Case Document 208-1 Filed 08/10/18 Page 1 of 2

EXHIBIT A

Case Document 208-1 Filed Page 2 of 2
PUBLIC RELEASE

Department of Defense;
Of?ce for the Administrative Rmi?w
of the Detention of Enemy Combatamts (OAHDEC)
at U.S. Navai Base Guantanamo Bay, Cuba.
1010 Defense Pentagon, Washington, D.C. 20301-1010

 

 

ACTION MEMO

29 June 2007

FOR: Designated Civilian Of?cial (DCO)

 

FROM: Converting Authorit3-3'Combatant Status Review Tribuna?! 6%:Ja7

SUBJECT: FINAL REVIEW OF COMBATANT STATUS TRIBUNAL ICO
AMMAR AL ISN I. 001 BDP (PAKISTAN)

The Combatant Status Review. Iribunal (CSRT) for Detainee IQSN 10018 was completed on
30 March 2007 The Tribunal determined that this detainee meets the criteria for designation
as an Enem3 Combatant

RECOMMENDATION: That the DCC) as the ?nal review authorrtv approve the CSRT
decision by initialing:

Approve the decision of the Combatant Status Review; Trib 7- 
Return the Record of Proceedings to the Tribunal. for further proceedings?
ATTACHMENTS:

TAB A Legal Suf?ciency Review
TAB Tribunal President?s Report of Proceeding

Prepared by: Frank chigart, COnV?-??ing Authority, 

PUBLIC RELEASE