UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KHALED A.F. AL ODAH, et al.,

Petitioners,

v. Civil Action No. 02-828 (CKK) GEORGE W. BUSH, President of the United States, et al.,

Respondents.

IN RE: Misc. No. 08-442 (TFH) GUANTANAMO BAY DETAINEE LITIGATION

MEMORANDUM OPINION (January 6, 2009)

Fouad Mahmoud Al Rabiah (“Al Rabiah”) and Fayiz Mohammed Ahmen Al Kandari

(“Al Kandari”) (collectively, “Petitioners”) are two of the detainees who are currently held by the

United States Government at Guantanamo Bay, Cuba, as unlawful enemy combatants.

Petitioners have filed habeas petitions which are currently pending before this Court. In October

2008, Petitioners were also charged with violations of the laws of war and now face the prospect

of trial by military commissions in accordance with the Military Commissions Act, 10 U.S.C. §

948a - 950w (the “MCA”). Currently pending before the Court is the Government’s Motion to

Dismiss or, in the alternative, to Hold in Abeyance, Petitioners’ habeas petitions pending completion of their military commission proceedings.1

After thoroughly reviewing the Government’s Motion, Petitioner’s Opposition, and the

Government’s Reply, as well as the relevant case law and applicable statutory authority, the

Court finds that a stay of Petitioners’ habeas cases is warranted, but only to the extent that the

charges against Petitioners are ultimately referred to military commissions for further

proceedings. Accordingly, the Court shall GRANT-IN-PART and DENY-IN-PART the

Government’s Motion to hold the petitions in abeyance pending completion of military

commission proceedings, with a stay to commence only if and when the charges against

Petitioners are referred to military commissions, and shall DENY WITHOUT PREJUDICE the

Government’s Motion to Dismiss, for the following reasons.

I. BACKGROUND

A. Statutory Background

In October 2006, Congress enacted the MCA to establish the procedures governing the

use of military commissions for trying alien unlawful enemy combatants engaged in hostilities

against the United States. The procedures governing these military commissions are set forth in

both the MCA and the Rules for Military Commissions. See Rules for Military Commissions

(“R.M.C.”) 101(a) (“[t]hese rules govern the procedures and punishments in all trials by military

commissions of alien unlawful enemy combatants engaged in hostilities against the United States

as defined in [the MCA]”).2

1 There are two other petitioners in the above-captioned case who have not been charged pursuant to the MCA and who are not subject to the Government’s Motion. 2 The Rules for Military Commissions are available on a website hosted by the Department of Defense, http://www.defenselink.mil/news/commissionsmanual.html.

2 The military commission process begins with a “swearing of charges” against a

defendant. R.M.C. 307 (“[a]ny person subject to the Code may swear charges”). The charges are

then referred to the Secretary of Defense or any officer or official of the United States designated

by the Secretary to receive such charges (the “Convening Authority”), who decides whether to

dismiss any or all of the charges or refer any or all of them to a military commission.

(h); R.M.C. 401(a). The Convening Authority must make this determination “in a prompt

manner,” but no deadline for making this determination is specified. R.M.C. 401(b). Assuming

the Convening Authority refers one or more charges to a military commission, the defendant

receives certain speedy trial rights. For example, the defendant must be arraigned within 30 days

after receiving service of the charges, and a military judge must announce the assembly of a

military commission within 120 days. R.M.C. 707(a).

Military commissions under the MCA are composed of at least five military officers, 10

U.S.C. § 948m, and are presided over by a military judge, id. § 948j. In addition to hearing

evidence related to whether the defendant violated the laws of war or other offenses triable by

military commission, id. § 948(a), a military commission may also make an independent

determination as to whether the defendant is an unlawful enemy combatant, defined as “a person

who has engaged in hostilities or who has purposefully and materially supported hostilities

against the United States or its co-belligerents who is not a lawful enemy combatant (including a

person who is part of the Taliban, al Qaeda, or associated forces).” 10 U.S.C. §§ 948a(1)(A)(i);

948d(a).

The MCA affords a defendant three levels of appellate review if convicted. First, in all

instances where the defendant is found guilty by the military commission, the case is reviewed by

3 the Court of Military Commission Review (“CMCR”), comprised of at least three military judges

(or civilians with “comparable qualifications” appointed by the Secretary of Defense). Id. §§

950c(a), 950f. The CMCR may “act only with respect to matters of law.” Id. § 950f(c). A

defendant may then appeal as of right to the United States Court of Appeals for the District of

Columbia Circuit. Id. § 950g. The D.C. Circuit has jurisdiction to review “whether the final

decision [of the military commission] was consistent with the standards and procedures specified

[in the MCA]” and with “the Constitution and the laws of the United States.” Id. § 950g(c).

Finally, a defendant may seek review of the D.C. Circuit’s decision by writ of certiorari to the

United States Supreme Court. Id. § 950g(d).3

B. Factual and Procedural Background

On October 21, 2008, Petitioners were formally charged with having violated the laws of

war under the MCA. Each Petitioner was charged with two offenses: providing material support

for terrorism in violation of 10 U.S.C. § 950v(b)(25), and conspiracy in violation of 10 U.S.C. §

950v(b)(28). As reflected in their charge sheets, Al Rabiah is charged with traveling between

Kuwait and Afghanistan to meet with, and provide funds to, Usama Bin Laden,4 soliciting funds

from individuals in Kuwait for the purpose of giving money to al Qaeda, and managing and

distributing supplies from an al Qaeda supply depot at Tora Bora, Afghanistan. See Gov’t’s

Mot., Ex. A at 3-4 (10/21/08 Al Rabiah Charge Sheet). Al Kandari is charged with visiting the al

3 The Government suggests that there is a fourth level of appellate review because the Convening Authority may review convictions and lower sentences based on his or her “sole discretion and prerogative.” See Gov’t’s Mot. at 4 (citing 10 U.S.C. § 950b); 10 U.S.C. § 950b(c)(1). 4 Although often spelled “Osama” Bin Laden, the charge sheets use this alternative spelling.

4 Farouq training camp in Afghanistan, providing instruction to Al Qaeda members and trainees

present at the camp, serving as an advisor to Usama Bin Laden, and producing recruitment tapes

that encouraged others to join al Qaeda and participate in jihad. Id., Ex. B at 3 (10/21/08 Al

Kandari Charge Sheet). The charges against Al Kandari were subsequently amended on

December 3, 2008, to add two additional counts of providing material support for terrorism and

conspiracy, respectively. See Gov’t’s Reply at 8 n.2 & Ex. A at 1-3 (12/3/08 Al Kandari

Amended Charge Sheet). The amended charges allege that Al Kandari traveled to Tora Bora,

Afghanistan, where he fought with Al Qaeda forces. Id. at 4.

These charge sheets (including the Al Kandari’s amended charge sheet) are currently

under consideration by the Convening Authority. See Gov’t’s Mot. at 5; Gov’t’s Reply at 8 n.2.

The Government does not indicate that the charges have been referred by the Convening

Authority to military commissions, and the Government concedes that there is no deadline by

which the Convening Authority must decide whether to dismiss or approve the charges. See

Gov’t’s Reply at 8 (referencing the “lack of a deadline for the Convening Authority to complete

its review and refer charges to a military commission”).

On November 26, 2008, the Government filed a Motion to Dismiss or, in the alternative,

Hold in Abeyance the Petitioners’ habeas petitions pending completion of the military

commission’s proceedings. Petitioners filed an Opposition to the Government’s Motion on

December 8, 2008, and the Government filed a Reply on December 18, 2008. The Government’s

Motion is thus fully briefed and ripe for decision.

5 II. LEGAL STANDARDS AND DISCUSSION

A. Abstention During Military Commission Proceedings

Courts ordinarily abstain from considering habeas petitions or requests for other equitable

relief prior to the conclusion of a defendant’s criminal proceedings. As the Government’s

motion correctly explains, the United States Supreme Court’s decision Schlesinger v.

Councilman confirmed that such abstention is appropriate even in the context of military

prisoners.

(1975). In that case, Councilman was a serviceman who brought

an action in federal district court seeking an injunction to prevent his court-martial for allegedly

selling, transferring, and possessing marihuana.

. Councilman argued that the court-

martial lacked jurisdiction over his alleged offenses, and that he “[would] suffer great irreparable

damage in that he [might] be deprived of his liberty without due process of law” if the district

court did not enjoin his court-martial proceedings.

(quotation marks omitted). The

district court granted the injunction and the Tenth Circuit Court of Appeals affirmed.

.

The Supreme Court reversed, finding “no injustice in requiring respondent to submit to a

system established by Congress and carefully designed to protect not only military interests but

his legitimate interests as well.”

. The Court held that Congress impliedly

expressed its view that “the military court system generally is adequate to and responsibly will

perform its assigned task,” and that “this congressional judgment must be respected.”

Councilman at 758. The Court justified its holding based on the abstention principle that

“federal courts normally will not entertain habeas petitions by military prisoners unless all

available military remedies have been exhausted.”

.

The present case is not the first or even the second to address so-called “Councilman

6 abstention” in the context of Guantanamo Bay detainees. On November 24, 2008, Judge John D.

Bates issued a stay of a petitioner’s habeas case during the pendency of his military commission

proceedings. See Khadr v. Bush, No. 04-1136,

at *11 - *14

(D.D.C. Nov. 24, 2008). Relying on Councilman, Judge Bates held that courts should respect the

system of military commissions established by Congress and the President of the United States.

Id. at *14 (“[a]lthough Councilman itself acknowledged this comity-based consideration in the

context of a military justice system designed by Congress to try members of the U.S. military, the

consideration is equally, if not more, relevant when Congress designs a military justice system to

try alien unlawful enemy combatants”). Judge Bates also found that the petitioner’s habeas

proceedings threatened to interfere with the military commission’s proceedings. Id. at *13 (“the

question of enemy combatancy can be raised in the military commission proceeding . . .

[c]onsequently, Councilman abstention would seem appropriate with respect to [petitioner’s

habeas petition] because any rulings by this Court . . . would necessarily affect, and possibly

interfere with, the military commission proceeding.”). Accordingly, Judge Bates held that

“abstention is appropriate [] to the extent that this Court’s consideration of petitioner’s motion

would interfere with the military commission proceeding . . . .” Id. at *12.5

On July 18, 2008, Judge James Robertson also addressed Councilman abstention in the

context of a motion for a preliminary injunction filed by a petitioner who sought to stop his

military commission proceedings. See Hamdan v. Gates,

(D.D.C. 2008).

5 Petitioners in this case seek to distinguish Khadr on the basis that it did not involve “habeas petitions challenging executive detention.” Pet’r’s Opp’n at 7. Petitioners are mistaken. The petitioner’s motion in Khadr sought, inter alia, a writ of habeas corpus. See Khadr,

.

7 Denying this motion, Judge Robertson held that Councilman “requires the courts to respect the

balance that Congress has struck in creating a military justice system . . .,” id. at 136, and that the

MCA was worthy of deference because it was “designed . . . by a Congress that . . . act[ed]

according to guidelines laid down by the Supreme Court.” Id. (quoting Hamdan,

(D.D.C. 2004)).

This Court is similarly persuaded that abstention of Petitioners’ habeas cases during the

pendency of their military commission proceedings is warranted. Abstention reflects the

appropriate level of deference for a system enacted by Congress, signed into law by the President,

and designed in accordance with the Supreme Court’s precedents. See Hamdan v. Gates,

(D.D.C. 2008) (quoting New v. Cohen,

(D.C. Cir. 1997))

(“[t]he Supreme court’s decision in Councilman requires federal courts to give ‘due respect to the

autonomous military judicial system created by Congress.’”). Abstention also eliminates the

potential for conflicting findings or rulings that would arise if the Petitioners’ habeas cases and

military commissions proceed simultaneously. Petitioners even concede that conflicting findings

may arise as to whether Petitioners are properly characterized as unlawful enemy combatants.

See Pet’r’s Opp’n at 7 (“[t]o be sure, Petitioners’ alleged status as ‘enemy combatants’ would be

a necessary predicate to any jurisdiction that a future military commission might seek to

exercise”).

The Court is also persuaded that Petitioners are not irreparably harmed by this Court’s

abstention while military commissions proceed with the charges against Petitioners. The

inconvenience of any criminal prosecution, including those associated with the military

commissions, is insufficient, standing alone, to warrant federal court intervention. Cf. Younger v.

8 Harris,

(1971) (holding that an injunction against criminal enforcement, even if

the defendant believes the statute which he is prosecuted is unconstitutional, is inappropriate

absent an unusual circumstance requiring equitable relief). The various speedy trial rights built

into the Rules of Military Commissions also ensure that Petitioners are not blocked ad infinitum

from pursuing habeas relief, see, e.g., R.M.C. 707(a), and Petitioners will have the benefit of the

various procedural safeguards built into the MCA system once the military commission

proceedings have concluded. As Judge Robertson recently explained,

[i]f the Military Commission judge gets it wrong, his error may be corrected by the CMCR. If the CMCR gets it wrong, it may be corrected by the D.C. Circuit. And if the D.C. Circuit gets it wrong, the Supreme Court may grant a writ of certiorari.

Hamdan,

. The Court therefore finds that abstention during the pendency

of military commission proceedings is “‘[i]n the interest of judicial economy and avoid[s]

unnecessary litigation.’” Khadr,

(quoting Al-Anazi v. Bush,

(D.D.C. 2005)).

Although Petitioners raise numerous arguments as to why abstention is inappropriate in

this case, the Court finds none persuasive. For example, Petitioners argue that exhaustion and

comity doctrines are inapplicable in the context of the military commissions because there is no

remedy before the commissions that allow the Petitioners to challenge their detentions and, even

if acquitted, there is no guarantee that acquittal will result in their release. See Pet’r’s Opp’n at 5.

Petitioners seek to distinguish Councilman on the basis that

the plaintiff in Councilman was directly challenging the court-martial proceeding that was the sole basis for his detention. Al Rabiah and Al Kandari, on the other hand, are not in pretrial confinement reviewable by a military court, but instead are held in executive detention as ‘enemy combatants.’

9 Id. at 5-6.

Petitioners are correct that military commissions under the MCA are convened to

consider whether they have violated the laws of war and not whether they should be released

from custody. Nevertheless, the commissions are still entitled to deference because the Court’s

habeas proceedings may interfere with those proceedings. For example, the essential inquiry in

Petitioners’ habeas cases – whether they are properly characterized as unlawful enemy

combatants – is the same inquiry that the commissions may independently determine as part of

their jurisdictional inquiry. See 10 U.S.C. §§ 948a(1)(A)(i); 948d(a). The Court’s proceedings

may also produce rulings on the production of discovery and/or exculpatory information that

diverge from those of the military commissions.6 The decision in Councilman sought to avoid

this type of interference by requiring defendants to exhaust their criminal (or military)

proceedings prior to seeking equitable relief, without regard to the type of equitable relief sought.

See Councilman,

. The Court therefore rejects Petitioners’ argument that the

differences between the relief sought before this Court (their release) and the military

commissions (their non-conviction) distinguishes Councilman or otherwise suggests that this

Court should not defer to the system of military commissions designed by Congress and the

President. See Hamdan,

) (“Councilman involved court-martial

proceedings against a U.S. service member, to be sure, and not a military commission, but its

central rationale is applicable here”).

6 Petitioners argue that “the government’s motion does not address how the ongoing habeas proceedings would interfere with any military commission proceedings . . . .” Pet’r’s Opp’n at 6. That is not so. See Gov’t’s Mot. at 13-16; Gov’t’s Reply at 9-11.

10 Petitioners also argue that Councilman abstention “is not required in a case where a

challenge is made to the jurisdiction of the military court based on the ‘status of the persons as to

whom the military asserted its power.’” Pet’r’s Opp’n at 6 (quoting Councilman, 470 U.S. at

759). Petitioners further argue, by implication, that their cases fall within this exception because

“[a] military commission has no jurisdiction over a person who is not an unlawful enemy

combatant . . . and this Court indisputably has jurisdiction to consider Petitioners’ challenges to

their alleged status as enemy combatants.” Id. The Court is unpersuaded.

Councilman recognized an exception to the abstention doctrine when a petitioner

“raise[s] substantial arguments that a military tribunal lacks personal jurisdiction over [him].”

Hamdan v. Rumsfeld,

, 589 n.20 (2006). A “substantial” question requires “a

petitioner to present a ‘constitutional question [that] turn[s] on the status of the persons as to

whom the military asserted its power.’” Khadr,

(quoting

Councilman,

). The Court agrees with the Government that Petitioners have not

presented a substantial constitutional question about the MCA or the military commissions that

would be convened to try Petitioners. See Gov’t’s Reply at 5 (“whether Congress ha[s] the

power to try civilians via military courts martial . . . has already been settled: the Supreme Court

held that Congress has the authority under the Constitution to authorize the trials by military

commission of enemy combatants accused of law-of-war violations”) (citing Ex parte Quirin,

(1942)). See also Khadr,

(rejecting the

petitioner’s argument that the exception to Councilman abstention applied and holding that

“petitioner’s challenge to the jurisdiction of the military commission does not raise a substantial

constitutional challenge based on status within this narrow exception to Councilman

11 abstention”). To the extent Petitioners are arguing that the commissions have no jurisdiction

over them because they are not properly characterized as unlawful enemy combatants, that

argument may be fully addressed by the military commissions in the first instance, and then

addressed, if necessary, by this Court following the conclusion of the military commission

proceedings.

B. Timing of Abstention in the Context of Military Commission Proceedings

Although Petitioners have failed to persuade this Court that abstention is inappropriate in

this case, the Court is persuaded by Petitioners’ arguments concerning the timing of such

abstention. In particular, Petitioners’ Opposition repeatedly emphasizes that the Convening

Authority has not yet referred any of the sworn charges against Petitioners to a military

commission, and therefore, a military commission may never be convened. Pet’r’s Opp’n at 2-3.

Petitioners argue that, “[t]o dismiss or stay their habeas petitions based on speculation about

what might happen next would be inappropriate and inconsistent with” the Supreme Court’s

ruling in Boumediene v. Bush,

(2008). Id. at 4. In response, the Government

argues that “[t]he lack of a deadline for the Convening Authority to complete its review and refer

charges to a military commission . . . does not militate against abstention. For one thing . . .

moving forward in habeas during the pendency of sworn charges represents the potential for

interference with the pending military commission proceedings.” Gov’t’s Reply at 8. The Court

agrees with Petitioners.7

As described above, a Convening Authority may dismiss charges that have been sworn

7 The Court notes that Petitioners’ Opposition casts this argument in the context of whether or not a stay is appropriate, but the Court finds that it is more appropriately directed at when, not if, a stay should be entered.

12 against a defendant or may refer them to a military commission for further proceedings.

(h); R.M.C. 401(a). There is no deadline for the Convening Authority to make this

determination, R.M.C. 401(b), and without the Convening Authority’s referral, and military

commission is not convened. The Government’s Motion does not indicate that the Convening

Authority has referred the charges against Petitioners to a military commission in this case.

The Court finds that it cannot interfere with the findings or rulings of a military

commission that does not, and may never, exist. The Court also finds that it owes no deference

to a system that may never be implicated by the charges against Petitioners. Cf. Khadr,

(entering stay after charges had been referred to a commission);

Hamdan,

(denying motion for injunction after charges had been referred

to a commission). Entry of an immediate stay under these circumstances (for reasons that may

never materialize) is inconsistent with the Supreme Court’s admonition that “[t]he detainees in

these cases are entitled to a prompt habeas corpus hearing.” Boumedine,

.

Accordingly, although the Court shall enter a stay of petitioner’s habeas cases, the stay shall not

commence unless and until the Convening Authority refers the charges sworn against Petitioners

to military commissions. Unless and until such charges are referred by the Convening Authority,

the parties must continue to proceed fully with Petitioners’ habeas cases.

III. CONCLUSION

For the reasons stated above, the Court shall GRANT-IN-PART and DENY-IN-PART

the Government’s Motion to hold the petitions in abeyance pending completion of military

commission proceedings, with a stay becoming effective only upon the referral of charges against

Petitioners to military commissions, and shall DENY WITHOUT PREJUDICE the

13 Government’s Motion to Dismiss. If and when the charges against Petitioners are referred to

military commissions, the Government shall file a notice with the Court and shall file status

reports every 60 days thereafter. Unless and until the charges against Petitioners are referred to

military commissions, the parties must proceed fully with Petitioners’ habeas cases. An

appropriate Order accompanies this Memorandum Opinion.

Date: January 6, 2009

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

14