UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHAWALI KAHN,

Petitioner, v. Civil Action No. 08-1101 (JDB) BARACK H. OBAMA, et al.,

Respondents.

MEMORANDUM OPINION

Petitioner Shawali Kahn was in U.S. custody from November 2002 through December

2014. For most of that time, he was detained at the U.S. Naval Base at Guantánamo Bay, Cuba.

Since 2008, Kahn and the United States have been engaged in lengthy habeas corpus proceedings,

through which Kahn has attempted to challenge the legality of his detention. In December 2014,

the United States relinquished custody of Kahn and transferred him to the control of the

government of the Islamic Republic of Afghanistan. Because Kahn is no longer in U.S. custody,

the United States now moves to dismiss Kahn’s petition for habeas corpus as moot. Kahn opposes

that motion, contending that he is still subject to significant collateral consequences due to his

former detention at Guantánamo Bay, and thus that this Court retains jurisdiction to consider the

merits of his petition. However, following the D.C. Circuit’s opinion in Gul v. Obama,

(D.C. Cir. 2011), this Court concludes that the collateral consequences Kahn identifies are not

a sufficient injury to confer continuing jurisdiction on this Court. Respondents’ motion will

therefore be granted.

BACKGROUND

1 Kahn is a citizen of Afghanistan who was captured in 2002. Kahn v. Obama,

(D.D.C. 2010). He was detained at the U.S. Naval Base at Guantánamo Bay from 2003

through December 2014. Id.; Not. of Transfer [ECF No. 282]. In 2008 he filed a petition for

habeas corpus, arguing that the 2001 Authorization for Use of Military Force (AUMF),

Stat. 224 (2001), did not authorize his detention. See Kahn’s Pet. [ECF No. 1]; Kahn,

. After two years of discovery and briefing, and a three-day evidentiary

hearing, this Court determined that Kahn’s detention was lawful under the AUMF because he more

likely than not was a “part of” Hezb-i-Islami Gulbuddin, an “associated force” of the Taliban and

al-Qaeda. Kahn,

, 17–18. The D.C. Circuit affirmed. See Kahn v. Obama,

(D.C. Cir. 2011). Kahn then filed for post-judgment relief under Federal Rule of Civil

Procedure 60(b) in light of new evidence that he believed demonstrated that he was not “part of”

Hezb-i-Islami Gulbuddin. See Notice of Pet.’s Mot. for Post-Judgment Relief [ECF No. 248].

This Court denied his motion. See Kahn v. Obama, No. Civ. A. 08-1101,

, at

*17–18 (D.D.C. Sept. 2, 2014); see also

at *3–5 (further describing procedural background).

Kahn then filed a renewed motion to reconsider in October 2014 after the government

turned over additional materials to Kahn’s counsel. See Notice of Pet.’s Renewed Mot. for Post-

Judgment Relief [ECF No. 276]. Following Kahn’s transfer from U.S. custody in December 2014,

that motion was stayed to allow Kahn and his counsel time to confer, and then held in abeyance

after the government filed this motion to dismiss in August 2015. See Respondents’ Mot. to

Dismiss [ECF No. 295].

LEGAL STANDARDS

Article III of the Constitution limits the federal courts to resolving actual “Cases” and

“Controversies,” rather than rendering advisory opinions. See Lexmark Int’l, Inc. v. Static Control

2 Components, Inc.,

(2014) (quoting U.S. Const. art. III, § 2). This

requirement applies “at all stages of review, not merely at the time the complaint is filed.”

Arizonans for Official English v. Arizona,

(1997) (internal quotation mark

omitted). A litigant petitioning for a writ of habeas corpus must be “in custody.” See

(a), (c); Rasul v. Bush,

(2004) (holding § 2241 applies to persons held at

Guantánamo Bay). When a petitioner is no longer in custody, he “must demonstrate that he was

in custody at the time he filed the petition and that his subsequent release has not rendered the

petition moot, i.e., that he continues to present a case or controversy under Article III, § 2 of the

Constitution.” Qassim v. Bush,

(D.C. Cir. 2006) (internal quotation marks

omitted) (quoting Zalawadia v. Ashcroft,

, 297 (5th Cir. 2004)). In the context of

habeas review of a domestic criminal conviction, a noncustodial petitioner may defeat mootness

by demonstrating some “collateral consequence of the conviction” that is a “concrete and

continuing injury other than the now-ended incarceration.” Spencer v. Kemna,

(1998) (internal quotation marks omitted); see

(explaining that the doctrine originally

required a petitioner to show “concrete disadvantages or disabilities that had in fact occurred, that

were imminently threatened, or that were imposed as a matter of law”); see also United States v.

Juvenile Male,

(2011) (discussing mootness doctrine).

In Gul v. Obama,

(D.C. Cir. 2011), the D.C. Circuit considered when collateral

consequences alleged by former Guantánamo detainees are sufficient to defeat mootness. See also

Maqaleh v. Hagel,

, 321–23 (D.C. Cir. 2013) (applying Gul). In Gul, the petitioners

alleged four collateral consequences that resulted from their prior detention and designation as

enemy combatants: (i) their countries of residence (Afghanistan and Sudan) imposed travel

restrictions; (ii) the United States prohibited them from entering; (iii) the United States could

3 subject them to re-arrest, capture, detention, or extrajudicial killing under the law of war; and (iv)

they suffer reputational harm. Gul,

. The court found none of those were sufficient

to defeat mootness.

The court explained that there is no presumption of collateral consequences for three

prudential reasons that the Supreme Court had identified in Spencer. First, facts sufficient to

support standing “must affirmatively appear in the record” rather than be inferred.

(internal quotation mark omitted) (quoting Spencer, 523 U.S. at 10–11). Second, relying on a

presumption is inappropriate in the standing context, because standing serves not as a check on

litigants, but instead as a “means of defining the role assigned to the judiciary in a tripartite

allocation of power.”

(internal quotation mark omitted) (quoting Spencer,

).

This is especially true when applying a presumption of collateral consequences “could infringe

upon the domain of the branches of government responsible” for foreign relations.

And third,

because the release of Guantánamo detainees is a relatively recent phenomenon, the courts have

little information regarding whether such petitioners “routinely” suffer collateral consequences.

The court then concluded that the harms alleged by petitioners were too speculative or were

not redressable by a court, and thus could not “sustain the exercise of federal jurisdiction.”

. It first explained that the travel restrictions imposed on the petitioners were not caused by a

party before the court and were “therefore beyond the power of the court to redress.”

It

emphasized that this is especially true where travel restrictions are imposed as an “exercise of

broad and legitimate discretion” by a foreign sovereign, which a court “cannot presume either to

control or to predict.”

(internal quotation marks omitted) (quoting Lujan v. Defenders of

Wildlife,

(1992)). The court then explained that the United States’ restriction

4 on the petitioner’s ability to enter this country is both remote—the petitioners had not alleged that

they wished or planned to travel to the United States—and also not redressable. A decision

granting the requested petition would “mean only that the Government has not proven the [former]

detainee more likely than not ‘materially support[ed]’ or was ‘part of’ a force associated with al

Qaeda or the Taliban.” Id. at 19 (second alteration original) (quoting AUMF § 2(a), reprinted at

note). It would not remove the statutory and other legal barriers to those

petitioners’ entry into the United States—starting with the federal statutory requirement that “any

individual who was a detainee” at Guantánamo Bay be added to the No Fly List.

(internal

quotation mark omitted) (quoting

(j)(2)(C)(v)). Next, the court explained that

the alleged collateral consequence of former detainees being subject to further harm from the

United States because they are designated “enemy combatants” rather than “civilians” was too

speculative, because the petitioners “ha[d] no basis whatsoever for believing the [U.S.]

Government might pursue them” again.

. Finally, the court explained that while the

petitioners might suffer real reputational harm, that harm is not “susceptible to judicial correction.”

(internal quotation mark omitted) (quoting McBryde v. Comm. to Rev. Circuit Council

Conduct,

(D.C. Cir. 2001)).

ANALYSIS

The parties agree, as they must, that Gul controls the analysis here. Kahn’s circumstances

and allegations are not materially distinguishable from those of the Gul petitioners. As in Gul,

Kahn does not have the benefit of any presumption of collateral consequences. See id. at 17. There

may be more publically available information today regarding the lasting effects of incarceration

at Guantánamo Bay than was the case when Gul was decided in 2011. See, e.g., Charlie Savage,

After Yemini’s 13 Years in Guantánamo, Freedom for the Soul Takes Longer, N.Y. Times (Jul.

5 29, 2016) 1; Matt Apuzo, et al., How U.S. Torture Left a Legacy of Damaged Minds, N.Y. Times

(Oct. 9, 2016) 2. If relevant at all, however, this only goes to the third element of the D.C. Circuit’s

analysis of when a presumption of collateral consequences applies; even if it were sufficient to

lead to a different conclusion on that element, the first two elements of the D.C. Circuit’s analysis

remain unchanged.

The specific collateral consequences that Kahn alleges are also similar to those in Gul.

And like in Gul, they are too speculative, or not redressable by this Court, to form the basis for

this court’s jurisdiction. Kahn identifies three collateral consequences that he believes are

sufficient to defeat mootness: (i) that his designation as part of a terrorist group makes it more

difficult to regain the deeds to his family’s fruit orchards and land, which were taken from his

family when he was captured, Pet.’s Opp. to Mot. to Dismiss [ECF No. 299-1] at 2; (ii) that his

continued designation as part of a terrorist group makes it more likely that he will harmed by the

United States, as exemplified by the fact that multiple news outlets mistakenly identified a photo

of him as a photo of an alleged terrorist who was killed in a U.S. airstrike, id. at 2–4; and (iii)

restrictions that the Afghan government has placed on his ability to obtain a passport and therefore

to travel, id. at 4. The Court will take each of these in turn.

First, Kahn asserts that granting his habeas petition would help him regain the deeds to his

land that was seized by Afghan forces. See Pet.’s Opp. at 2. He states that deeds to his family’s

land were taken when he was captured by Afghan forces, presumably in 2002. Id. Kahn states

that he “has petitioned the Afghan government to return the deeds for his land” and “that if this

Court were to clear him and reverse its finding that he is connected to a terrorist group, he would

be able to persuade the Afghan government to provide the deeds.” Id. This harm is concrete,

1 Available at http://www.nytimes.com/2016/07/30/world/europe/guantanamo-yemen-estonia-qader.html. 2 Available at http://www.nytimes.com/2016/10/09/world/cia-torture-guantanamo-bay.html.

6 rather than speculative. But even if the Court assumes that Kahn’s characterization of the Afghan

government’s actions is accurate, Kahn’s harm is caused by a party not before the court—namely,

the government of Afghanistan. See Gul,

. If the Afghan government were to

impose this consequence “as a matter of law” due to this Court’s prior finding that Kahn was a

part of Hezb-i-Islami Gulbuddin, then this injury might be sufficiently redressable to defeat

mootness. See Spencer, 523 U.S. at 7–8 (describing original version of collateral consequences

doctrine which required “concrete disadvantages . . . that were imposed as a matter of law”). But

Kahn does not make that claim. To the contrary, by stating that “he would be able to persuade the

Afghan government to provide the deeds,” Pet.’s Opp. at 2, he implies that it is a matter of the

Afghan government’s discretion—and thus entirely outside of this Court’s power to remedy. See

Gul,

.

Second, Kahn asserts that his “terrorist designation has continued to expose him to real

dangers following his release.” Pet.’s Opp. at 2. He does not fully explain what dangers he is

referring to, but as an example he notes that in February 2015 several prominent news outlets,

including the New York Times and CNN, ran his picture and identified him as Mullah Abdul Rauf

Khadim, a recruiter for the Islamic State in Afghanistan, who was killed in a U.S. airstrike. See

at 2–3 (citing, inter alia, Taimoor Shah & Joseph Goldstein, The Afghan Militant in the Photo?

The Wrong Man, and He’s Not Happy, N.Y. Times (Feb. 16, 2015) 3). Kahn states that the photo

was supplied to these news organizations by the Afghan National Directorate of Security, and that

the error “was made possible because Kahn is still categorized as a person with links to terror

groups.” Id. at 4. He also states that his “life was put in serious jeopardy by the publication of his

photo as the terrorist targeted in an airstrike.” Id. It is unclear what harm Kahn believes stems

3 Available at http://www.nytimes.com/2015/02/17/world/asia/mullah-abdul-rauf-khadim-shawali-khan-photo.html.

7 from these mistaken articles identifying him as a deceased terrorist. He might believe that U.S.,

Afghan, or other government forces or private individuals may now mistakenly believe that he is

Khadim (the deceased terrorist), and therefore try to harm him after seeing him and believing that

Khadim was not in fact killed in an airstrike. Alternatively, he might believe that his prior

detention at Guantánamo Bay means that in the future he is likely to again be mistakenly identified

as a terrorist. But these harms are too speculative to support jurisdiction. See Gul, 653 F.3d at 20.

As was also true in Gul, there is no evidence that the United States, or any other government or

individual, mistakenly believes that Kahn is Khadim, much less that any entity is targeting him for

that reason. See id. Moreover, Kahn presents no information as to why being once mistaken for

Khadim means he is more likely to be mistaken for a different alleged terrorist in the future.

Instead, Kahn’s theory of harm might be that his reputation has suffered from being

mistakenly identified as Khadim. Even if the Court assumes that these instances of mistaken

identity were caused by Kahn’s detention at Guantánamo Bay, any reputational harm that flows

from that is not “susceptible to judicial correction.” Id. at 20.

Third, Kahn asserts that he “cannot obtain a passport” from the Afghan government “as

long as there is an official court finding that he is connected to terrorist groups.” Pet.’s Opp. at 4.

In particular, he states that he sustained hearing loss as a result of “loud blaring music” used

“during interrogations, mostly at CIA facilities before [he] was sent to Guantanamo.” Id.

According to Kahn, “[t]he Afghan government has told [him] it will arrange treatment” at a facility

in India. Id. However, he cannot travel to India without a passport. Assuming that Kahn’s

statements are accurate, the Court is sympathetic to the pickle in which Kahn seemingly finds

himself: he is unable to receive medical treatment for injuries allegedly sustained while in U.S.

custody because of his history of being held in U.S. custody. However, this injury is not

8 redressable by a federal court. Gul,

. As explained in Gul, travel restrictions

imposed by a foreign government are not only not caused by a party before the court and “therefore

beyond the power of the court to redress,” but also are part of the “broad and legitimate discretion”

of a foreign sovereign which a court “cannot presume either to control or to predict.”

(internal

quotation mark omitted).

Finally, Kahn raises an alternative argument. He asserts that the government intentionally

withheld exculpatory evidence until September 2014, just before releasing him from custody, so

as to thwart Kahn’s and the Court’s ability to properly adjudicate the merits of his petition. He

argues that this is a sufficient legal ground to defeat mootness, and that to conclude otherwise

would incentivize the government to improperly delay releasing exculpatory evidence in future

cases. Pet. Opp. at 5. However, Kahn does not cite any case law that supports his position that

even an intentional and improper delay provides lawful grounds for this Court to retain jurisdiction.

While that exact question has not been decided by the Supreme Court in the context of

, which pertains to Guantánamo Bay detainees, it has been decided in the context of habeas

corpus review of a state court conviction under

. In Spencer, the Supreme Court

rejected a similar argument, explaining that while the “petitioner argues that, even if his case is

moot, that fact should be ignored because it was caused by the dilatory tactics of the state attorney

general’s office,” that is not legally relevant: “mootness, however it may have come about, simply

deprives us of our power to act[.]” Spencer,

; see also Rimi v. Obama,

(D.D.C. 2014), aff’d,

(D.C. Cir. 2015) (nonprecedential) (same, in the

§ 2241 context). But the Court need not decide today whether a delay in disclosing exculpatory

evidence could ever defeat mootness. Here, it is sufficient to note that the government appears to

have made a good faith effort to keep the Court and Kahn’s counsel informed about new evidence

9 as it became available. See Kahn,

, at *20 n.14. Thus, even if the Court were

to assume that an intentional delay could defeat mootness in some circumstances, it certainly does

not do so here.

CONCLUSION

For these reasons, respondents’ motion to dismiss will be granted. Petitioner’s renewed

motion for post-judgment relief will be denied. A separate order has been issued on this date.

/s/ JOHN D. BATES United States District Judge Dated: October 25, 2016

10