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IV: CONCLUSION for the Reasons Set Forth Above, the Court Shall Deny IN RE GUANTANAMO DETAINEE CASES 443 Cite as 355 F.Supp.2d 443 (D.D.C. 2005) IV: CONCLUSION For the reasons set forth above, the In re GUANTANAMO DETAINEE Court shall deny Government Defendants’ CASES Motion to Reconsider. To the extent that Nos. CIV.A. 02–CV–0299CKK, CIV.A. the Court’s Opinion has clarified certain 02–CV–0828CKK, CIV.A. 02–CV– aspects of its September 24, 2004, Opinion 1130CKK, CIV.A. 04–CV–1135ESH, and Order, Government Defendants’ Mo- CIV.A. 04–CV–1136JDB, CIV.A. 04– tion to Clarify is granted. The Court finds CV–1137RMV, CIV.A. 04–CV– Government Defendants’ Motion to Stay 1144RWR, CIV.A. 04–CV–1164RBW, the Court’s September 24, 2004, Opinion CIV.A. 04–CV–1194HHK, CIV.A. 04– and Order ‘‘pending a decision on Govern- CV–1227RWB, CIV.A. 04–CV– ment Defendants’ Motion for Reconsidera- 1254HHK. tion’’ to be moot given the fact that (1) the Court is now issuing a decision of the United States District Court, Motion to Reconsider, and (2) all evidence District of Columbia. indicates that Government Defendants Jan. 31, 2005. have refused to implement the Court’s Background: In eleven cases, petitions findings in the interim. An Order accom- were filed on behalf of detainees held as panies this Memorandum Opinion. ‘‘enemy combatants’’ at the United States Naval Base at Guantanamo Bay, Cuba. ORDER Government filed motion to dismiss or for For the reasons set forth in the accom- judgment as a matter of law. panying Memorandum Opinion, it is, this Holdings: The District Court, Joyce Hens 28th day of January, 2005, hereby Green, J., held that: ORDERED that [176] Government De- (1) detainees had the fundamental Fifth fendants’ Motion for Reconsideration of Amendment right not to be deprived of the Court’s September 24, 2004 Opinion liberty without due process of law; and Order is DENIED; it is further (2) complaints stated a claim for violation ORDERED that to the extent that the of due process based on Combatant Court’s current Opinion clarifies its Sep- Status Review Tribunal’s (CSRT) ex- tember 24, 2004 Opinion and Order, [176] tensive reliance on classified informa- Government Defendants’ Motion, in the Al- tion in its resolution of ‘‘enemy combat- ternative, to Clarify is GRANTED; it is ant’’ status of detainees, the detainees’ further inability to review that information, ORDERED that [177] Government De- and the prohibition of assistance by fendants’ Motion for Stay of the Court’s counsel jointly deprived detainees of September 24, 2004, Opinion and Order sufficient notice of the factual bases for Pending Resolution of its [176] Motion for their detention and denied them a fair Reconsideration is MOOT. opportunity to challenge their incarcer- SO ORDERED. ation; (3) due process required that CSRT suffi- , ciently consider whether the evidence upon which the tribunal relied in mak- ing its ‘‘enemy combatant’’ determina- ized determination arguments, even though he remains a member of the broader class. 444 355 FEDERAL SUPPLEMENT, 2d SERIES tions had been obtained through tor- 4. Constitutional Law O274.3 ture; War and National Emergency O11 (4) complaints stated a claim for violation Complaints in habeas proceedings of due process based on the govern- stated a claim for violation of due process ment’s employment of an overly broad based on Combatant Status Review Tribu- definition of ‘‘enemy combatant’’ sub- nal’s (CSRT) extensive reliance on classi- ject to indefinite detention; and fied information in its resolution of ‘‘enemy (5) Geneva Conventions applied to the Tal- combatant’’ status of aliens detained as iban detainees, but not to members of ‘‘enemy combatants’’ at a United States al Qaeda terrorist organization. naval base in Cuba, the detainees’ inability Motion granted in part and denied in part. to review that information, and the prohi- bition of assistance by counsel jointly de- 1. Constitutional Law O274.3 prived detainees of sufficient notice of the War and National Emergency O11 factual bases for their detention and de- Alien detainees held as ‘‘enemy com- nied them a fair opportunity to challenge batants’’ at a United States naval base in their incarceration. U.S.C.A. Const. Cuba had the fundamental Fifth Amend- Amend. 5; 32 C.F.R. §§ 9.1 et seq. ment right not to be deprived of liberty 5. Constitutional Law O255(2) without due process of law. U.S.C.A. War and National Emergency O11 Const.Amend. 5. With respect to detainees held indefi- 2. Constitutional Law O251.5 nitely at a United States naval base in Specific process due in a particular Cuba, due process required that Combat- circumstance depends upon the context in ant Status Review Tribunal’s (CSRT) suffi- which the right is asserted, and resolution ciently consider whether the evidence upon the issue requires the consideration and which the tribunal relied in making its weighing of three factors: the private in- ‘‘enemy combatant’’ determinations had terest of the person asserting the lack of been obtained through torture. U.S.C.A. due process, the risk of erroneous depri- Const.Amend. 5. vation of that interest through use of exist- ing procedures and the probable value of 6. Constitutional Law O255(2) additional or substitute procedural safe- War and National Emergency O11 guards, and the competing interests of the Complaints in habeas proceedings government, including the financial, ad- stated a claim for violation of due process ministrative, and other burdens that would based on the government’s employment of be incurred were additional safeguards to an overly broad definition of ‘‘enemy com- be provided. U.S.C.A. Const.Amend. 5. batant’’ subject to indefinite detention; 3. Constitutional Law O255(2) term was defined to mean an individual Under due process clause, each indi- who was part of or supporting Taliban or vidual detained by the government on the al Qaeda forces, or associated forces that ground that he is an ‘‘enemy combatant’’ are engaged in hostilities against the must receive notice of the factual basis for United States or its coalition partners, in- his classification, and a fair opportunity to cluding any person who had committed a rebut the Government’s factual assertions belligerent act or had directly supported before a neutral decisionmaker. U.S.C.A. hostilities in aid of enemy armed forces. Const.Amend. 5. U.S.C.A. Const.Amend. 5. IN RE GUANTANAMO DETAINEE CASES 445 Cite as 355 F.Supp.2d 443 (D.D.C. 2005) 7. Treaties O13 Beach, CA, Erwin Chemerinsky, Duke Unless Congress enacts authorizing Law School, Durham, NC, for Petitioner legislation, however, an individual may Salim Gherebi. seek to enforce a treaty provision only if John Ashcroft, Atty. General, Paul D. the treaty expressly or impliedly grants Clement, Acting Solicitor General, Andrew such a right; if a treaty does not create an Warden, Atty., Dept. of Justice, Washing- express right of private enforcement, an ton, DC, for Respondents. implied right might be found by examining the treaty as a whole. MEMORANDUM OPINION DENYING IN PART AND GRANTING IN 8. Treaties O8 PART RESPONDENTS’ MOTION War and National Emergency O11 TO DISMISS OR FOR JUDGMENT Individuals detained as ‘‘enemy com- AS A MATTER OF LAW batants’’ at a United States naval base in Cuba on the ground that they were mem- JOYCE HENS GREEN, District Judge. bers of al Qaeda terrorist organization These eleven coordinated habeas cases were not entitled to the protections of the were filed by detainees held as ‘‘enemy Geneva Conventions since al Qaeda was combatants’’ at the United States Naval not a ‘‘high contracting party’’ to the Con- Base at Guantanamo Bay, Cuba. Presently ventions; however, Geneva Conventions pending is the government’s motion to dis- applied to the Taliban detainees in light of miss or for judgment as a matter of law the fact that Afghanistan was a high con- regarding all claims filed by all petitioners, tracting party to the Conventions. including claims based on the United 9. War and National Emergency O11 States Constitution, treaties, statutes, reg- ulations, the common law, and customary Nothing in Geneva Convention or international law. Counsel filed numerous army regulation authorized the President briefs addressing issues raised in the mo- of the United States to rule by fiat that an tion and argued their positions at a hear- entire group of fighters covered by the ing in early December 2004. Upon consid- Third Geneva Convention fell outside of eration of all filings submitted in these the Convention’s definitions of ‘‘prisoners cases and the arguments made at the hear- of war.’’ ing, and for the reasons stated below, the 10. United States O125(9) Court concludes that the petitioners have Doctrine of sovereign immunity stated valid claims under the Fifth Amend- barred claims brought against government ment to the United States Constitution by individuals detained as ‘‘enemy combat- and that the procedures implemented by ants’’ at a United States naval base in the government to confirm that the peti- Cuba based on the Alien Tort Claims Act; tioners are ‘‘enemy combatants’’ subject to general waiver of sovereign immunity con- indefinite detention violate the petitioners’ tained in the Administrative Procedure Act rights to due process of law. The Court (APA) was inapplicable because of the also holds that at least some of the peti- ‘‘military authority’’ exception. 5 U.S.C.A. tioners have stated valid claims under the § 701(b)(1)(G); 28 U.S.C.A. § 1350. Third Geneva Convention. Finally, the Court holds that the government is enti- tled to the dismissal of the petitioners’ remaining claims. Stephen Yagman, Marion R. Yagman, Because this Memorandum Opinion ref- Yagman & Yagman & Reichmann, Venice erences classified material, it is being is- 446 355 FEDERAL SUPPLEMENT, 2d SERIES sued in two versions.
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