District Court Opinion in Al Odah v. United States

By R. Taj Moore
Tuesday, August 5, 2014, 12:09 PM

The U.S. District Court for the District of Columbia has granted the government’s motion to dismiss Fawzi Khalid Abdullah Fahad Al Odah’s petition for a writ of habeas corpus and declaratory judgment in a 21-page opinion issued on August 3.

Al Odah has been detained at Guantanamo Bay since 2002. He was arrested by Pakistani border guards in Afghanistan and then transferred to U.S. custody. He challenged the basis of his detention in 2002 and, in 2009, the district court for D.C. determined that it was probable that he had been part of the Taliban or Al Qaeda forces operating in Afghanistan, making his detention legal under the AUMF. The D.C. Circuit affirmed that decision the following year. Because of statements President Obama made at the beginning of 2013, declaring that “our war” in Afghanistan would be over by the end of 2014, Al Odah brought the petition at issue here.

Al Odah made two claims: first, that his detention at Guantanamo Bay would become unlawful once U.S. involvement in active hostilities in Afghanistan concludes and, second, that his current detention is illegal because his confinement is now primarily punitive, not preventative. Judge Colleen Kollar-Kotelly dismisses the first claim because she finds that the court lacks jurisdiction, the assertion being sufficiently speculative that the case lacks ripeness. Judge Kollar-Kotelly determines that she lacks subject matter jurisdiction over the case because Al Odah’s claim relied on the presumption that the government “will not release him once it no longer has the authority to detain him under the AUMF.” Because this assertion is dependent upon future events that might not occur, she finds, the claim is not ripe for review. Al Odah could be transferred to Afghan authorities before or as soon as active hostilities end or, though it is not explicitly mentioned in the opinion, there could be some new basis for his detention following the conclusion of active hostilities.

Furthermore, the court finds that Al Odah provided no evidence to support his claim that unlawful detention is inevitable. Indeed, Judge Kollar-Kotelly notes President Obama’s statements asserting that with the war ending, Congress should lift restrictions on detainee transfers and close Guantanamo entirely. She also highlights that at the end of the war in Iraq, thousands of detainees were transferred to Iraqi custody, not held by U.S. authorities. There is simply no way to know whether “government officials will refuse to carry out their apparent legal responsibilities” once active hostilities conclude, she concludes. The court needs a “live controversy” in order for it to assert jurisdiction, a condition she does not find in Al Odah’s case. She thus dismisses this claim without prejudice, presumably because there might be a claim that’s ripe for review at some unknown point in the future.

Judge Kollar-Kotelly rejects the second claim---that his detention had become punitive---because she determines that the government’s detention authority under the AUMF is conditioned on Al Odah's being “part of” Al Qaeda or Taliban forces, not on his direct participation in hostilities or his present threat level. Al Odah argued that the AUMF only authorizes preventative detention, and that because he never participated in active combat and poses no threat of returning to the battlefield, he does not pose a security threat worthy of prevention, thus making his detention unlawful. The court rejects the idea that a detainee held under AUMF authority must have directly participated in hostilities in order to be detained legally, highlighting the line of D.C. Circuit cases making it clear that the US’s detention power depends on an individual's being “part of” Al Qaeda, not actively fighting with it. Because Al Odah was found to be part of Al Qaeda previously, his detention is lawful still.

The court also rejects Al Odah’s claim that his detention had become punitive because he poses no threat of returning to the battlefield. Judge Kollar-Kotelly makes clear that a detainee’s threat level is irrelevant in determining whether detention is legal under the AUMF. The detainee need only have posed a threat at the time of his capture, the court says. The court goes on to note that the AUMF allows detention of enemy combatants for the full duration of hostilities, regardless of how long those hostilities might last. The war in Afghanistan is still ongoing, despite the anticipated withdrawal, so there are no questions about the legitimacy of Al Odah’s detention on those grounds. This second claim Judge Kollar-Kotelly dismisses with prejudice, precluding Al Odah from advancing it again.