Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA. v. : 05-cv-1244 (CKK)

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1 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 1 of 13 TARIQ MAHMOUD ALSAWAM, : UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Petitioner, : v. : 05-cv-1244 (CKK) BARACK OBAMA, et al., : Respondents. : EMERGENCY MOTION FOR INTERIM RELIEF AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 1 Petitioner Tarek Mahmoud El Sawah respectfully moves this Honorable Court to issue the attached proposed order directing the government to release him and return him to his native country of Egypt, pending a hearing before the Periodic Review Board or the resolution of his 2 habeas petition. Due to the overwhelming evidence that continued law of war detention is not necessary, there is a substantial likelihood that Mr. El Sawah will succeed before both the Periodic Review Board and at the merits hearing before this Court. Absent interim relief, Mr. El Sawah will continue to suffer the irreparable harm of continued unwarranted detention. Therefore, Mr. El Sawah requests interim relief of release pending the resolution of these matters. 1 This matter is captioned Tariq Mahmoud Alsawam due to a clerical error that occurred when Mr. El Sawah s pro se habeas petition was docketed. 2 As required by Local Civil Rule 7(m), undersigned counsel contacted counsel for the Respondents before filing this motion, who represented that the Respondents will oppose this motion.

2 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 2 of 13 In support of this motion, undersigned counsel submits the following. In addition, counsel has submitted, via the Court Security Officer and under seal, a supplement containing classified and protected information. Procedural and Factual Background In late 2001, members of the Northern Alliance in Afghanistan arrested Mr. El Sawah and turned him over to the custody of the United States. The U.S. military held him for a period of time in Afghanistan and then transferred him to the U.S. Naval Station in Guantanamo Bay, Cuba. On June 22, 2005, Mr. El Sawah filed a petition for writ of habeas corpus in this matter. On November 18, 2008, the government filed Respondents Statement of Legal Justification for Detention, asserting that Mr. El Sawah is detained pursuant to the President s power to detain enemy combatants under the Authorization for Use of Military Force (herein after AUMF ), Pub. L. No , 115 Stat. 224 (2001). On October 20, 2008, the government filed a Classified Factual Return, and on December 12, 2008, the government filed an unclassified version of the factual return. On July 30, 2010, Mr. El Sawah filed a Traverse, denying the government s allegations. On December 16, 2008, the Department of Defense preferred charges against Mr. El Sawah. Although the charges were pending for more than three years, the government did not pursue the charges or refer them to a military commission. On March 1, 2012, the charges were dismissed. See Attachment A (Order of Convening Authority for Military Commissions). Although the charges were dismissed without prejudice, the Office of Military Commissions Prosecutions does not intend to pursue charges against Mr. El Sawah. See Attachment B (Letter 2

3 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 3 of 13 from Convening Authority for Military Commissions). Thus, Mr. El Sawah is not being held for the purpose of prosecution. The AUMF authorizes detention for the purpose of preventing a detainee from serving the enemy. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). On March 7, 2011, the President issued an Executive Order, directing that the Secretary of Defense shall coordinate a process of periodic review of continued law of war detention for Guantanamo Bay detainees. Exec. Order No , 76 Fed. Reg. 13,277 (Mar. 7, 2011) (attached hereto as Attachment J). The Order directs that [c]ontinued law of war detention is warranted... if it is necessary to protect against a significant threat to the security of the United States. Id. at 13,277. The Order provides that [f]or each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order. Id. The Deputy Secretary of Defense, however, did not issue guidelines implementing the Executive Order until May 9, The guidelines establish a Periodic Review Board and provide for a process of review to begin 60 days from the issuance of the guidelines. Despite this requirement, to date, no detainee s case has been reviewed and no date has been set for the review process to begin. Mr. El Sawah is not held for the purpose of preventing him from returning to the battlefield or serving the enemy. His continued detention is not necessary to protect against any threat to the security of the United States. As numerous current and former, high-ranking U.S. military officials have certified, it is highly unlikely that Mr. El Sawah would establish ties with al-qa ida, the Taliban, or other associated forces if released. See Attachment C (Letter from Major General Jay W. Hood), Attachment D (Letter from Rear Admiral D. M. Thomas, Jr.), Attachment E (Letter from Vice Admiral T. H. Copeman), Attachment F (Letter from 3

4 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 4 of 13 Intelligence Officer). In fact, Mr. El Sawah could not join enemy forces. See Supplemental Classified and Protected Information in Support of Motion for Interim Relief. Throughout his nearly eleven years of detention, Mr. El Sawah has been compliant with the detaining authorities and has affirmatively demonstrated to the satisfaction of every individual who has had direct interaction with him that he is not a threat to the United States and should be released. United States Army (Retired) Major General Jay W. Hood was the Commander of the Joint Task Force in Guantanamo Bay from March 2004 to March See Attachment C. During this time period, he became very familiar with Mr. El Sawah through personal interactions and observations and through briefings. Id. It is his opinion that: (1) there is little to no chance that [Mr. El Sawah] would return to any violent Islamic organization; (2) Mr. El Sawah poses no significant threat to the security of the United States, our friends or allies; and (3) Mr. El Sawah s continued law of war detention by the United States Government is no longer necessary. Id. United States Navy Rear Admiral D. M. Thomas, Jr., who was the Commander of the Joint Task Force at Guantanamo Bay from May 2008 to June 2009 and is the current Commander of the Naval Surface Force Atlantic, similarly is thoroughly familiar with Mr. El Sawah and is of the opinion that he no longer poses a significant threat to the security of the United States and his continued law of war detention is not necessary. See Attachment D. Rear Admiral Thomas, like Major General Hood, strongly encourages Mr. El Sawah s release. Id. United States Navy Vice Admiral T. H. Copeman, the Commander at Guantanamo from June 2009 to June 2010 and current Commander of the Naval Surface Force, Pacific Fleet, shares the opinion that Mr. El Sawah s detention is unnecessary and also has submitted a letter in 4

5 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 5 of 13 support of his release. See Attachment E. The opinions of these previous Guantanamo Commanders will be submitted to the Periodic Review Board and to the Court at the merits hearing in this matter, and there will be no contrary opinion from any military official who has personally interacted with Mr. El Sawah and is familiar with his case. In fact, the military officer who spoke to Mr. El Sawah for several hours every week for eighteen months between 2002 and 2004 and knows more about Mr. El Sawah than any other U.S. government official, strongly encourages Mr. El Sawah s release. See Attachment F. This former intelligence officer has submitted a letter directed to the Periodic Review Board, affirming that Mr. El Sawah is a good and decent man who should be released. Id. The officer notes that he is familiar with everything about [Mr. El Sawah s] background, the circumstances of his capture and detention, and his nature as a human being and states that Mr. El Sawah had a very different mindset from the radical Islamists who formed the vast majority of the detainee population, and it was clear to [the officer] that [Mr. El Sawah] had no desire to harm United States personnel. Id. Again, this view of Mr. El Sawah will be presented to the Periodic Review Board and at the merits hearing and will not be contradicted. In addition to having the support of military officials, the current state of Mr. El Sawah s health demonstrates that Mr. El Sawah would not be a danger to the United States if released. See Attachment G (Letter from Dr. Sondra Crosby). Mr. El Sawah now weighs over 420 pounds and has multiple serious -- life threatening -- medical conditions. Id. His health has so deteriorated over the last ten years that he has trouble performing even the most basic daily tasks. Id. 5

6 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 6 of 13 Finally, in addition to there being no purpose for his detention, Mr. El Sawah s home country not only is willing to accept his return, but has affirmatively requested his return. See Attachment H (Letter from Minister of Foreign Affairs, The Arab Republic of Egypt). On July 26, 2012, Mohamed Amr, the Minister of Foreign Affairs of Egypt sent a letter to Secretary of State Hillary Rodham Clinton, requesting the release and return of Mr. El Sawah to Egypt. Id. Argument When reviewing a request for interim relief, the Court must consider four factors: (1) the moving party s likelihood of success on the merits; (2) irreparable injury to the moving party if an injunction is denied; (3) substantial injury to the opposing party if an injunction is granted; and (4) the public interest. Kiyemba v. Obama, 561 F.3d 509, 513 (D.C. Cir. 2009) (finding issue of potential transfer of Guantanamo detainees a proper subject for interim habeas relief, but rejecting request on merits). Here, each of these factors weighs in favor of granting Mr. El Sawah the interim relief of release pending a final hearing before the Periodic Review Board or this Court. I. SUBSTANTIAL LIKELIHOOD OF SUCCESS. A. Periodic Review Board. The President has directed the Department of Defense to establish a review process for detainees. See Exec. Order No In response, the Department of Defense has established the Periodic Review Board and guidelines for determining whether or not continued detention is necessary for each detainee. The Executive Order directs that [c]ontinued law of war detention is warranted... if it is necessary to protect against a significant threat to the security of the United States, id. at 13,277, and the guidelines provide a process for making this determination. 6

7 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 7 of 13 When making this determination, the Periodic Review Board may consider numerous factors, including: (1) The detainee s involvement in terrorist activities; (2) The detainee s conduct when acting as part of, or substantially supporting, Taliban or al-qa ida forces or associated forces that are engaged in hostilities against the United States or its coalition partners; (3) The detainee s knowledge, training and skills used for terrorist purposes; (4) The nature and extent of the detainee s ties with individual terrorists, terrorist organizations, terrorist support networks, or other extremists; (5) Information pertaining to the likelihood that the detainee intends to or is likely to engage in terrorist activities upon his transfer or release; (6) Information pertaining to the likelihood that the detainee will reestablish ties with al-qa ida, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, and information pertaining to whether the group the detainee was part of at the time of capture is now defunct; (7) The potential destination country for the detainee, including family support within that country; (8) The likelihood the detainee may be subject to trial by military commission, or any other law enforcement interest in the detainee; (9) The detainee s conduct in custody, including behavior, habits, traits, rehabilitation efforts, and whether the detainee was considered a danger to other detainees or other individuals; (10) The detainee s physical and psychological condition; and 7

8 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 8 of 13 (11) Any other relevant information bearing on the national security and foreign policy interests of the United States or the interests of justice. See Attachment I (Guidelines) at 6-8. Even if, prior to his capture, Mr. El Sawah engaged in all of the activities alleged against 3 him and has all of the skills he is alleged to have, the remaining factors weigh heavily in support of his release. As described above and in Mr. El Sawah s supplemental filing, top military officials have concluded that it is highly unlikely that Mr. El Sawah would participate in terrorist activities or reestablish ties with terrorists if released. Mr. El Sawah was never ideologically committed to violent Islamic extremism. Attachment C (Letter from Major General Jay W. Hood); see also Attachment F (Letter from Intelligence Officer) (Mr. El Sawah had a very different mindset from the radical Islamists who formed the vast majority of the detainee population ). Mr. El Sawah s potential destination country is Egypt, and the Egyptian government has requested his return. Egypt has been a friend to the United States, and the United States no doubt has national security and foreign policy interests in maintaining that friendship and honoring the request for Mr. El Sawah s return (particularly when there is no basis for continuing to detain him). Mr. El Sawah has many family members in Egypt who are willing and able to provide support for him upon his release. See Attachment K (Declaration of Jamal El Sawah). Other factors also support release. The military commissions prosecutors have affirmed that they do not currently intend to prosecute Mr. El Sawah. Mr. El Sawah s conduct while 3 As the Court may recall, undersigned counsel has previously submitted substantial evidence to the Court demonstrating that the allegations are not true. 8

9 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 9 of 13 detained -- as the military officers cited above have attested -- has been commendable, and he is not a danger to anyone. His physical and psychological condition have deteriorated while detained, and this deterioration further reduces any possible likelihood of engaging in future bad acts. For all of these reasons, there is more than a substantial likelihood -- in fact there is no reasonable doubt -- that the Periodic Review Board will find that he should be released. B. Habeas Petition. The Supreme Court has held that [t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive s power to detain, and that detainees must have an opportunity to present reasonably available evidence 4 demonstrating there is no basis for his continued detention. Boumediene v. Bush, 553 U.S. 723, 783, 790 (2008) (emphasis added). By its plain terms, the AUMF does not grant unlimited power to detain. The AUMF permits necessary and appropriate force, and therefore detention, only for the limited purpose of preventing future acts of international terrorism by detainees. Basardh v. Obama, 612 F. Supp. 2d 30, 34 (D.D.C. 2009) ( [T]he AUMF... cannot be read to authorize detention where its purpose can no longer be attained. ); see also Hamdi v. Rumsfeld, 542 U.S. 507, (2004) ( It is now recognized that [c]aptivity is neither a punishment nor an act of vengeance, but merely a temporary detention which is devoid of all penal character.... A prisoner of war is no convict; his imprisonment is a simple war measure. ). It follows that the continued detention of a person who no longer poses a threat to the United States is not 4 The government, in fact, has recognized a detainee s right to challenge not only the legality, but the duration of his detention. See Kiyemba v. Obama, 561 F.3d 509, 512 (D.C. Cir. 2009) (noting government s position that detainees could raise claims only within core of habeas rights, such as a challenge to the petitioner s detention or the duration thereof. ); see also Kiyemba v. Bush, Supplemental Brief for Appellants, 2008 WL , at *9-15 (same). 9

10 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 10 of 13 5 authorized by the AUMF. Basardh, 612 F. Supp. 2d at 35. When a detainee has demonstrated that he not only would not, but could not serve the enemy, the government can no longer lawfully detain him. Even if the AUMF could be interpreted to authorized detention when the purposes of detention are no longer served, such an interpretation would violate due process as guaranteed by the Constitution. Cf. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (continued detention pending deportation requires determination of current likelihood of repatriation, and if removal not reasonably foreseeable, release required because purposes of detention no longer served by detention); Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir. 1999) (immigration confinement may not continue beyond the time when original justifications for custody are no longer tenable); see also Kansas v. Hendricks, 521 U.S. 346, 35 (1997) (civil commitment requires finding of current danger to community); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (if individual subject to civil commitment judged safe to be at large, immediate release required). 5 The Executive has repeatedly recognized that the purposes of detention under the AUMF is limited to prevent future harm and that the determination to detain or continue detention must be based on an individual s current status. See Order Establishing Combatant Status Review Tribunals issued by Deputy Secretary of Defense Wolfowitz (July 7, 2004) (providing for the release of individuals who are no longer enemy combatants, recognizing that current status of a detainee determines authority to detain); Order, Administrative Review Procedures for Enemy Combatants in the control of the Department of Defense at Guantanamo Bay Naval Base, Cuba, 1 (May 11, 2004) (recognizing that law of war permits detention for practical purposes of preventing the enemy from rejoining the conflict ); Final Report of the Guantanamo Review Task Force (January 22, 2010) at 8, available at (recognizing that the purpose of detention under AUMF is to prevent detainees from returning to the field of battle and taking up arms once again. ); Exec. Order No (continued detention warranted only if necessary to protect against a significant threat to the security of the United States ). 10

11 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 11 of 13 Here, the record overwhelmingly demonstrates that Mr. El Sawah would not rejoin any conflict and would not be a danger to the United States if released. Even if every allegation the government has ever made with regard to Mr. El Sawah s actions prior to his detention were true, Mr. El Sawah would not be a danger to the United States if released at this time. As in Basardh, the government has no rational basis upon which to support continued detention. While Mr. El Sawah s alleged previous participation with extremist groups certainly has some probative value with respect to whether he currently poses a threat to the United States, any such evidence is rebutted by the resounding evidence that he is not a threat. II. IRREPARABLE HARM OF CONTINUED UNLAWFUL DETENTION. Mr. El Sawah filed his habeas petition in this matter in The resolution of the petition, however, has been repeatedly delayed. Initially, delay related to the resolution of legal issues by the Supreme Court. After the Supreme Court issued its decision in Boumediene on June 12, 2008, the delay related to the resolution of procedural issues. Subsequently, the delay related to the government s suggestion that it may prosecute Mr. El Sawah before a military commission -- a plan which now appears has been aborted. Most recently, the delay has related to the resolution of discovery issues -- which is primarily attributable to the government s decision to slowly trickle out exculpatory evidence to Mr. El Sawah s counsel, resulting in the need for additional discovery requests and motions to compel. Only recently did the government agree to a motions schedule. The resolution of motions is likely to take months, and the merits hearing is not likely to occur until next year. The Periodic Review Board process similarly has been repeatedly delayed. Although the President directed that the reviews must begin within one year of March 7, 2011 Executive 11

12 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 12 of 13 Order, the Department of Defense did not issue guidelines for the review process until May of 2012, and has yet to begin the reviews. Each day that passes, Mr. El Sawah suffers irreparable harm. Each day is one more day of detention, one more day of lost freedom, and one more day of lost time spent with his family. Given his deteriorating health condition, Mr. El Sawah may not survive the time that it is likely to take to resolve his habeas petition or obtain a Periodic Review Board hearing. See Attachment G. Given the indisputable evidence that Mr. El Sawah presents no threat to the security of the United States, associated forces, or anyone else, there is a the substantial likelihood that the Periodic Review Board and/or this Court will order Mr. El Sawah s release. The Court should not permit the government to irreparably harm Mr. El Sawah through continued unnecessary and unlawful detention. Instead, the Court should order Mr. El Sawah s immediate release. III. NO SUBSTANTIAL INJURY TO THE GOVERNMENT. Detaining Mr. El Sawah is not necessary to preserve the government s interest in pursuing a ruling from the Periodic Review Board, this Court or a military commission, and releasing Mr. El Sawah would cause no substantial injury to the government. As set forth above, Mr. El Sawah would present no danger to the United States if released. Additionally, the government does not intend to prosecute Mr. El Sawah for alleged war crimes at this time or in the near future. See Attachment B. If the government s position changes in the distant future, and Mr. El Sawah has not passed away from old age by that time, he can be extradited under the current extradition treaty with Egypt. See 18 U.S.C. 3181; 19 Stat 572, 1875 WL (U.S. Treaty); see also United States v. Levy, 25 F.3d 146 (2d Cir. 1994) (rejecting claim that 12

13 Case 1:05-cv CKK Document 291 Filed 10/10/12 Page 13 of 13 government s conduct regarding extradition from Egypt barred prosecution). Thus, there would be no injury to the government if the Court grants the interim relief Mr. El Sawah seeks. IV. PUBLIC INTEREST. Finally, because Mr. El Sawah would present no danger if released, the public has no interest in detaining him. In fact, the public interest supports releasing a detainee where there is no basis for detention. Conclusion For the foregoing reasons, the Court should issue the attached proposed order, directing the government to release Mr. El Sawah. Respectfully submitted, A. J. KRAMER FEDERAL PUBLIC DEFENDER /s/ MARY MANNING PETRAS Assistant Federal Public Defender 625 Indiana Avenue, N.W. Suite 550 Washington, D.C (202)

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