UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

SUHAIL ABDU ANAM, et al. ,

P etitioner s,

v.

BARACK

H. OBAMA, et al. ,

Respondents. Civil Action No. 04-1194 (TF H)

MEMORAN DUM OPINION
This opinion sets forth the scope of the g overnme nt’s detention authority that will gove rn

proce eding s for the pe titioners in the above- captioned c ase. O n Marc h 13, 2009, the g overnme nt

submitt ed a r efine ment of its positi on with respec t to its authority to detain those per sons who are
being held at Gua

ntanamo B ay

. See Resp’ts’ Mem. Reg arding the Gov’t’s D etention Authority
(“Resp’ ts’ Mem.”) ( Mar. 13, 2009) . The g overnme nt proposed the f ollowing “ definitional

framework” :

The President has the authority to detain persons that the President deter mines planned, authori z ed
, committed, or aided the terror ist attacks that occur red on September 11, 2001, and persons who harbor ed those responsible for those attacks. T h e P re s i dent also has the authority to detain persons who wer e part of, o r substantially supported, Taliban or al-Qa ida forc es or associate d forc es t h at are eng ag ed in hostili ties ag ainst the United States or its coalition partne rs, including any person who has committed a bellige rent act, or has direc tly supported hostili ties, in aid of such e nemy

arme d forc es.
Resp’ts’ Mem. at 2. Petitioners objec t to the gove rnment’s fr amewor k. Among other a

rg uments,
petitioners asser

t that the g overnme nt’s detention authority is lim ited to civilians who become

unlawful c ombatants by

rea son of their dire ct par ticipation in hosti lities ag ainst the United States.

See Pet’rs’ Me m. in Response to Resp’ts’ Mem. at 12 (Ma r. 23, 2009).As articula ted by other Mer its J udg es, “[t] he Court’s role here is not to fashion its own

framework, but only

to determine w hether

responde nts’ proposed f

rame work is, as re spondents

claim, consistent with domestic law a nd the laws of w ar.” Mattan v. Obama , 618 F. Supp. 2d 24,
26 (D.D.C. 2009) ( L amber th, C.J .); see also Boume diene v . Bush , 583 F. Supp. 2d 133, 134
(D.D.C. 2008) ( L eon, J.) (“I do not believe . . . that it is the province of the judiciar y to draft

definitions. I t is our limi ted role to de termine whe ther de finitions crafte d by either the Ex ecutive

or the L eg islative branc h, or both, are consistent with the President’s author ity under the

Authorization for Use of

Milit ary For ce , Pub.L . No. 107-40 (2001) (the ‘A UMF’ )[.] ”) To make
this determination, the Court is guide d by the ana ly sis and conclusions of Mer its J udg es who

have explor ed the gover nment’s pr oposed fr amewor k in depth. In par ticular
, the C our t

r ecogniz es that at least thr ee M er its Judges have adopted the conclusions of Judge B ates’s
opinion in Hamlily v. Obama
, 616 F

. S upp. 2d 63 (D

. D

. C

. 2009). 1

In Hamlily
, Judge B ates declined to adopt the gover nment’s fr amewor k in its entir ety.
Judge B ates conclude d that the AU M F and laws of war author ize the detention of those who

ar e “ par t of” the T aliban, al-Qa ida, or associate d for ces. Id. at 69-70. H oweve r , he r ejec ted

the conce pts of “ substantial suppor t” and “ dir ectly suppor t[ing] hostili ties” as independe nt

bases for detention. Id. at 69. N either basis, he explained, is war r anted by domestic law or

the laws of war

. Id. With r espec t to the cr iter ia for deter mining whether a per son was “ par t

of” the T aliban, al-Qa ida or associate d for ces, Judge B ates “ employ[ed] an appr oach that is

See M attan , 618 F. Supp. 2d at 26 (“ The Court her eby adopts [the Hamlily ] opi nion.”); 1 Awad v. Obama , 2009 WL 2568212, at *2 (D.D .C. Aug . 12, 2009) (Rober tson, J .) (“ I have adopted Judge Ba tes’ appr oach.” ); Al Mutairi v. United States , 2009 WL 2364173, at *4-5 (D.D.C. Jul y

29, 2009) (Kollar -Kotelly , J .) (“ [T] he Court shall adopt the re asoning set forth in J udg e John D. Bates’ s decision in Hamlily v. Obam a .”).

2mor e functional than for mal, as ther e ar e no settled cr iter ia for deter mining who is a ‘par t of’

an or ganiza tion such as al Qae da. ” Id. at 75. U nder this functional test, “ evidenc e tending to

demonstr ate that a petitioner pr ovided significant ‘suppor t’ is r eleva nt in assessing whether he

was ‘par t of’ a cover ed or ganiza tion (thr ough member ship or other wise) or ‘committed a
belliger ent act’ (thr ough dir ect par ticipation in hostili ties). ” Id. at 70.

T he C our t her eby adopts the Hamlily opinion. Acc or dingly, the C our t conclude s that

the gover ning fr amewor k in the above- captioned case will be as follows:

The President has the authority to detain persons that the President deter mines planned, authorized, committed, or aided the terror ist at t ac k s that occur red on September 11, 2001, and persons who harbor ed those responsible for those attacks. The President also has the authority to detain persons who wer e part of Taliban or alQaida forc es or associ ated forc es that are eng ag ed in hostili ties ag ainst the United States or its coalition partne rs, including any person who has committed a bellige rent act in aid of

such ene my

arme d forc es.

T he C our t notes that this pr ecise fr amewor k has been adopted by multipl e M er its Judges, and

is not inconsistent with Judge Walton’s opinion in Ghere bi v. Obama
, 2009 WL 1068955
(D

. D

. C

. Apr

. 22, 2009), as applied. 2

S eptember 14, 2009 / s/ Thomas F. H og an United States District J udg e

T he differ ence betwee n this C our t’s fr amewor k and the fr amewor k adopted by Judge 2 Walton is lar gely one of for m r ather than substance. T hough acc epting the gover nment’s fr amewor k, Judge Walton expr essed his “ distaste” for the gover nment’s r eliance on the ter m

“ suppor t. ” Ghere bi, 2009 WL 1068955 at *23. H e clar ified that he was adopting the fr amewor k, “ pr ovided that the ter ms ‘substantially suppor t’ and ‘par t of’ ar e inter pr eted to encompa ss only individuals who wer e member s of the enemy or ganiza tion’s ar med for ces. ” Id. at *24.

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