Cert. petition in Ali accepts Justice Breyer’s invitation

As I posted back in April, Justice Breyer issued a statement respecting denial of certiorari in the case of Hussain v. Obama in which he more or less invited Guantánamo habeas petitioners to raise two questions that the Court had not yet considered:

The Court has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.  Nor have we considered whether, assuming detention on these bases is permissible, either the AUMF or the Constitution limits the duration of detention.

A petition for certiorari now pending before the Court, in Ali v. Obama, No. 13-10450, raises the first of Justice Breyer’s questions.  The petition also invokes Justice Breyer’s second question; however, detainee’s counsel does not appear to have preserved, or even raised, the potentially strongest reason to be concerned about the duration of detention in this case.

The district court in Ali found, and the court of appeals affirmed, that the government had demonstrated that Ali was a member of “a force led by Abu Zubaydah,” which the government claimed was an “associated force” of al Qaeda engaged in the armed conflict with the United States.  The government did not, however, attempt to prove that Ali himself had taken any steps to engage in that armed conflict.

The second question presented in Ali’s petition asks whether proof of membership in an associated force is sufficient to justify detention under the relevant statutes and the Constitution.  In my earlier post I suggested several reasons why I think the Court is unlikely to hold that the government must prove the detainee’s personal engagement in the armed conflict; and the government offers similar views in its brief in opposition (at pages 16-19).  Regardless of the merits, however, this petition does appear to cleanly tee up Justice Breyer’s question, in the event there are four or more Justices inclined to consider it.

The third question in the petition also nominally raises the “duration of detention” question that Justice Breyer noted.  It strikes me, however, that counsel for Ali has not framed (and likely has not preserved) that question in its potentially strongest form.

The government’s theory of the case, as noted above, is that Ali was part of an associated force led by Abu Zubaydah.  Zubaydah himself was apprehended along with Ali in March 2002.  I am not aware that the government attempted to introduce any evidence that his “force” remains in existence, well over a decade after his capture–let alone that Abu Zubaydah’s force continues to be engaged as a cobelligerent with al Qaeda in an armed conflict with the United States, which is presumably what would be required to justify Ali’s continued detention.  And the court of appeals decision elided this question, as Jen and Steve wrote:

[E]ven if Zubaydah’s force had entered the fight alongside al Qaeda against the U.S. back in the months after September 11, and thereby did qualify as an associated force of al Qaeda, the D.C. Circuit does not address the separate question whether there remains an armed conflict between the U.S. and Zubaydah’s force today.  Indeed, it’s not at all obvious from Judge Kavanaugh’s opinion that Zubaydah’s force even exists any longer, more than 11 years after Zubdayah himself was captured.  If so, then Ali is being detained in order to prevent him from rejoining a group that is non-existent.  Again, the answer to the ultimate question depends upon evidence to which we’re not privy; perhaps that force still exists and is engaged in an armed conflict with the U.S., which might explain why Ali’s counsel did not contest the issue.  Our point is merely that the D.C. Circuit makes no effort at all to demonstrate that Ali was part of an armed force with which we are currently in an armed conflict — the logical and legal predicate to military detention pursuant to the AUMF.

In her reply brief at the petition stage, Ali’s counsel states that Abu Zubaydah’s force was a “phantom” that was, if anything, organized by an unknown persons other than Abu Zubaydah.  In the habeas proceedings below, however, she did not challenge the government’s assertion that the Abu Zubaydah force was an “associated force” of al Qaeda under the AUMF; and therefore that argument has not been preserved.  Moreover, and more to the point, as far as I’m aware counsel has not raised the question of whether that force continues to be engaged in an armed conflict with the United States.  Therefore I think it is highly unlikely the Court will grant certiorari to consider the “duration of detention” question in the Ali case.

The Court will likely consider the Ali petition at its “long” conference on September 29. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).