[SCHEDULED FOR ORAL ARGUMENT APRIL 11, 2011] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Transcription

1 Case: Document: Filed: 03/07/2011 Page: 1 [SCHEDULED FOR ORAL ARGUMENT APRIL 11, 2011] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT HUSSAIN ALMERFEDI, et al., Petitioners-Appellees, v. No BARACK H. OBAMA, et al., Respondents-Appellants. EMERGENCY MOTION FOR STAY PENDING APPEAL Pursuant to Fed. R. App. P. 8 and D.C. Circuit Rule 8, respondents, Barack Obama, et al., respectfully seek a stay pending appeal of the district court s July 8, 2010 order (attached hereto as Exhibit A requiring the government to take all necessary and appropriate steps to facilitate the release of petitioner forthwith. The government filed a timely appeal of that order and sought a stay pending appeal from the district court. The appeal to this Court has proceeded expeditiously, is now been fully briefed and will be argued on April 11, 2011 (before Judges Rogers, Kavanaugh, and Silberman, in only 35 days. On Friday, March 4, the district court entered an order (attached hereto as Exhibit B denying a stay of its release order pending the disposition of this appeal. A stay is necessary, however, to permit the government the right to appeal in this

2 Case: Document: Filed: 03/07/2011 Page: 2 case. If the district court s release order is not stayed, the government will have to take immediate steps to begin the process of releasing petitioner, a Yemeni detained at the U.S. military base at Guantanamo Bay, Cuba, to his home country or another country. Petitioner s release would moot this case, depriving the government of its right to appeal. As discussed below, the government meets the requirements for a stay pending appeal. The government will suffer irreparable injury in the absence of a stay. The government will be deprived of the right to appeal the district court s order mandating the release of a person the government contends is lawfully detained under the Authorization for Use of Military Force, Pub. L. No , 115 Stat. 224 (2001 ( AUMF, which this Court has held permits, inter alia, the detention of those determined to be part of al Qaida. As detailed in the government s briefs already on file with this Court, the district court s decision was flawed in several fundamental respects. Thus, there is a substantial likelihood of success on appeal. In any event, the government should not be required to implement the release order until this Court has examined the matter and ruled on the government s appeal. Plainly, the public interest favors allowing this appeal to proceed before the case is rendered moot. Given the national security interests at stake and because oral argument is only one month away, a stay pending completion of this appeal is fully warranted. -2-

3 Case: Document: Filed: 03/07/2011 Page: 3 The government requests a temporary stay while the Court considers this motion. STATEMENT 1. This appeal arises from a petition for a writ of habeas corpus filed by petitioner Hussain Almerfedi (ISN 1015, challenging the lawfulness of his military detention by the United States at Guantanamo Naval Base, Cuba. In this habeas proceeding, the government asserted its authority under the AUMF, as informed by the laws of war, to detain persons who are part of al-qaida. The government presented evidence that Almerfedi left his home in Yemen to travel to Pakistan, where he claims he stayed for two and a half months at the central headquarters of Jama at Tablighi ( JT, an organization the United States intelligence community has designated as a Terrorist Support Entity. From Pakistan, Almerfedi crossed into Iran. Although Almerfedi alleged that he had spent a month secluded in a house in Mashad in Iran, the government s evidence demonstrated that he had in fact worked as an al-qaida facilitator in a guesthouse in Tehran. See Gov t Opening Br The evidence demonstrated that al-qaida guesthouses were not available to the public, but rather were restricted to individuals with specific definable connections to al-qaida. JA 245. In light of that fact, this Court has held that attendance at an al-qaida guesthouse can be powerful evidence that the detainee is -3-

4 Case: Document: Filed: 03/07/2011 Page: 4 part of al-qaida. See Al Adahi v. Obama, 613 F.3d 1102, 1109 (D.C. Cir. 2010, cert. denied, 2011 WL (Jan. 18, In this case, the government s evidence documented the existence of two al-qaida guesthouses in Tehran, funded by Usama bin Laden himself, and that were managed by a high level al-qaida operative, Hamza al-qaiti. See, e.g., JA 337. One of the two guesthouses was supervised by a former resident of Aden, Yemen, Marwan al-adani. Ibid. The evidence showed that these Tehran al-qaida guesthouses were used as way stations for al-qaida forces moving in and out of Afghanistan and elsewhere. Forces would move to Mashad (JA 338, on the eastern border of Iran, and then into Afghanistan, to engage the United States and its coalition partners. The government s evidence then showed that Almerfedi was present at one of the Tehran al-qaida guesthouses and acted there as a facilitator for the al-qaida fighters moving in and out of Afghanistan. JA 297, 300, 306, 326. Notably, he was also carrying large amounts of cash when caught in Tehran, consistent with being an al-qaida facilitator, and could not explain how he had so -4-

5 Case: Document: Filed: 03/07/2011 Page: 5 1 much money despite his numerous expenses during his travels. See Gov t Opening Br , 50-51; Gov t Reply Br. 11, Almerfedi also admitted to associating and staying with Jama at al-tablighi in Pakistan. As the district court recognized, members of JT had been supporting Islamic terrorist groups in South and Southeast Asia. JA 200 (quoting JA 349. The court recognized that JT members served as cover for terrorist groups, and that al Qaeda or Taliban members have stayed at the JT Center in Lahore or in other JT facilities. JA 202. Finally, the government presented reports documenting Almerfedi s face-toface conversations with al-jadani, who has been a reliable source of information (JA Al-Jadani described conversations at Guantanamo with Hussein al-adani from Yemen. While the district court raised the question whether Hussein al-adani was in fact Almerfedi, there is no dispute that Hussein al-adani means Hussein from 1 Almerfedi claims he left for Pakistan with $1,500, 15,000 Pakistani Rupees and 2,000 Yemeni Riyals. During his travels to Pakistan and Iran, he claimed to have paid for food, paid a man named Ali 8,000 Pakistani Rupees to smuggle him to Europe, and also gave Ali $1,500 U.S. for bribes and expenses. Yet, when captured he had $2,491 in his possession. He has offered no explanation for his money increasing over time despite all of these expenses. See Gov t Opening Br In short, his narrative does not fit the facts. In contrast, his possession of large quantities of cash is fully consistent with the other evidence demonstrating that he served as an al-qaida facilitator. See Gov t Classified Reply Br

6 Case: Document: Filed: 03/07/2011 Page: 6 Aden, Yemen. JA 258. Nor is there any dispute that Almerfedi, was the only Hussein from Aden at Guantanamo. See Gov t Reply Br Moreover, the information related by Hussein al-adani also shows that he was Almerfedi. Hussein al-adani told al-jadani of his stays in Tehran at an al-qaida guesthouse. Hussein Almerfedi (indeed from Aden, Yemen admits that he was in Tehran and was captured there. Notably, al-jadani also described the undisputed circumstances of Almerfedi s capture, JA 303. Al-Jadani s report of his conversation with Almerfedi including Almerfedi s description of the two al-qaida guesthouses in Tehran and Almerfedi s admission of being housed at one of those guesthouses. That evidence was corroborated by Almerfedi's admitted presence and capture in Tehran, and through his admitted travel to Mashad. It was further corroborated by other Guantanamo detainees who told al-jadani that Almerfedi was not only at an al-qaida guesthouse in Tehran, but served as an al-qaida facilitator there. See JA 297, 300. Almerfedi claimed he stayed with the JT and traveled to Tehran and then to Mashad in an effort to travel to Turkey and to resettle in Europe. His conceded movement from Tehran to Mashad, however, was 896 kilometers, or nine hours by car, east of Tehran. See JA 539. Turkey, Almerfedi s supposed destination, is almost the same distance from Tehran in the opposite direction. Almerfedi s story of -6-

7 Case: Document: Filed: 03/07/2011 Page: 7 traveling 896 kilometers in the wrong direction was a claim that even the district court found, at the very least, perplexing. JA 195. The district court also found that Almerfedi s implausible story of how and why he stayed with the JT for free to be strange and unexplained. JA The district court, however, granted the writ and issued an order requiring the Government to take all necessary and appropriate steps to facilitate the release of the petitioner forthwith. Exhibit A. 2. On March 4, 2011, the district court denied the government s motion for a stay pending appeal. The court stated that, upon careful consideration of the parties papers, the relevant legal authorities, the entire record in this case, and the significant difference between this case and those cases where other judges of this court have granted stays pending appeal, the court had concluded that a stay is not warranted. Exhibit B at 2. REASONS FOR GRANTING THE STAY A. Generally, when deciding whether to grant a stay pending appeal, a court examines four factors: (1 whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2 whether the applicant will be irreparably injured absent a stay; (3 whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4 where the public interest lies. -7-

8 Case: Document: Filed: 03/07/2011 Page: 8 Nken v. Holder, 129 S. Ct. 1749, 1761 (2009 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 ( A stay pending appeal seeks to maintain the status quo pending a final determination of the merits of the suit. Washington Metropolitan Area Transit Comm n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir It holds a ruling in abeyance to allow an appellate court the time necessary to review it. See Nken, 129 S. Ct. at 753. Here, a stay is necessary not only to preserve the status quo, but to preserve the government s right to appeal. Typically, in deciding whether to grant a stay pending appeal, [t]he first two factors * * * are the most critical. Nken, 129 S. Ct. at 1761; see also Washington Metropolitan Area Transit Comm n v. Holiday Tours, Inc., 559 F.2d at 843. Here, the most critical factor is one of irreparable harm that in the absence of a stay the government will lose its right to appeal the district court s order requiring the government to release a person it contends is lawfully detained under the AUMF. The district court s release order requires the government to take all necessary and appropriate steps to relinquish custody of Petitioner. Releasing Almerfedi to his home country of Yemen, or to another country, would, however, cause irreparable harm. That action would essentially render the case moot. -8-

9 Case: Document: Filed: 03/07/2011 Page: 9 In other circumstances, where the right to appeal would be lost in the absence of a stay, the courts routinely grant stays pending appeal. For example, courts routinely grant stays of courts orders mandating public disclosure of information. As the First Circuit explained in granting a stay: [T]he Constitution and laws entitle litigants to have their cases independently reviewed by an appellate tribunal. Meaningful review entails having the reviewing court take a fresh look at the decision of the trial court before it becomes irrevocable. Appellants right of appeal here will become moot unless the stay is continued pending determination of the appeals. Once the documents are surrendered pursuant to the lower court s order, confidentiality will be lost for all time. The status quo could never be restored. Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979; see also John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1309 (1989 (Marshall, J., in chambers (granting stay of disclosure order in a freedom of Information Act action because disclosure of required material would effectively moot appeal; United States Dep t of Commerce v. Assembly of the State of California, 501 U.S (1991 (granting stay pending appeal in FOIA action; National Council of La Raza v. Dep t of Justice, 411 F.3d 350, 355 n.3 (2d Cir (granting stay pending appeal of district court order in FOIA action; Ferguson v. FBI, 957 F.2d 1059, 1060 (2d Cir (same. Martin v. IRS, 857 F.2d 722, 724 (10th Cir. 1988; Acumenics Research & Tech. v. Department of Justice, 843 F.2d 800, 803 (4th Cir. 1988; Taylor v. Department of -9-

10 Case: Document: Filed: 03/07/2011 Page: 10 the Army, 684 F.2d 99, 102 (D.C. Cir. 1982; Coastal Gas Corp. v. Department of Energy, 644 F.2d 969, 973 (3d Cir In the present case, the need to preserve the government s right to appellate review of an order mandating release of a person the government is detaining under the AUMF, by itself, is a compelling justification for a stay. See John Doe Agency, st 488 U.S. at See also Irons v. FBI, 811 F.2d 681, 683 (1 Cir Notably, in every other Guantanamo case where a district court judge granted the writ and ordered release, the district court has granted a stay in order to allow the government the right to pursue an expedited appeal to challenge the merits of the district court s ruling. See, e.g., Al-Adahi v. Obama, 672 F. Supp. 2d 81, (D.D.C (Kessler, J. ( if Petitioner were released and if the Court of Appeals were to reverse this Court's decision, the Government is probably correct that there is little chance that the United States would be able to regain his custody. In that event, the United States would suffer irreparable injury ; Al Harbi, et al. v. Obama, Civ. No at 3 (D.D.C. Aug. 4, 2010 (Kennedy, J. ( the release of Mingazov would likely cause irreparable injury because it would be quite difficult, if not impossible, for respondents to regain custody of him were the D.C. Circuit to overturn the grant of his habeas petition ; Abdah, et al., v. Obama, Civ. No. -10-

11 Case: Document: Filed: 03/07/2011 Page: (Aug. 10, 2010 (granting a stay of Uthman s release order pending appeal To the extent that it is necessary to examine the merits of the appeal, the relevant standard is that the appellant need not establish an absolute certainty of success; instead [i]t will ordinarily be enough that the [movant] has raised serious legal questions going to the merits, so serious, substantial, and difficult as to make them a fair ground of litigation * * *. Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir (quoting Washington Metro. Area Transit Comm n v. Holiday Tours, Ind., 559 F.2d at 844. In the present case, it is manifest from the government s opening and reply appellate briefs that this appeal raises serious, substantial issues. The government s briefs in this case point to several significant legal errors made by the district court in this case. The government s evidence showed that Almerfedi was present at an al Qaida safe house in Tehran that was a stopping point for al Qaida forces moving east to Mashad and into Afghanistan and back. The evidence also showed that Almerfedi acted as an al Qaida facilitator there, assisting with those troop movements. The facts that Almerfedi was captured in Tehran, carrying large sums of cash, and his admitted 2 In Kiyemba v. Obama, 555 F.3d 1022, 1024 n.2 (2009, the government was not contesting the grant of the habeas petitions. Nonetheless, the Court stayed the order requiring release of petitioners to the United States. -11-

12 Case: Document: Filed: 03/07/2011 Page: 12 travels from Tehran to Mashad, all corroborated the government s evidence that Almerfedi was part of al Qaida serving as a facilitator at one of the two Tehran guesthouses founded by bin Laden. The evidence also showed that Almerfedi s contrary cover stories made little sense. For example, he claimed that he went to Tehran and onto Mashad in an effort to travel to Turkey and to resettle in Europe. His conceded movement from Tehran to Mashad, however, was 896 kilometers, or nine hours by car, east of Tehran. See JA 539. Turkey, the supposed destination of Almerfedi is almost the same distance from Tehran in the opposite direction. Almerfedi s story of traveling 896 kilometers in the wrong direction was a claim that even the district court found, at the very least, perplexing. JA 195. The district court also found that Almerfedi s implausible story of how and why he stayed with the JT for free to be strange and unexplained. JA The government s appeal briefs explain that the district court, lacking the benefit of this Court s intervening decision in Al Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010, cert. denied, 2011 WL (Jan. 18, 2011, failed to consider the evidence as a whole, looking to flaws in individual pieces of evidence and failing to account for their mutually corroborating nature. Indeed, the district court expressly -12-

13 Case: Document: Filed: 03/07/2011 Page: 13 cited (JA 182 and followed the approach adopted by the district court in Al Adahi, which was then reversed by this Court. The district court here also failed properly to consider the relevance of Almerfedi s incredible cover stories. The district court treated Almerfedi s incredible and nonsensical cover stores are irrelevant distractions. See Gov t Reply Br As this Court thereafter explained, however, such false cover stories cannot properly be ignored and, indeed, can be strong evidence that a person is part of al Qaida. See Al-Adahi, 613 F.3d at 1107 (such false exculpatory statements are evidence - often strong evidence -of guilt. Finally, the district court provided no legitimate basis for doubting the veracity of al-jadani s report of his conversations with Almerfedi at Guantanamo conversations where Almerfedi expressly admitted to being at the al Qaida guest house in Tehran. Petitioner suggests that the person al-jadani described as Hussein al-adeni might have been someone else. But as we detail in our appellate brief, Hussein Almerfedi was the only Hussein from Aden, Yemen, at Guantanamo at the time. See Gov t Reply Br. 4, Thus, there is no doubt that al-jadani was reporting on his conversation with Almerfedi. Further, as we detail in our briefs, the information reported by al-jadani was corroborated in by the other evidence, including Almerfedi s capture in Tehran. -13-

14 Case: Document: Filed: 03/07/2011 Page: 14 Because the appeal has been fully briefed and will be argued in approximately one month, we will not repeat the detailed arguments made in our briefs in the instant motion. As our briefs make clear, however, the government s appeal certainly presents legal and factual issues that represent fair ground for litigation and thus for more deliberative investigation sufficient to warrant a stay to avoid mooting the case. See Holiday Tours, 559 F.2d at There is no doubt a strong public interest in permitting the government the opportunity to appeal an order mandating the release of a person the government contends to be part of al Qaida, especially at a time when the United States is involved in an ongoing active armed conflict against that organization and the Taliban forces. See Al Harbi, et al. v. Obama, Civ. No at 4 (D.D.C. Aug. 4, 2010 ( the public interest in protecting national security of the United States counsels in favor of caution where the relief ordered is release. See also Al-Adahi, 672 F. Supp. 2d at 84. Further, to comply with the district court s order, the United States effectively would need to immediately begin negotiations with other countries, presumably focusing on petitioner s home country Yemen, to effect his immediate release. In the Mingazov case, Judge Kennedy recognized that it would be very difficult to conduct diplomatic negotiations regarding a Guantanamo detainee believed by the -14-

15 Case: Document: Filed: 03/07/2011 Page: 15 government to be part of al Qaida during the pendency of the government s appeal, and correctly concluded that this factor also counseled in favor of a stay. See Al Harbi, et al. v. Obama, Civ. No at 4 (D.D.C. Aug. 4, 2010 (recognizing the difficulty respondents would have in attempting to make diplomatic arrangements for transfer of Mingazov to another nation while simultaneously arguing that he is lawfully detained at Guantanamo Bay and should remain in U.S. custody. That same rationale applies here. Accordingly, granting a stay to allow this Court to address the issues presented in this case serves the public interest and is fully appropriate. See Landis v. N. Am. Co., 299 U.S. 248, 256 (1936 (noting propriety of a stay in cases of extraordinary public moment. 4. The final factor is the harm to petitioner. While Almerfedi will remain in custody during this appeal, the additional time it takes to litigate this appeal is not likely to be lengthy. This Court already has had the benefit of full briefing of the issues in this case, and will hear oral argument on April 11, in only 35 days. Thus, in light of the serious and permanent harms to the United States and to the public interest if a stay is not granted, any potential for harm to petitioner as a result of continued detention during the completion of the appellate proceedings does not outweigh the need for a stay. See Al Harbi, et al. v. Obama, Civ. No at 4-15-

16 Case: Document: Filed: 03/07/2011 Page: 16 (D.D.C. Aug. 4, 2010 ( the importance of the legal issues raised in this case, the likely impossibility of regaining custody over Mingazov were respondents to prevail on appeal after his release, and the national security concerns are compelling and outweighs the harm to petitioner Mingazov. B. The government requests a temporary stay of the district court s release order while this Court considers this motion. C. Counsel for the respondents contacted counsel for petitioner (Bill Livingston as to whether petitioner will oppose this motion, including the provisional stay while this Court considers the stay motion. Counsel for petitioner responded that petitioner objects to both aspects of the motion. -16-

17 Case: Document: Filed: 03/07/2011 Page: 17 CONCLUSION For the foregoing reasons, this Court should stay the district court s release order, pending the resolution of the appeal in this case. The Court should issue a temporary stay while it considers this motion. Respectfully submitted, /s/ Robert M. Loeb ROBERT M. LOEB ( /s/ Matthew M. Collette MATTHEW M. COLLETTE Attorneys, Appellate Staff Civil Division, Room 7212 Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C

18 Case: Document: Filed: 03/07/2011 Page: 18 CERTIFICATE OF SERVICE I hereby certify that on this seventh of March, 2011, I caused a copy of the foregoing Motion for Stay Pending Appeal to be served on the following counsel electronically through this Court s electronic filing system: S. William Livingston Brian Ernest Foster Covington & Burling, LLP 1201 Pennsylvania Avenue, NW Washington, DC David Harry Remes Appeal for Justice 1106 Noyes Drive Silver Spring, MD /s/ Robert M. Loeb U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 7628 Washington, DC (

19 Case: Document: Filed: 03/07/2011 Page: 19 EXHIBIT A

20 Case 1:05-cv UNA Document 250 Filed 07/08/10 Page 1 of 1 Case: Document: Filed: 03/07/2011 Page: 20 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HUSSAIN SALEM MOHAMMED ALMERFEDI, Petitioner, v. Civil Action No (PLF BARACK H. OBAMA, et al., Respondents. ORDER For the reasons set forth in the Court s classified Opinion filed with the Court Security Office this same day, it is hereby ORDERED that the petition for a writ of habeas corpus filed by Hussain Salem Mohammed Almerfedi (ISN 1015 is GRANTED; it is FURTHER ORDERED that the government shall take all necessary and appropriate steps to facilitate the release of the petitioner forthwith; it is FURTHER ORDERED that on or before August 9, 2010, the government shall inform the Court of petitioner s status in writing; and it is FURTHER ORDERED that the relevant agencies shall complete a classification review of the classified Opinion issued separately and contemporaneously with this Order and shall provide the Court with an unclassified version by July 22, SO ORDERED. DATE: July 8, 2010 /s/ PAUL L. FRIEDMAN United States District Judge

21 Case: Document: Filed: 03/07/2011 Page: 21 EXHIBIT B

22 Case 1:05-cv UNA Document 274 Filed 03/04/11 Page 1 of 2 Case: Document: Filed: 03/07/2011 Page: 22 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HUSSAIN SALEM MOHAMMAD ALMERFEDI, Petitioner, v. Civil Action No (PLF BARACK OBAMA, President of the United States, et al., Respondents. MEMORANDUM OPINION AND ORDER On July 8, 2010, after carefully considering the accuracy, reliability, and credibility of all of the evidence presented... in the context of the evidence as a whole, the extensive legal briefs submitted by the parties, and the arguments presented by counsel during the three-day merits hearing, Almerfedi v. Obama, 725 F. Supp. 2d 18, 21 (D.D.C. 2010, this Court concluded that the government had failed to meet its burden of showing by a preponderance of the evidence that petitioner s detention is lawful. Id. at 31. Accordingly, the Court granted petitioner s writ of habeas corpus and ordered the government to take all necessary and appropriate steps to facilitate the release of petitioner forthwith. Order at 1, July 8, On September 3, 2010, the government appealed this Court s July 8, 2010 Order to the United States Court of Appeals for the District of Columbia Circuit, and oral argument before the court of appeals has since been scheduled for April 11, The government subsequently filed a motion in this Court requesting a stay pending appellate review. Petitioner opposes the government s motion.

23 Case 1:05-cv UNA Document 274 Filed 03/04/11 Page 2 of 2 Case: Document: Filed: 03/07/2011 Page: 23 Upon careful consideration of the parties papers, the relevant legal authorities, the entire record in this case, and the significant differences between this case and those cases where other judges of this Court have granted stays pending appeal, see Al-Harbi v. Obama, Civil Action No (D.D.C. Aug. 4, 2010 (Kennedy, J.; Hatim v. Obama, Civil Action No (D.D.C. May 17, 2010 (Urbina, J.; Al-Adahi v. Obama, 672 F. Supp. 2d 81 (D.D.C (Kessler, J., the Court concludes that a stay is not warranted. Accordingly, it is hereby ORDERED that the government s motion for a stay pending appellate review [Dkt. No. 265] is DENIED. SO ORDERED. DATE: March 4, 2011 /s/ PAUL L. FRIEDMAN United States District Judge 2