Case 3:11-cv RJB Document 24 Filed 04/06/12 Page 1 of 11 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

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1 Case :-cv-00-rjb Document Filed 0/0/ Page of UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON ABD AL-RAHIM HUSSEIN MUHAMMED ABDU AL-NASHIRI, Plaintiff, v. BRUCE MACDONALD, Defendant. CASE NO: :-00-RJB REQUEST FOR JUDICIAL NOTICE Noted for Consideration: April, 0 ORAL ARGUMENT REQUESTED DATE: April, 0 0 A court may take judicial notice of any adjudicative fact that is not subject to reasonable dispute and which can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 0(b; Singh v. Ashcroft, F.d 0, 0 (th Cir. 00. On a motion to dismiss, a court may take judicial notice of matters of public record without converting the motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 0 F.d, - (th Cir. 00; MGIC Indem. Corp. v. Weisman, 0 F. d 00, 0 (th Cir.. Judicial notice must be taken when a party requests it and supplies the court with all of necessary information. Fed. R. Evid. 0(d. The recognition of hostilities, such that the law of war applies to a particular time and place, is an official political act that must be decided by the political branches. Baker v. Carr, U.S., ( (citing The Protector, Wall. 00 (; Ludecke v. Watkins, U.S. 0, 0 (; Al-Bihani v. Obama, 0 F.d, (D.C. Cir. 00. When called to adjudicate legal questions that turn on the existence of hostilities, courts must take judicial notice of some public act of the political departments of the government to fix the dates [on which hostilities began and ended]. The Protector, Wall. at 0; see also Portsmouth Harbor Land

2 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 0 & Hotel v. United States, 0 U.S., (; Johnson v. Biddle, F.d, (th Cir. ( The courts take judicial notice that the United States is or is not engaged in war. ; Mead v. United States, F., (th Cir. ( [C]ourts take judicial knowledge of the commencement and existence of a war; Am. Jur. d War ( ( Whether war exists in its legal sense at any given time is a matter to be determined solely by the political department of the government. The determination of the existence of a state of war by the political department of the government is conclusive upon the courts, and of this determination the courts must take judicial notice.. Mr. Nashiri asks this Court to take judicial notice of the following three facts, which are necessary for the resolution of the defendant s motion to dismiss:. Congress first determined that hostilities commenced in Yemen no earlier than 00;. The President first determined that hostilities commenced in Yemen no earlier than September, 00; and. September, 00 is the earliest date on which hostilities in Yemen could have commenced. All three facts are official public acts of the government, which are properly subject to judicial notice. Gibbes v. Zimmerman, 0 U.S. 0, - (; Lyon v. Gila River Indian Community, F.d 0, 0 (th Cir. 00; Merritt v. United States, F. 0, (th Cir. 0 rev d on other grounds U.S. (. I. The Congressional determination that hostilities commenced in Yemen no earlier than 00 is an official act that is properly subject to judicial notice. Legislative findings respecting the circumstances existing during a legislative session are subject to judicial notice. Home Bldg. & Loan Ass n v. Blaisdell, 0 U.S., (. In particular, Congressional determinations respecting whether the laws of war apply and their scope of application are properly subject to judicial notice. Talbot v Seeman, Cranch, - (0 (Marshall, C.J. (holding that acts of Congress can alone be resorted to [in order to

3 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 0 determine the existence and scope of hostilities]... in which case the laws of war, so far as they actually apply to our situation, must be noticed. ; Bas v. Tingy, U.S., - (00 (Chase, J. (taking notice of the fact that congress has authorised [sic] hostilities on the high seas by certain persons in certain cases ; Portsmouth Harbor, 0 U.S. at (taking judicial notice the Congressional resolution ending World War I; Merritt, F. at (taking judicial notice of the Congressional resolution initiating World War I; Stephens v. United States, F. 0, (th Cir. (same. After its authorization for the Gulf War in, Congress neither declared war nor authorized military force at any time prior to September 00. Authorization for Use of Force Against Iraq Resolution, 0 Stat. ( (reprinted in 0 U.S.C. note. In response to the September th attacks, Congress passed the Authorization for Use of Military Force ( AUMF, Stat. (00 (reprinted in 0 U.S.C. note. As described by the Congressional Research Service, the AUMF granted the President the authority to take military action against those involved in some notable way with the September attacks on the U.S. Richard L. Grimmett, CRS Report for Congress, Authorization for Use of Military Force in Response to the / Attacks (P.L. 0-0: Legislative History, at (Jan., 00 ( AUMF Leg. Hist. (attached Exh. A,. Congress declined to enact a provision included in the White House s draft legislation that would have expanded the scope of hostilities to deter and pre-empt future acts terrorism and aggression. AUMF Leg. Hist. at - (Exh. A, -0. The only debate in Congress was over the extent of the authorization that Congress would provide to the President for use of U.S. military force. Id. at (emphasis added (Exh. A,. Congress rejection of the broader language was a self-conscious choice to recognize military actions against only those

4 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 0 international terrorists and other parties directly involved in aiding or materially supporting the September, 00 attacks on the United States. The authorization was not framed in terms of use of military action against terrorists generally. Id.; cf. Youngstown Sheet & Tube Co. v. Sawyer, U.S., (. The post-enactment conduct of the President and the Congress confirms that neither understood the AUMF as a blanket application of the law of war against all international terrorism or even all members of al Qaeda everywhere in the world. In November 00, the President sought and Congress passed a separate authorization for the use of force in Iraq. Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, Stat (00. One of the primary casus belli for the initiation of hostilities in Iraq was the need to neutralize terrorist groups, including al Qaeda, harbored by the Ba athist regime. Id. at pmbl. ( Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September, 00, are known to be in Iraq. Congress has never passed a declaration of war or other authorization for the use of military force specific to Yemen. The first Congressional recognition of a conflict in Yemen of any kind was on November, 00, when the Senate passed a resolution expressing concern over a rebel insurgency in Yemen that it viewed as having commenced in 00. Supporting peace, security, and innocent civilians affected by conflict in Yemen. S. Res., th Cong. (00 (enacted (attached Exh. B,. This Court can therefore take judicial notice of the fact that Congress determined that hostilities commenced in Yemen, such that the laws of war would apply, no earlier than November, 00 or, in the alternative, some indefinite date in 00.

5 Case :-cv-00-rjb Document Filed 0/0/ Page of II. The Presidential determination that hostilities commenced in Yemen on September, 00 is an official act that is properly subject to judicial notice. Since the Civil War, courts have recognized that the President can, by public 0 0 pronouncement, initiate and terminate hostilities for the purpose of the application of the laws of war to particular places. The Prize Cases, Black, (; see also Lee v. Madigan, U.S., (; United States v. Smith, U.S., - (; Ex parte Cooper, U.S., (; The Protector, Wall. at 0; Hamdi v. Rumsfeld, F.d 0, (th Cir. 00 rev d on other grounds U.S. 0 (00; Padilla v. Rumsfeld, F.d, (d. Cir. 00 rev d on other grounds U.S. (00; United States v. Sobell, F.d, (d Cir. ; Merrit, F. at. With the War Powers Resolution, Stat. ( (codified at 0 U.S.C., et seq., Congress sought to regulate and formalize the President s authority to initiate hostilities. The War Powers Resolution aims to fulfill the intent of the framers of the Constitution... and ensure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities. 0 U.S.C. (a. The War Powers Resolution triggers reporting requirements whenever the President introduces U.S. forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, into the territory, airspace or waters of a foreign nation, while equipped for combat,... or; in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation. 0 U.S.C. (a. Between and 00, the President submitted reports to Congress under the War Powers Resolution. Richard L. Grimmett, CRS Report for Congress, The War Powers Resolution: After Thirty-Six Years (Apr., 00 (attached Exh. C,. Included in each report, sometimes by express citation to a particular subsection, the President articulates the nature of

6 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 U.S. involvement as hostilities, a new foreign deployment, or a significant force augmentation. Id. at - (Exh. C, -. This certification is important because if U.S. forces have been introduced into hostilities, other provisions of the War Powers Resolution pertaining to timetables for withdrawal and the need for Congressional action are triggered. 0 U.S.C. (a-(b. As a consequence, the War Powers Resolution makes the President s determination that the United States is involved in hostilities a matter of public record. The President did not recognize existence of hostilities in Yemen until at least 00. The first War Powers Resolution report pertaining to Yemen was issued in response to the bombing of the U.S.S. COLE. This report was explicit that the deployment of personnel to Yemen was solely for the purpose of assisting in on-site security.... United States forces will redeploy as soon as the additional security support is determined to be unnecessary. In a series of public statements, the President reiterated that he did not recognize the bombing of the U.S.S. COLE as implicating the laws of war. To the contrary, the President reaffirmed that the United States remained at peace. In his radio address to the nation, the President emphasized, This tragic loss The AUMF is supplementary to the War Powers Resolution. AUMF (b(. When the President has drawn upon the AUMF to initiate hostilities in specific places, he has done so via War Powers Resolution reports. See, e.g., Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, Wkly. Comp. Pres. Doc. (Oct., 00 (commencing combat operations in Afghanistan (attached Exh. D, ; Letter to Congressional Leaders Reporting on United States Efforts in the Global War on Terrorism, Wkly. Comp. Pres. Doc. (Mar. 0, 00 (commencing combat operations in Pakistan (attached Exh. E, ; Letter to Congressional Leaders Reporting on Efforts in the Global War on Terrorism, Wkly. Comp. Pres. Doc. (Sept., 00 (commencing combat operations in Yemen (attached Exh. F,. This is true of the AUMF against Iraq as well, such that when hostilities ultimately commenced in March 00, the President filed a War Powers Resolution report. Letter to Congressional Leaders Reporting on the Commencement of Military Operations Against Iraq, Wkly. Comp. Pres. Doc. (Mar., 00 (attached Exh. G, 0-. Letter to Congressional Leaders Reporting on the Deployment of United States Forces in Response to the Attack on the U.S.S. COLE, Wkly. Comp. Pres. Doc. (Oct., 000 (attached Exh. H,.

7 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 should remind us all that even when America is not at war, the men and women of our military risk their lives every day in places were comforts are few and dangers are many. No one should think for a moment that the strength of our military is less important in times of peace, because the strength of our military is a major reason we are at peace. Prior to September 00, the President deployed U.S. personnel to Yemen only for training and equipping their armed forces and providing oversight for urban and maritime counter-terrorism training with the Yemen special operations forces. Only on September, 00, did the President first certify the existence of military operations against al-qaida and other international terrorists in the Horn of Africa region, including Yemen. Similar military operations in Yemen have been reported in subsequent War Powers Resolution reports. This Court can therefore take judicial notice of the fact that the President determined that hostilities commenced in Yemen, such that the laws of war would apply, no earlier than September, 00. The President s Radio Address, Wkly. Comp. Pres. Doc. (Oct., 000 (attached Exh. I,. Letter to Congressional Leaders Reporting on the Deployment of Forces in Response to the Terrorist Attacks of September, Wkly. Comp. Pres. Doc. (Sept. 0, 00 (attached Exh. J,. Letter to Congressional Leaders Reporting on United States Efforts in the Global War on Terrorism, Wkly. Comp. Pres. Doc. (Mar. 0, 00 (attached Exh. E,. Letter to Congressional Leaders Reporting on Efforts in the Global War on Terrorism, Wkly. Comp. Pres. Doc. (Sept., 00 (attached Exh. F,. Letter to Congressional Leaders Transmitting a Consolidated Report on the Deployment of U.S. Combat-Equipped Armed Forces, 0 Wkly. Comp. Pres. Doc. (Mar., 00 (attached Exh. K, ; Letter to Congressional Leaders Transmitting a Consolidated Report on the Deployment of U.S. Combat-Equipped Armed Forces, 0 Wkly. Comp. Pres. Doc. 00 (Nov., 00 (attached Exh. L, ; Letter to Congressional Leaders Reporting on Deployment of U.S. Combat-Equipped Armed Forces Around the World, Wkly. Comp. Pres. Doc. (May 0, 00 (attached Exh. M, ; etc.

8 Case :-cv-00-rjb Document Filed 0/0/ Page of III. This court should take judicial notice of September, 00 as the earliest date on which hostilities first commenced in Yemen. While a formal declaration of war is not required for the laws of war to apply, there 0 0 must be some determination by the political department of the government evidencing the existence of such a condition. Verano v. De Angelis Coal Co., F. Supp., (M.D. Pa. ; see also The Three Friends, U.S., - ( ( [I]t belongs to the political department to determine when belligerency shall be recognized, and its action must be accepted [by the courts] according to the terms and intention expressed. ; Masterson v. Howard, U.S., 0 ( ( That was the first public act of the executive in which the existence of the war was officially recognized, and to its date the courts look to ascertain the commencement of the war. ; Koohi v. United States, F.d, - (th Cir. (holding that the combat activities exception to the Federal Tort Claims Act turns on whether combat is formally authorized by the Congress or follows less formal actions of the Executive and Legislative branches, in that case, a deliberate decision by the executive branch ; New York Life Ins. Co. v. Durham, F.d, (0th Cir. ( In deciding judicial questions concerning the commencement or termination of a state of war, the Courts are generally required to refer to some public act of the political departments of the Government. ; Merritt, F. at ( Of these proclamations, as of the resolution of Congress of April,, declaring a state of war, judicial notice was proper. They were public acts.... ; cf. Martin v. Mott, Wheat., 0 ( (Story, J. (courts must take judicial notice of the President s declaration of emergency calling up the militia. The political acts applying the law of war to a particular time and place are narrowly construed when the recognition of hostilities varies the ordinary application of criminal laws or operates as a grant of power to military tribunals to try people for capital offenses. Lee,

9 Case :-cv-00-rjb Document Filed 0/0/ Page of 0 U.S. at (looking to President Truman s Proclamation No., Cessation of Hostilities of World War II, Fed. Reg. (Jan., as fixing the date on which hostilities ceased for the purpose of courts-martial jurisdiction over capital offenses; Smith, U.S. at - (holding that President Truman s Proclamation set the termination of hostilities for the purposes of suspending criminal statutes of limitation under the Contract Settlement Act of, Stat., ( (now codified as amended as the Suspension Act at U.S.C. ; Sobell, F.d at (holding that President Truman s Proclamation set the end of hostilities for the purpose of the time of war offenses in the Espionage Act; United States v. Strong, F. (W.D.Wash. 0 (taking judicial notice of the President Wilson s signing of the armistice ending World War I, thereby limiting the application of the Espionage Act. The first public act of the political branches determining the existence of hostilities in Yemen was the President s War Powers Resolution report, filed with the Congress on September, 00. This Court can therefore take judicial notice that hostilities commenced in Yemen no earlier than September, 00. See also United States v. Anderson, C.M.R. (C.M.A. (setting the commencement of the Vietnam war on the date of the Gulf of Tonkin Resolution, Stat. (; United States v. Bancroft, C.M.R. (C.M.A. (setting the commencement of the Korean War on the basis of Executive Order No. 0, Fed. Reg. (Dec., 0 and Revenue Act of 0, Stat. 0 (0. The Ninth Circuit endorsed these cases as authoritative interpretations of the time of war provisions of the Uniform Code of Military Justice in Broussard v. Patton, F.d, (th Cir. ; see also United States v. Averette, C.M.R. (C.M.A. 0 (construing Uniform Code of Military Justice as not conferring jurisdiction over civilians in Vietnam because the general recognition of hostilities should not come as a shortcut for a formal declaration of war, at least in the sensitive area of subjecting civilians to military jurisdiction. ; Hamilton v. McClaughry, F. (C.C. D. Kan. 0 (holding that a condition of war must be determined by the political department of the government; that the courts take judicial notice of such determination and are bound thereby and that the dates of the Boxer Rebellion for the purposes of court-martial jurisdiction are determined by the War Department s order of a large scale combat deployment to China and the recognition of a condition of war by the Congress of the United States.

10 Case :-cv-00-rjb Document Filed 0/0/ Page 0 of Dated: April, 0 Respectfully submitted, /s/ Michel Paradis Michel Paradis Office of the Chief Defense Counsel 0 Defense Pentagon Washington, DC 00 michel.paradis@osd.mil x /s/ Richard Kammen Richard Kammen Gilroy, Kammen, Maryan & Moudy N. Pennsylvania Street Suite Indianapolis, IN /s/ Robert Gombiner Robert Gombiner Law Offices of Robert Gombiner st Avenue South Suite 00 Seattle, WA Counsel for Plaintiff Counsel for Plaintiff Local Counsel Mr. Nashiri is also represented by LCDR Stephen Reyes, USN, and Maj Allison Danels, USAF. In 00, the Department of Defense prohibited uniformed officers from appearing in federal court cases arising out of Guantanamo Bay. 0

11 Case :-cv-00-rjb Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that on the th Day of April 0, I caused the foregoing to be served on the Defendant s counsel electronically by means of the Court s CM/ECF software. Dated: April, 0 0 /s/ Michel Paradis Michel Paradis Office of the Chief Defense Counsel 0 Defense Pentagon Washington, DC 00 michel.paradis@osd.mil x Counsel for Plaintiff