gitmo money

EXHIBIT 1

DECLARATION OF JAY ALAN LIOTTA

Case 1:05-cv-00392-UNA Document 357-1 Filed 04/11/14 of 4

Case 1:05-cv-00392-UNA Document 357-1 Filed 04/11/14 of 4

EXHIBIT A

Case 1:05-cv-00392-UNA Document 351-1 Filed 03/07/14 Page 1 of 8

From:To: Wells Dixon; Subject: Declaration of Djamel AmezianeDate: Thursday, February 13, 2014 6:03:04 AM

DECLARATION DE DJAMEL AMEZIANE Je, Djamel AMEZIANE, arrête ce qui suit : Je suis un citoyen algérien qui a été emprisonné à la base navale des Etats-Unis à Guanatanamo, Cuba près de douze ans. J'ai été transféré de Guantanamo le 04 décembre 2013 au tour de trois heures du matin (heure Guantanamo) de l'aéroport de Guantanamo et arrivé le même jou à vingt heure hui minute (20:08) (heure Algérie) à l'aéroport international d'Alger "Houari Boumedienne". C'était un vol direct d'environ douze heures, dans un avion militaire Cargo, le numéro du vol est le "rch 481 C17 101691". J'ai été transféré en compagnie d'un autre prisonnier du nom de Belkassem Bensayah, durant tout le vol j'avais les pieds menottés au planché de l'avion, les mains menottées aux deux côtés du corps, les yeux bandés et un casque de stop-bruit sur les oreilles. A mon arrivé à laéroport d'Alger, j'ai été remis aux policiers Algéries,(la deuxième brigade de la section des frontières aériennes) qui sont montés dans l'avion, ils m'ont menotté les mains dans le dos, relevé le bas de mon T-Shirt ( je ne portais


qu'un T-Shirt, dans l'avion où il faisait froid et à mon arrivé en Algérie ou il faisait froid aussi) pour me couvrir le visage. On m'a fait sortir brutalement de l'avion, fait monté dans une voiture de police et conduit au poste de police de l'aéroport où j'ai subit un court interrogatoire, on a pris mes empreintes digitales, photographié ensuite conduit par la police BRI (Brigade de Renseignement et d'Investigation) vers la DGSN (Direction Générale de la Sureté Nationale) où je suis resté jusqu'au dix décembre (10-12-2013). J'ai subi plusieurs interrogatoires par le BRI et d'autre services de renseignement. Je restais dans une grande cellule que je partagais avec les criminelles, trafiquants de drogue...(le droit commun) où les conditions de vie étaient mauvaises surtout sur le plan hygiénique, cela a beaucoup affecté ma santé, je suis tombé malade d'ailleure je suis encore malade à ce jour. Le dix décembre (10-12-2013) j'ai été conduit au tribunal d'Alger-centre (Sidi Mohamed) où j'ai rencontré le procureur de la république, ensuite interrogé par le juge d'instruction, j'ai été mis sous contrôle judiciare et libéré sous condition que je dois me présenter au tribunal une fois par mois pour signer jusquà mon jugement. Maintenant je n'ai aucun papier d'identité, je n'ai pas le droit de travailler, je n'ai aucun moyen de revenu, les Américains m'ont confisqué mon argent, je dois empreinter de l'argent pour prendre le bus afin de me rendre au tribunal pour singer, je dois empreinter de l'argent pour pouvoir manger et


à part les vêtements que je porte depuis ma libération, je n'ai aucun vêtement de rechange, je n'ai pas de logement - mon frère a accepté de me loger temporairement dans sa petite demeure avec ses six enfant - je n'ai pas de l'argent pour louer un appartement, les personnes des différents services du gouvernement avec qui j'ai parlé m'ont dit explicitement qu'il ne m'apporteront aucune assistance ni du côté financier ni du côté logement, ni rien absolument rien, j'ai demandé l'aide de la croix rouge internationale à Alger mais j'ai reçu la même réponse. Maintenant le gouvernement américain a non seulement refusé de me compenser pour les douzes années emprisonné à GUANTANAMO mais encore il m'a confisqué l'argent qui était en ma pocession et que j'ai gagné en travaillant dûr lorsque je vivais au canada. Les policiers algériens chez qui j'ai passé mes premiers jours en Algérie étaient indignés d'apprendre une telle chose. Ils m'ont dit que c'est mesquin de la part d'un pays qui se proclame le leader des droits de l'homme, et joue le "policier justicer" dans le monde. Je declare sous peine de parjure, que la declaration qui précède est véridique et exacte. Signé ce 13 jour de février 2014


___________________________ Djamel AMEZIANE ISN - 310 Alger, Algérie


DECLARATION OF DJAMEL AMEZIANE

:NE, make the following declarationI, Djamel AMEZIA

Guantanamo US Navy Base for close imprisoned in citizen of Algeria who wasI am a to twelve years.

Guantanamo Bay on December 4, from ,through Guantanamo Airport ,I was transferred at Algiers Houari Boumediene arrived I ).Guantanamo time3:00 am ( at about 1320

on ,flight a direct) It was .the same day at 8:08 pm (Algerian timeon International Airport the flight number was "rch ;twelve hours which lasted about ,board of a military cargo plane

Belkacem I was transferred along with another prisoner by the name of "481 C17 101691.chained to the floor of the plane and my hands were shackled to my y feet wereensayeh. MB

as cancelling headphones-blindfolded and was wearing noise . I wasfor the entire flight waistAir Second Brigade of the . Upon arriving at Algiers Airport, I was handed over to the well

-, cuffed my hands behind my back, pulled my TBorder Guards, who boarded the planeForce the plane where the while on shirt -a T only wearing I was –r my face to coveup shirt

as was very cold temperature ia, thetemperature was very cold and upon arriving to Algerin a police car and drove me me . They brutally got me out of the plane and put, for mewell

he police station where I was subjected to a short interrogation. After they took my to tIntelligence and Investigation Brigade) drove me to the ( the IIB d a mug shot,fingerprints an

thecember 10until D where I remainedGDNS (General Directorate of the National Security) , which were conducted by the IIB I was subjected to several interrogations(12/10/2013.)

in a large cell along with criminals and I was heldother intelligence agencies. along with far as living conditions, especially as poorin –aw criminals LCommon –drug traffickers

I have been sick ever since. impact on my health. a serious hygiene is concerned, which had

I was taken to Sidi Mohamed Courthouse in downtown Algiers ,On December 10, 2013and I was then interrogated by the Investigative where I met with the General Prosecutor

. And I was I was placed under judicial supervision and then released on probation . Judgeits decision. once a month while waiting for the court to renderto the court to report required

–have any identity documents, I have no right to work, I have no income I presently don't the bus to to take in order and I have to borrow money –seized my money have Americans

my brother has agreed –any spare clothing, I have no home I don't have report to the court; I ; temporary lodging in his small home where he lives with his six children a offer me to

money to rent an apartment and the officials from various government any don't have or housing agencies have explicitly indicated to me that they will offer me neither financial n

assistance from ce whatsoever. I soughtany kind of assistanme assistance, nor will they offer the same response. again received andICRC the

So, the US government has not only refused to compensate me for twelve years of seized the money I had earned through my hard it has but in Guantanamo, imprisonment

work in Canada.


The Algerian police officers who detained me when I first arrived to Algeria were to do such a countrya so petty from d that it wasoutraged to learn such a thing. They sai

'sthe world the role of the leader of human rights and plays claims to be thing when it."police "vigilante

I declare under penalty of perjury, that the statement above is true and correct.

.day of February 2014 thSigned on this 13

Djamel AMEZIANE, ISN 310 Algiers, Algeria


REPLY EXHIBIT A


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Wells Dixon

From: Barish, Daniel (CIV) <[email protected]>Sent: Wednesday, April 30, 2014 12:52 PMTo: Wells Dixon; Warden, Andrew (CIV)Cc: Shane KadidalSubject: RE: Ameziane -- Request for Discovery

Wells - We cannot agree to your discovery requests set forth below. As explained in our opposition to your motion for return of personal property, Petitioner's claim for return of personal property is not cognizable in habeas and the Court lacks jurisdiction over this non-habeas claim. See 28 U.S.C. sec. 2241(e)(2). Therefore, your discovery requests are irrelevant. Additionally, these discovery requests do not meet the requirements of section I.E.2 of the Amended Case Management Order. In any event, the policy concerning return of detainee property, while not the subject of a formal DoD issuance (see http://www.dtic.mil/whs/directives/corres/ins1.html <http://www.dtic.mil/whs/directives/corres/ins1.html> ) or similar formal document, is explained in Mr. Liotta's declaration. Please let us know if you will be seeking an extension and how long of an extension you will be seeking. Thank you. Dan From: Wells Dixon [mailto:[email protected]] Sent: Friday, April 25, 2014 4:31 PM To: Barish, Daniel (CIV); Warden, Andrew (CIV) Cc: Shane Kadidal Subject: Ameziane -- Request for Discovery Dan, Andrew -- I am writing further to Mr. Ameziane's motion to compel the return of his personal property. In its opposition brief and supporting declaration by Jay Alan Liotta, the government cites a DOD policy to retain money held by Guantanamo detainees at the time of their capture regardless of the facts and circumstances of their individual cases, including whether they have prevailed in habeas. I request that you produce to us a copy of the policy and all related documents, including without limitation the basis for the government's claim that the policy is "analogous" to the statutory requirements of the 2014 NDAA (which, as you know, do not apply to detainees who have prevailed in habeas). I also request that you make Mr. Liotta available for a deposition so that we may question him about the DOD policy and determine whether or to what extent that policy should be afforded any deference by the Court. I would appreciate if you would please let me know as soon as possible whether the government will agree to these requests, so that we can determine whether it may be necessary to seek further relief from the Court. Thanks -- Wells J. Wells Dixon Senior Staff Attorney Center for Constitutional Rights


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666 Broadway, 7th Floor New York, New York 10012 Tel: (212) 614-6423 Fax: (212) 614-6499 [email protected]


EXHIBIT B


From: Warden, Andrew (CIV)To: Wells Dixon; cc: Barish, Daniel (CIV); Subject: Ameziane (ISN 310) - Money RequestDate: Friday, January 31, 2014 2:58:46 PM

Wells: I am writing in response to your request that the Department of Defense return to Mr. Ameziane the money that you allege was taken from Mr. Ameziane at the time of his capture (approximately 700 British pounds and a smaller quantity of Afghan currency). DoD's policy has been to provide detainees who are being transferred from Guantanamo with the property that they arrived with unless those items constitute money, contraband, or property believed by law enforcement officials to have evidentiary value. That policy was followed at the time of Mr. Ameziane's transfer to Algeria. With the exception of the currency in the possession of JTF-GTMO, Mr. Ameziane was provided with all of the items that Mr. Ameziane arrived with as well as items that Mr. Ameziane acquired while in detention at GTMO (e.g., his legal materials). Such currency is not provided to departing detainees due to the concern that those funds may ultimately be used in a manner that adversely affects the security of the United States. Accordingly, DoD cannot agree to your request to return to Mr. Ameziane the currency in JTF-GTMO's possession that he asserts belongs to him. I understand that you may seek relief from the court on this issue. If so, the government will oppose your motion. Best regards,Andrew Andrew I. WardenU.S. Department of JusticeCivil Division, Federal Programs BranchTel: (202) 616-5084


mailto:[email protected]

mailto:[email protected]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

––––––––––––––––––––––––––––––––––––––––– x DJAMEL AMEZIANE,

Petitioner,

v. BARACK OBAMA, et al.,

Respondents.

: : : : : : : : : : :

––––––––––––––––––––––––––––––––––––––––– x

Civil Action No. 05-392 (ESH)

MOTION FOR GRANT OF HABEAS RELIEF IN THE FORM OF AN ORDER REQUIRING THE GOVERNMENT

TO RETURN PETITIONER’S PERSONAL PROPERTY

Petitioner Djamel Ameziane, by and through his undersigned counsel, respectfully

moves for an order granting habeas relief in the form of an order requiring the government to

return his personal property. He asks the Court to order the government to return approximately

£700 (GBP) that he had earned legally while living in Canada and were seized at the time of his

capture. The funds were not returned to him when he was forcibly transferred to Algeria in

December 2013, and have been withheld by Joint Task Force Guantánamo in violation of U.S.

and international law since his transfer. Mr. Ameziane also requests interest on the funds from

the date they were seized. Alternatively, he requests that the Court schedule a full hearing on the

merits of his habeas petition. Post-transfer habeas relief is necessary and appropriate because

Mr. Ameziane continues to suffer collateral consequences of his prior detention at Guantánamo

that are concrete and specific, and plainly redressible by the Court. The government objects.

Case 1:05-cv-00392-UNA Document 351 Filed 03/07/14 Page 1 of 13

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Background

The history of this case is well-known and undisputed. Mr. Ameziane was rendered to

Guantánamo Bay more than twelve years ago. He filed this habeas case more than nine years

ago. More than five and a half years ago the Supreme Court held in Boumediene v. Bush, 553

U.S. 723, 783, 795 (2008), that “the costs of delay can no longer be borne by those who are held

in custody”; “[t]he detainees in these cases are entitled to a prompt habeas corpus hearing”; and

“the writ must be effective.” The government also determined there was no military need for

Mr. Ameziane’s continued detention and approved him for transfer more than five years ago. In

2009, the Court stayed this case indefinitely at the government’s request based on its inaccurate

representations that Mr. Ameziane would be released expeditiously. Yet the government made

no serious effort to release him during the subsequent four and a half years, and consequently he

filed a motion requesting a court order of release in August 2013. The government succeeded in

delaying the Court’s consideration of the motion for several months, however, until the

government forcibly repatriated Mr. Ameziane to Algeria on December 5, 2013, despite his fear

of persecution.1 The Court then entered a sealed order dated December 9, 2013 (dkt no. 346).

The case remains pending without a final ruling on the merits of Mr. Ameziane’s habeas petition.

As set forth in his attached declaration, Mr. Ameziane has suffered discrete and palpable

harm as a consequence of his forcible transfer to Algeria. Among other things, he was subjected

to physical and psychological abuse not only during the transfer but also immediately upon his

arrival in Algeria. He was then placed in secret detention by the Algerian security services.

1 See Editorial, A Bad Decision at Guantánamo, N.Y. Times, Dec. 6, 2013 (stating Mr. Ameziane’s forcible transfer is “perverse” and reinforces the perception that America flouts the rule of law), available at http://www.nytimes.com/2013/12/07/opinion/a-bad-decision-at-guantanamo.html?_r=0.


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During the period of his secret detention, he was interrogated repeatedly. And when he was not

being interrogated, he was kept in deplorable prison conditions. He became seriously ill as a

result, and, at least initially, after his release from secret detention was bed-ridden and virtually

unable to communicate with family members or his undersigned counsel by telephone.2

In addition to the injustice that he has suffered, the U.S. government left Mr. Ameziane

utterly destitute. It dumped him in Algeria without any resources, and apparently without

arranging for resources prior to his transfer. He currently has no access to medical care, no

proper identification, no money, and no immediate prospect of gainful employment or other

means of self-support. He has had to rely on the charity of his family for virtually every human

need, including food and shelter, but they are not able to care for him on a long-term basis (due

in part to the physical and psychological harm caused by his many years of detention). Mr.

Ameziane arrived in Algeria wearing the detainee uniform he wore at Guantánamo, and but for

clothes that he borrows he would likely still be wearing it. And he must borrow bus fare to

report to the Algerian authorities monthly or he will surely be arrested.3

The U.S. government is aware of Mr. Ameziane’s plight, but has made no apparent effort

to intervene on his behalf or help him in any way. Algeria also notably restricts access by human

rights organizations such as Amnesty International and Human Rights Watch, effectively

preventing them from providing direct humanitarian assistance to Mr. Ameziane and other

2 See Decl. of Djamel Ameziane, Feb. 13, 2014 (attached hereto as Exhibit A). Mr. Ameziane has prepared this declaration by email because he has no other means to provide a written statement to the Court. Counsel has redacted Mr. Ameziane’s email address to protect his privacy, but will provide an unredacted copy of the email to the Court upon request.

3 Additional information regarding Mr. Ameziane is set forth in a sealed supplement filed contemporaneously with this motion, which Mr. Ameziane incorporates herein by reference.


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former Guantánamo detainees (at least one of whom is reportedly homeless).4 Even the

International Committee of the Red Cross has been unable to substantially improve Mr.

Ameziane’s present circumstances.5 This fate, of course, would not have befallen him if he had

been safely resettled in a third country.

Nonetheless, in an effort to mitigate his suffering and move on with his life, Mr.

Ameziane has requested that the U.S. government return money that was seized from him at the

time of his capture. It is money that he earned while living and working legally in Canada,

which he used to support himself in the months after he was denied permanent refuge and forced

to leave that country. He desperately needs this money in order to support his most basic needs

because the U.S. government has callously discarded him after more than a decade of abuse and

indefinite detention without any apparent concern for his well-being, the Algerian government

appears unwilling or unable to assist him, and he has no other immediate means of support.

Although there is no serious dispute that the money is his personal property, or that U.S.

and international law require personal property to be returned upon repatriation, the government

has refused to return it to him “due to the concern that those funds may ultimately be used in a

manner that adversely affects the security of the United States.”6 The government’s position

with respect to the approximately £700 at issue is baseless and contrary to law, and should be

rejected. The Court should provide a habeas remedy in the form of an order requiring the

government to return Mr. Ameziane’s money, or schedule a full hearing on the merits of his

4 See FIDH Press Release, Algeria: Allow Rights Groups to Visit, 11 Feb. 2014, http://www.fidh.org/en/north-africa-middle-east/Algeria/14629-algeria-allow-rights-groups-to-visit.

5 See Ex. A, ¶ 4.

6 Email from the Dep’t of Justice, Jan. 31, 2014 (attached hereto as Exhibit B).


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habeas petition in order to mitigate the collateral consequences of his prior detention. The Court

should also award interest on the funds withheld, and any other relief it deems necessary and

appropriate to address Mr. Ameziane’s injury.

Argument

Mr. Ameziane’s request for a court order compelling the government to return his

personal property is apparently a matter of first impression involving Guantánamo detainees.

However, he is plainly entitled to the return of all his personal property, including money, under

U.S. and international law. Indeed, the government’s refusal to return his money violates the

Geneva Conventions and U.S. law implementing those treaties, as well as other law-of-war

authorities that the government concedes inform and constrain its detention authority under the

Authorization for Use of Military Force (“AUMF”), Pub. L. 107-40, § 2(a), 115 Stat. 224, 224

(2001). The Court also plainly has authority to order the government to return his personal

property pursuant to its equitable habeas authority. To be clear, Mr. Ameziane does not seek

reparations or damages pursuant to this motion. He seeks a habeas remedy that only this Court

can provide, which will enforce an established legal right and alleviate a specific and concrete

injury that he continues to suffer as a result of his prior detention at Guantánamo. An order

granting relief will help restore him to the position that he would have been in had he not been

unlawfully detained at Guantánamo for more than a decade.

The government’s contention that it cannot return Mr. Ameziane’s personal property

because it may be used in a way that could be harmful to the security of the United States is not

only speculative but demonstrably false. First, he needs the money to survive. Second, the

government’s position is not based on anything that Mr. Ameziane has done, but rather on a

general policy applicable to all former detainees from which it is unwilling to deviate in this


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particular case. See Ex. B. Indeed, Mr. Ameziane has done nothing since his transfer to warrant

the government’s purported concerns; rather, until recently he was virtually confined to his

brother’s home and to bed because of his illness caused both by the poor conditions of his secret

detention in Algeria and the terrible years he spent in detention at Guantánamo. The

government’s position instead is based solely on Mr. Ameziane’s prior detention at Guantánamo,

without charge, and its persistent view that he, like all Muslim men and boys sent to

Guantánamo, was lawfully detained as “part of” the Taliban, Al Qaeda or associated forces – a

claim that he rejects. If as an alternative to an order compelling the government to return his

money the Court were to conduct a habeas hearing and conclude that Mr. Ameziane’s prior

detention was unlawful, it would not only alleviate this stigma of his prior detention but also

vitiate the government’s concerns and he would get his money back.

I. Mr. Ameziane Is Entitled to the Return of His Personal Property Under U.S. and International Law

The government has claimed authority to detain men such as Mr. Ameziane at

Guantánamo Bay pursuant to the Authorization for Use of Military Force (“AUMF”), Pub. L.

107-40, § 2(a), 115 Stat. 224, 224 (2001), which permits the use of “necessary and appropriate

force [against a narrow set of groups or individuals] in order to prevent any future acts of

international terrorism against the United States.” As the Supreme Court held in Hamdi v.

Rumsfeld, 542 U.S. 507, 518, 521 (2004), the power to detain may be inferred from the right to

use force under “longstanding law-of-war principles.” The Court further explained that “[t]he

purpose of detention is to prevent captured individuals from returning to the field of battle and

taking up arms once again.” Id. at 518; id. at 519 (although the AUMF “does not use specific

language of detention,” detention “to prevent a combatant’s return to the battlefield is a

fundamental incident of waging war” and thus permitted). The Court concluded that detention is


7

authorized in the “narrow circumstances” where necessary to prevent return to the battlefield, but

may last “no longer than active hostilities.” Id. at 519, 520. It also concluded that indefinite or

perpetual detention is not authorized. Id. at 521.7

The government has long acknowledged that its AUMF detention authority is informed

and limited by these international law-of-war principles. See Resp’ts’ Mem. Regarding the Gvt’s

Detention Authority Relative to Detainees Held at Guantanamo Bay at 1, In Re Guantanamo Bay

Detainee Litigation, No. 08-mc-442 (TFH) (D.D.C. Mar. 13, 2009) (dkt. no. 1689) (“Principles

derived from law-of-war rules governing international armed conflicts, therefore, must inform

the interpretation of the detention authority Congress has authorized for the current armed

conflict.”) (citing Geneva Conventions). The D.C. Circuit has also held that domestic law may

limit the government’s detention authority. See Al-Warafi v. Obama, 716 F.3d 627, 629 (D.C.

Cir. 2013). In addition, domestic and international law both specifically require as part of the

government’s detention authority that a detainee’s property, including money and other

valuables, must be returned to him upon repatriation.

U.S. Department of the Army Regulation 190-8, Enemy Prisoners of War, Retained

Personnel, Civilian Internees and Other Detainees (1 Oct. 1997), is domestic law that constrains

the government’s AUMF detention authority. See Al-Warafi, 716 F.3d at 629. It applies to all

U.S. armed forces, and “implements international law, both customary and codified, relating to

[prisoners of war and civilians] which includes those persons held during military operations

7 As Justice Souter explained in his opinion concurring in the Hamdi judgment, when a court is asked to infer detention authority from a wartime resolution such as the AUMF, it must assume that Congress intended to place no greater restraint on liberty than was unmistakably indicated by the language it used, which, given the qualified “necessary and appropriate” force language of the AUMF, necessarily suggests that AUMF detention authority is equally limited. 542 U.S. at 544 (quoting Ex Parte Endo, 323 U.S. 283, 300 (1944)).


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other than war.” Army Reg. 190-8, § 1-1(b). “The principal treaties relevant to this regulation

are the [Geneva Conventions].” Id. Regulation 190-8 also governs procedures for the transfer

and repatriation of detainees. Id. §§ 3-14 (prisoners of war); 6-16 (civilians). In particular, it

requires that personal property must be returned to the released or repatriated detainee, including

money and other valuables. Id. §§ 3-14(d) (prisoners of war); 6-16(b) (civilians).8

Army Regulation 190-8 is consistent with the longstanding rule under the law of armed

conflict that a prisoner’s property is protected from permanent confiscation. For example, the

annexed regulations to the 1907 Hague Convention provide that all of a prisoner’s personal

belongings, “except arms, horses and military papers, remain their property.” Annex to the

Hague Convention Respecting the Laws and Customs of War on Land art. 4, Oct. 18, 1907, 36

Stat. 2277, 1 Bevans 631. The rule applies specifically in the context of international armed

conflicts, fought between nation-states and governed by the Third and Fourth Geneva

Conventions. See Geneva Convention (III) Relative to the Treatment of Prisoners of War art. 18,

Aug. 12, 1949, 6 U.S.T. 3316 (“Sums of money carried by prisoners of war may not be taken

away from them except by order of an officer, and after the amount and particulars of the owner

have been recorded in a special register and an itemized receipt has been given. . . . and shall be

returned . . . at the end of their captivity.”); Geneva Convention (IV) Relative to the Protection of

Civilian Persons in Time of War art. 97, Aug. 12, 1949, 6 U.S.T. 3516 (“Monies, cheques,

bonds, etc., and valuables in [civilians’] possession may not be taken from them except in

8 In the case of individuals such as Mr. Ameziane, who the government has claimed are not entitled to prisoner-of-war status, the regulation specifically states that “[a]ll personal effects, including money and other valuables,” of the individual must be safeguarded, inventoried and recorded, and “[u]pon release, the [individual] will be given all articles, moneys or other valuables impounded during internment.” Id. §§ 6-3(a), (c)-(e); 6-16(b). Here, the government has returned what little personal property Mr. Ameziane had at Guantánamo, except for his money, which the government still holds. See Ex. B.


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accordance with established procedure. Detailed receipts shall be given therefor. . . . On release

or repatriation, [civilians] shall be given all articles, monies or other valuables taken from them

during internment . . . with the exception of any articles or amounts withheld by the Detaining

power by virtue of its legislation in force. If the property of [a civilian] is so withheld, the owner

shall receive a detailed receipt.”).

State practice also establishes the rule against appropriating a detainee’s property as a

norm of customary international law applicable to non-international armed conflicts, which are

waged with armed groups rather than between nation-states, and which are governed by

Common Article 3 of the Geneva Conventions.9 See Jean-Marie Henckaerts & Louise Doswald-

Beck, 1 Customary International Humanitarian Law Rule 122 (Int’l Comm. of the Red Cross,

Cambridge Univ. Press reprtg. 2009); see also Protocol Additional to the Geneva Conventions of

12 August 1949, and Relating to the Protection of Victims of Non-International Armed

Conflicts, June 8, 1977, art. 4(2)(g), 16. I.L.M. 1442.10

International human rights law likewise further supports the rule that a prisoner’s

property, including money and other valuables, must be returned to him upon release or

repatriation. See, e.g., Standard Minimum Rules for the Treatment of Prisoners art. 43(2),

adopted by the First U.N. Congress on the Prevention of Crime and the Treatment of Offenders

(1955), approved by the U.N. Econ. & Soc. Council, E.S.C. Res. 663(C) (XXIV) (31 July 1957)

and E.S.C. Res. 2076 (LXII) (13 May 1977) (“On the release of the prisoner all [valuables,

clothing and other effects belonging to a prisoner] and money shall be returned to him except in

9 The government concedes that for the purpose of its detention authority at Guantánamo, the ongoing conflict is governed by Common Article 3. See Exec. Order 13,492, § 6, 74 Fed. Reg. 4897, 4899 (Jan. 22, 2009); see also Hamdan v. Rumsfeld, 548 U.S. 557, 628-32 (2006).

10 Examples of state practice relating to Customary International Humanitarian Law Rule 122 are available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule122.


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so far as he has been authorized to spend money or send any such property out of the institution,

or it has been found necessary on hygienic grounds to destroy any article of clothing. The

prisoner shall sign a receipt for the articles and money returned to him.”).

Finally, similar to rules applicable under international law, an individual who is

aggrieved by an unlawful seizure or deprivation of property pursuant to domestic law is entitled

to move for its return when there are no criminal proceedings pending against him. See Fed. R.

Crim. P. 41(g); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987). In ruling on

such a motion, as in exercising its habeas jurisdiction, a court must take into account all equitable

considerations. See 809 F.2d at 1367; In re Singh, 892 F. Supp. 1, 3 (D.D.C. 1995). Moreover,

where a claimant substantially prevails in the proceeding, he may recover interest. See 28 U.S.C.

§ 2465(b)(1)(C); United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 504 (6th Cir.

1998) (“To the extent that the Government has actually or constructively earned interest on

seized funds, it must disgorge those earnings along with the property itself when the time arrives

for a return of the seized res to its owner.”).

Accordingly, it is beyond serious dispute that Mr. Ameziane is entitled to the return of his

money with interest, and any other relief that the Court deems necessary and appropriate.

II. The Court Has Equitable Habeas Authority to Remedy the Injury to Mr. Ameziane Caused by the Deprivation of His Property

There is no serious dispute that this Court has equitable habeas authority to fashion a

practical remedy to mitigate the specific harm to Mr. Ameziane caused by his prior detention.

That remedy can take one of two forms here: an order compelling the government to return his

money, or a favorable ruling on the merits of his habeas petition which would have the same

practical effect of compelling the government to return his money, with interest.


11

As explained in Mr. Ameziane’s motion for release, the Court has equitable habeas

authority to dispose of this case as justice and law require based on its unique facts and

circumstances. See 28 U.S.C. § 2243 (“The court shall summarily hear and determine the facts,

and dispose of the matter as law and justice require.”). Since the 17th Century, courts in England

and America with authority to dispose of habeas corpus petitions have been governed by

equitable principles. See Sanders v. United States, 373 U.S. 1, 17 (1963); Boumediene v. Bush,

553 U.S. 723, 780 (2008) (citing Schlup v. Delo, 513 U.S. 298, 319 (1995)). “Indeed, common-

law habeas corpus was, above all, an adaptable remedy. Its precise application and scope

changed depending upon the circumstances.” Boumediene, 553 U.S. at 779; Jones v.

Cunningham, 371 U.S. 236, 243 (1963) (habeas is not a “static, narrow, formalistic remedy; its

scope has grown to achieve its grand purpose”). In exercising habeas jurisdiction, courts have

equitable discretion to impose flexible, pragmatic remedies that are not limited to an order of

release from custody. See Aamer v. Obama, No. 13-5223, 2014 U.S. App. LEXIS 2513, at *14

(D.C. Cir. Feb. 11, 2014) (“[A]lthough petitioners’ claims undoubtedly fall outside the historical

core of the writ, that hardly means they are not a ‘proper subject of statutory habeas.’”); see also

Brief of Eleven Legal Historians as Amici Curiae Supporting Petitioner, Holland v. Florida, 130

S. Ct. 2549 (No. 09-5327) (citing cases); Boumediene, 553 U.S. at 780 (common-law habeas

courts often did not follow black-letter rules in order to afford greater protection in cases of non-

criminal detention). “The very nature of the writ demands that it be administered with the

initiative and flexibility essential to insure that miscarriages of justice within its reach are

surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969). This Court may therefore

exercise its equitable habeas powers to fashion a practical remedy that compels the government

to return Mr. Ameizane’s money with interest. See also id. at 300 (“[I]n exercising this [habeas]


12

power, the court may utilize familiar procedures, as appropriate, whether these are found in the

civil or criminal rules or elsewhere in the ‘usages and principles of law.’”).

The Court also retains its jurisdiction over this habeas case notwithstanding Mr.

Ameziane’s release from Guantánamo. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 238 (1968)

(holding that “once the federal jurisdiction has attached in the District Court, it is not defeated by

the release of the petitioner prior to completion of proceedings on such application”); id. at 239

(“[The habeas] statute does not limit the relief that may be granted to discharge of the applicant

from physical custody. Its mandate is broad with respect to the relief that may be granted. It

provides that ‘the court shall . . . dispose of the matter as law and justice require’ . . . . [and]

contemplate[s] the possibility of relief other than immediate release from physical custody.”);

Sibron v. New York, 392 U.S. 40, 55 (1968) (holding that the mere possibility that collateral

consequences may exist is sufficient to preserve a live controversy). Indeed, the D.C. Circuit has

assumed that detainees transferred from Guantánamo may continue to pursue their habeas cases

based on a detailed factual showing that they continue to suffer collateral consequences of their

prior detention that are not speculative and may be redressed by the court. See Gul v. Obama,

652 F.3d 12, 16, 18 (D.C. Cir. 2011).

Here, Mr. Ameziane easily satisfies the requirement of showing that his habeas case is

not moot. As explained above, as a direct consequence of his prior detention at Guantánamo and

the government’s persistent claim that he, like all detainees, was properly detained without

charge as part of the Taliban, Al Qaeda or associated forces, the government has refused to

return money that belongs to him. As a consequence, he is presently unable to support himself

and instead must rely on the uncertain, temporary charity of others – even the clothes that he

wears are borrowed. He therefore has a substantial interest either in obtaining a court order


13

directing the government to return his property as required by U.S. and international law, which

is minimally necessary to mitigate the injury caused by his prior detention, or proceeding with a

full habeas hearing to obtain a ruling that his detention was unlawful, which would vitiate the

government’s alleged basis for withholding his funds. See 391 U.S. at 237-38. In either case, as

with the many years he spent in detention despite his approval for transfer and the government’s

representations that he would be released expeditiously, it is clear that the only relief he will

obtain from his present injury is that which this Court compels of the government.

Conclusion

For all of the foregoing reasons, Mr. Ameziane’s motion should be granted and the Court

should order the government to return his money, with interest, or schedule a full habeas hearing

that will ultimately achieve the same result. The Court should also order any other relief that it

deems necessary and appropriate pursuant to its equitable habeas authority.

Date: New York, New York March 7, 2014

Respectfully submitted, /s/ J. Wells Dixon J. Wells Dixon (Pursuant to LCvR 83.2(g)) Shayana D. Kadidal Susan Hu (Pursuant to LCvR 83.2(g)) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 Tel: (212) 614-6423 Fax: (212) 614-6499 [email protected] [email protected] [email protected]

Counsel for Djamel Ameziane


1


DJAMEL AMEZIANE (ISN 310), Petitioner, v. BARACK H. OBAMA, et al., Respondents.

Civil Action No. 05-CV-0392 (ESH)

RESPONDENTS’ OPPOSITION TO PETITIONER’S MOTION FOR GRANT OF

HABEAS RELIEF IN THE FORM OF AN ORDER REQUIRING THE GOVERNMENT TO RETURN PETITIONER’S PERSONAL PROPERTY, AND

CROSS-MOTION TO DISMISS.

INTRODUCTION

On March 7, 2014, Petitioner filed a Motion for Grant of Habeas Relief in the

Form of an Order Requiring the Government to Return Petitioner’s Personal Property

(“Petitioner’s Motion”). See ECF No. 351. Petitioner also filed under seal a Supplement

in Support of Petitioner’s Motion. See ECF Nos. 352, 355. Respondents hereby file their

Opposition to Petitioner’s Motion, see Minute Order of March 21, 2014, and a Cross-

Motion to Dismiss.

On December 5, 2013, Respondents filed a Notice of Transfer of Petitioner

Djamel Ameziane stating that the United States has relinquished custody of Petitioner

and transferred him to the control of the Government of Algeria. ECF No. 345. On

March 7, 2014, Petitioner filed a motion seeking an order granting what Petitioner

describes as habeas relief in the form of an order requiring the Government to return

approximately 700 British pounds that were not returned to Petitioner when he was


2

transferred out of United States custody, as well as payment of interest on these funds

from the date they were seized.1 Alternatively, Petitioner requests a full hearing on the

merits of his habeas petition, claiming that an outcome from the hearing favorable to

Petitioner, in turn, will lead to the return of the money. Conceding that the order he seeks

is a matter of first impression for the Court, Petitioner contends that he is entitled to the

return of his personal property under Army Regulation 190-8 and international law it

implements, and that the Court has equitable habeas authority to order the Government to

return his property. Respondents oppose Petitioner’s Motion and cross-move to dismiss

this case as moot.

Petitioner’s Motion must be denied because his claim for the return of his

personal property is not cognizable as a habeas corpus claim. Petitioner cites to no

habeas case where a court has ordered the return of a prisoner’s or detainee’s personal

property, and courts in every circuit have held that claims for the return of property are

not habeas claims. Because Petitioner’s personal property claim is not a proper habeas

claim, it is barred by 28 U.S.C. § 2241(e)(2), which withdraws court jurisdiction over any

non-habeas claim that relates to any aspect of a detainee’s current or former detention or

transfer. Therefore, the Court does not have jurisdiction over Petitioner’s claim.

In addition to this jurisdictional bar, Petitioner’s appeal to Army Regulation 190-8

as a substantive basis for his claim to return of property is flawed. The regulation cannot

be properly invoked in this particular habeas setting and, in any event, does not require

the judicial relief Petitioner seeks.

1 Petitioner’s recitation of the procedural history of this case prior to Petitioner’s transfer, Petitioner’s Motion at 2, is inaccurate. See Respondents’ Response to Petitioner’s Motion for Order of Release at 3-13 (ECF Nos. 318, 319) (filed under seal).


3

Furthermore, Petitioner’s habeas case is altogether moot and should be dismissed because

the United States has relinquished custody of Petitioner and he has not suffered any

collateral consequence of his detention that can be redressed by this Court. Even if the

Court were to determine or had previously determined that Petitioner was entitled to a

writ of habeas corpus, Department of Defense policy, developed to prevent the potential

use of detainee funds to support terrorist organizations or activities, would still require

that the currency seized from Petitioner at the time of his capture not be returned to him

upon his transfer from United States custody. And, as discussed above, Petitioner’s case

otherwise cannot serve as a proper vehicle for a claim for return of property.

Accordingly, Petitioner has suffered no collateral consequence from his detention that

would be affected by a successful outcome for him in his habeas case or that properly

could be redressed by this Court. Therefore, Petitioner’s case is moot; his Motion should

be denied; and this case should be dismissed.

BACKGROUND

On December 5, 2013, Petitioner was transferred out of United States custody to

the custody and control of the Government of Algeria. Exhibit 1 (Declaration of Jay

Alan Liotta, Principal Director for the Office of Rule of Law and Detainee Affairs in the

Office of the Under Secretary of Defense for Policy) at ¶¶ 3-4. Joint Task Force

Guantanamo (JTF-GTMO) prepares a travel package for all departing detainees that

includes a Koran in the detainee’s language, a blanket, two sets of clothing (pants and

smocks), two pairs of underwear, prayer caps, socks, shower shoes, slip-on shoes, a

towel, washcloth, toothbrush, tooth paste, shaving cream, deodorant, shampoo, razor, and

a comb. Liotta Decl. at ¶ 7. Petitioner received this travel package when he left


4

Guantanamo Bay. Id. at ¶ 8. With the exception of the monetary funds that were seized

from Mr. Ameziane at the time of capture, all remaining items that he had at the time of

capture or later acquired at Guantanamo were transported with him when he left the

detention facility at Guantanamo and returned to Algeria. Id. at ¶ 8. Mr. Ameziane is not

being detained in Algeria. See Petitioner’s Motion at 3; Exhibit A to Petitioner’s Motion

at 6.

Department of Defense policy is to return to departing detainees all of the

property with which they arrived at Guantanamo and all property they accumulated

during their time at the facility, except for three general categories of material:

contraband, potential law enforcement evidence, and money that was in the possession of

a detainee at the time of his capture. Liotta Decl. at ¶¶ 9-11. The policy to retain money

associated with detainees “is based on a strong national security interest in preventing

these funds from being used in a manner that would adversely impact the safety and

security of the United States.” Id. at ¶ 11. Pursuant to this policy, JTF-GTMO continues

to hold 740 British pounds, 429,000 Afghanis, and 2,300 Pakistani rupees that were

seized from Mr. Ameziane at the time of his capture. Id. at ¶ 11.

The policy to retain contraband, law enforcement evidence, and currency is

uniformly applied to all detainees in Department of Defense custody at Guantanamo.

Liotta Decl. at ¶¶ 9, 12. No distinctions are made based on a detainee’s status or whether

they have sought or obtained habeas corpus relief. Id. Further, no distinction has been

made based on the amount of money held by JTF-GTMO in relation to a specific

detainee. Id. at ¶ 12. No detainees who have been transferred or released by the


5

Department of Defense from Guantanamo have ever been provided with inventoried

funds attributable to them upon their departure. Id.

ARGUMENT

I. The Court Does Not Have Jurisdiction Over Petitioner’s Claim for Return of Property.

Petitioner concedes at the outset of his argument that his claim presents “a matter

of first impression involving Guantanamo detainees.” Petitioner’s Motion at 5. Indeed,

Petitioner cites no case in which a habeas court has ordered the return of a former

prisoner’s or detainee’s personal property. In fact, such claims are not proper habeas

claims, and the Court lacks jurisdiction over Petitioner’s claim.

A. Petitioner’s Claim for Return of his Personal Property is Not a Claim that is Cognizable in Habeas Corpus.

As noted above, Petitioner cites to no case in which a habeas court has ordered the

return of a former prisoner’s or detainee’s personal property. In fact, courts have

consistently held that property-related claims are not within the scope of the writ of

habeas corpus, which has historically and consistently been utilized as a means to obtain

release of a natural person from confinement. See, e.g., Rumsfeld v. Padilla, 542 U.S.

426, 435 (2004) (stating that habeas corpus has been “a proceeding against some person

who has the immediate custody of the party detained, with the power to produce the body

of such party before the court or judge, that he may be liberated if no sufficient reason is

shown to the contrary.”) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)).

In an unpublished per curiam opinion in the domestic prison context, the Court of

Appeals concluded that an inmate seeking return of his property through a writ of habeas

corpus had brought a claim for “non-habeas relief.” In re Hill, No. 04-5436, 2005 WL


6

613262, at *1 (D.C. Cir. Mar. 15, 2005). Consequently, the Court of Appeals denied the

habeas petition “because the court has no authority to order the return of petitioner’s

property.” Id. Similarly, also in the prison context, another Judge of this Court has stated

that while “a habeas petition is a vehicle capable of challenging the basis of a

governmental restriction on a person’s liberty,” “[a] habeas petition is not capable of

addressing private property rights . . . .” Prentice v. State of Michigan Court of Appeals,

No. 09-CV-230 (HHK), 2009 WL 1956274 at *1 (D.D.C. July 9, 2009) (Kennedy, J.).

These decisions are consistent with a long line of cases from other jurisdictions

holding that claims for return of lost, damaged, or confiscated property are not cognizable

in a writ of habeas corpus. Indeed, courts in every circuit have held that property claims

cannot be raised in habeas. See, e.g., Whiting v. United States, No. 97-2033, 1998 WL

1281294 at *2 (1st Cir. June 26, 1998) (concluding that “the district court understandably

dismissed the motion [seeking return of property] without prejudice on the ground that it

was not cognizable in a habeas proceeding”) (unpublished); Anaya v. Smith, No.

3:11CV779, 2014 WL 315277 at *27 n.7 (N.D. Ohio Jan. 28, 2014) (holding that claim

challenging the seizure of property “is not cognizable on federal habeas review”);

Weaver v. Sanders, No. CV 13-3269-FMO (JPR), 2013 WL 2147806 at *1-2 (C.D. Cal.

May 16, 2013) (dismissing habeas claim brought by inmate seeking to “get his property

back or receive the fair value of it”); Nance v. Heley, No. 11–CV–1173 (ARR), 2012 WL

2953740 at *2 (E.D.N.Y July 19, 2012) (concluding that “Petitioner’s claim to recover

his personal property is not cognizable under habeas review”); Buchanan v. Johnson, 723

F. Supp. 2d 722, 726-27 (D. Del. 2010) (“Considering that the instant proceeding is one

for federal habeas relief, the court does not have the authority to order the return of


7

petitioner’s property.”); Hall v. Norris, No. 09-CV-4078, 2010 WL 5071201 at *1 (W.D.

Ark. Dec. 9, 2010) (“Because Petitioner's claim for relief seeks the return of forfeited

property, it is not cognizable in a federal habeas corpus proceeding. Reasonable jurists

would not find this conclusion debatable.”); Veal v. Superintendent, No. 3:08-CV-3-TS,

2009 WL 4799935 at *2 (N.D. Ind. Dec. 8, 2009) (“Finally, Veal alleges that there was

approximately $400 worth of personal property taken from his cell. This is in essence a

state tort claim that is not cognizable in this habeas proceeding.”); Starr v. Ward, No. 04-

CV-0787-CVE-PJC, 2006 WL 2474914 at *1 (N.D. Okla. Aug. 25, 2006) (“The Court

finds that claims relating to Petitioner’s dispute over personal property allegedly seized

from Petitioner by Department of Corrections personnel are not cognizable in this habeas

action.”); Olajide v. United States Bureau of Immigration and Customs Enforcement, 402

F. Supp. 2d 688, 694-95 (E.D. Va. 2005) (dismissing immigration detainee’s habeas

claim alleging that “officials have stolen some of his personal property including his

money and luggage”); Bowen v. United States, No. 7:05-CV-37 (CDL), 2005 WL

1676668 at *2 (M.D. Ga. June 29, 2005) (dismissing habeas petition seeking return of

currency because a “writ of habeas corpus is not the proper vehicle for the type of relief

petitioner seeks”); Turner v. Johnson, 46 F. Supp. 2d 655, 675-76 (S.D. Tex. 1999)

(holding that “a petition for a writ of habeas corpus is an improper method to raise” a

claim that a “typewriter and other personal property were confiscated, lost, or destroyed

by prison officials”); Ronson v. Drohan, No. 89-CIV-7842 (RWS), 1990 WL 128925 *1

(S.D.N.Y. Aug. 28, 1990) (holding that inmate’s claims that “he was wrongfully deprived

of property by the State is not considered here, as it is not cognizable by a habeas court”);

Fayerweather v. Bell, 447 F. Supp. 913, 915 (M.D. Pa. 1978) (dismissing inmate’s


8

habeas claim brought under 28 U.S.C. § 2241 “for wilful and wrongful taking of his

personal property”).

Nor is there any support that claims seeking the return of property could be raised

in habeas at common law. See David Clark and Gerard McCoy, The Most Fundamental

Legal Right: Habeas Corpus in the Commonwealth 48 n.95 (2000) (“The remedy is still

limited to persons and cannot be used to reclaim property unlawfully seized by others.”);

see also Ex Parte Watkins, 28 U.S 193 (1830) (stating that the purpose of the writ is “to

liberate an individual from an unlawful imprisonment”). At common law, the writ of

replevin, not the writ of habeas corpus, was the proper procedural vehicle to seek return

of property. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 78 (1972) (“Replevin at common

law was an action for the return of specific goods wrongfully taken or ‘distrained.’ ”).2

Accordingly, Petitioner’s claim for the return of his personal property is not

cognizable in habeas.3

2 Petitioner contends that he is entitled to move for the return of his personal property pursuant to Federal Rule of Criminal Procedure 41(g). Petitioner’s Motion at 10. Even assuming for the sake of argument that an individual formerly detained in armed conflict can invoke that rule, claims under Rule 41(g) are treated as civil claims for return of property, see U.S. v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987), which, as discussed above, are not cognizable in habeas petitions and, as explained below, are barred by 28 U.S.C. § 2241(e)(2). 3 Petitioner claims that he is entitled to interest in addition to the value of the withheld currency, citing 28 U.S.C. § 2465(b)(1)(C). Just as Petitioner’s property claim is not a proper habeas claim, his claim for interest as to the currency at issue is also not a proper habeas claim, and, as explained below, would also be barred by 28 U.S.C. § 2241(e)(2). Furthermore, the statute cited by Petitioner only applies to civil forfeiture proceedings. See Carvajal v. United States, 521 F.3d 1242, 1247 (9th Cir. 2008) (“It is clear from the statutory text that the interest payment provision of CAFRA, 28 U.S.C. § 2465(b)(1)(C), is triggered only when the government institutes civil forfeiture proceedings and a plaintiff substantially prevails.”).


9

B. The Court Does Not Have Jurisdiction Over Petitioner’s Claim for the Return of Money.

As explained above, Petitioner’s claim for the return of the money seized at the

time of his capture is not a claim that is cognizable in habeas. Because the claim is a

non-habeas claim regarding an aspect of his detention at or transfer from Guantanamo

Bay, the Court lacks jurisdiction over the claim under 28 U.S.C. § 2241(e)(2).

Federal courts are courts of limited subject-matter jurisdiction. E.g., Al-Zahrani

v. Rodriguez, 669 F.3d 315, 317-318 (D.C. Cir. 2012). Accordingly, for a federal court

to exercise jurisdiction, “the Constitution must have supplied to the courts the capacity to

take the subject matter and an Act of Congress must have supplied jurisdiction over it.”

Id. Here, through Section 7 of the Military Commission Act of 2006 (“MCA”), 28

U.S.C. § 2241(e)(2), Congress has exercised its constitutional prerogative, not to grant,

but to withdraw from the federal courts jurisdiction to adjudicate non-habeas claims by

Guantanamo detainees regarding aspects of their detention or transfer. Section 7

addresses habeas claims in its subsection (e)(1), while subsection (e)(2) provides:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant.

28 U.S.C. § 2241(e)(2) (emphasis added). The Court of Appeals has squarely held that

section 2241(e)(2) is a valid exercise of congressional power. Al-Zahrani, 669 F.3d at

318-20 (upholding the continuing applicability of the section 2241(e)(2) bar to “our

jurisdiction over ‘treatment’ cases”).


10

Petitioner’s claim for the return of the money that was seized at the time of his

capture, was held by the Government during his detention, and was retained upon

Petitioner’s transfer, see Liotta Decl. at ¶¶ 8-12, is clearly a non-habeas claim relating to

an aspect of his detention or transfer, and, thus, is barred by 28 U.S.C. § 2241(e)(2).4

Therefore, the Court has no jurisdiction over this claim, and it must be dismissed.5

C. Neither Army Regulation 190-8 Nor International Law Requires or Authorizes this Habeas Court to Order the Return of Petitioner’s Personal Property.

Petitioner cites to Army Regulation 190-8 (AR 190-8) and Al Warafi v. Obama,

716 F.3d 627 (D.C. Cir. 2013), for the proposition that the Government’s detention

authority under the Authorization for Use of Military Force, as informed by the laws of

war, is limited by AR 190-8 in that, according to Petitioner, it requires the Government to

return money that was seized upon Petitioner’s capture. See Petitioner’s Motion at 7-8.

Petitioner cites to provisions of AR 190-8 that concern the return of personal property

4 The Court of Appeals’ recent decision in Aamer v. Obama, 742 F.3d 1013 (D.C. Cir. 2014), is not to the contrary. Aamer involved a challenge to the practice of enteral feeding at Guantanamo, and the Court of Appeals’ panel, with one judge dissenting, held that Guantanamo detainees could challenge their conditions of confinement in habeas. Aamer focused solely on the “current scope of statutory habeas” and examined prior Court of Appeals habeas cases to reach the conclusion “that one in custody may challenge the conditions of his confinement in a petition for habeas corpus.” Id. at 1031-32. Accordingly, as explained by the Aamer panel, because 28 U.S.C. § 2241(e)(1) no longer legitimately bars habeas claims by Guantanamo detainees under Boumediene v. Bush, 553 U.S. 723 (2008), Guantanamo detainees can pursue conditions of confinement claims in their habeas cases. Aamer, 742 F.3d at 1030-32. As explained supra with respect to the instant case, however, there is no precedent in statutory habeas or common law habeas for habeas jurisdiction over a claim for the return of personal property. Aamer, therefore, is inapposite. 5 Petitioner appeals to the Court’s equitable powers, suggesting that the Court can use those powers to provide the remedy he seeks. The Court’s equitable powers, however, cannot overcome that Petitioner’s claim is not a proper habeas claim and that jurisdiction over the claim otherwise has been withdrawn by 28 U.S.C. § 2241(e)(2). Cf. Gul, 652 F.3d at 22 (“Equity is not a substitute for meeting the requirements of Article III.”).


11

and effects to enemy prisoners of war (“EPWs”), retained personnel (“RPs”)6, and

civilian security internees (“CIs”). See AR 190-8 §§ 3-14(d), 6-16(b), and 6-3.

Assuming for purposes of argument, but without conceding, that Petitioner may appeal to

provisions of the regulation applicable to EPWs, RPs, and CIs, Petitioner’s reliance on

AR 190-8 and Al Warafi is misplaced, as explained below, and does not give rise to a

proper habeas claim.

1. Army Regulation 190-8 Cannot Be Invoked in this Habeas Case under Al Warafi.

Army Regulation 190-8 performs a number of functions, including to help

implement certain international law obligations of the United States, such as those

reflected in the 1949 Geneva Conventions, with respect to the treatment of EPWs, RPs,

and CIs in the context of armed conflicts to which the Geneva Conventions apply, and

provides that, “[i]n the event of conflicts or discrepancies between this regulation and the

Geneva Conventions, the provisions of the Geneva Conventions take precedence.” AR

190-8 §§ 1-1(a), (b), and (b)(4). In Section 5 of the Military Commissions Act of 2006,

Congress prohibited the invocation of the Geneva Conventions as a source of rights in a

habeas proceeding. See Military Commissions Act of 2006, Pub. L. No. 109-366, sec. 5,

120 Stat. 2600, 2631 (codified at 28 U.S.C. § 2241 note); see also Al Warafi v. Obama,

716 F.3d 627, 629 (D.C. Cir. 2013); Al Adahi v. Obama, 613 F.3d 1102, 1111 n.6 (D.C.

Cir. 2010). The Al-Warafi Court, however, concluded that AR 190-8 expressly

incorporates aspects of the Geneva Conventions relevant to the claims made in that case

6 RPs include certain types of military medical and religious personnel. See AR 190-8 at 33 (defining Retained Personnel).


12

in which the petitioner, a Guantanamo detainee, asserted he was a type of medical

personnel entitled to release. The Court stated as follows:

Army Regulation 190-8 is domestic U.S. law, and in a habeas proceeding such as this, a detainee may invoke Army Regulation 190-8 to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody.

Al-Warafi, 716 F.3d at 629 (emphasis added). Here, of course, Petitioner Ameziane is

not invoking AR 190-8 for the purpose of obtaining his release. Petitioner relies upon

AR 190-8 for the proposition that he is entitled to the return of the money, not for his

release from custody, which has already occurred. Because Petitioner is not utilizing and

cannot utilize AR 190-8 to argue for his release, Petitioner may not invoke the regulation

under the plain language of Al Warafi, and Petitioner further may not appeal in this case

to the Geneva Conventions, as implemented by AR 190-8, as a source of rights to support

his claim for the return of the money.7

7 Even if AR 190-8 were applicable to this case, the Regulation does not substantively validate Petitioner’s claim in this matter because it does not inexorably require the return of all detainee property without qualification. Multiple sections of AR 190-8 contemplate that not all personal property necessarily be returned by a detaining power to a detainee when the detainee is transferred. See AR 190-8 § 3-14(d) (referring to “[a]ll confiscated property that can be released”) (emphasis added); AR 190-8 § 3-14(f) (referring to “confiscated property that cannot be released”); AR 190-8 § 3-14(g)(3) (referring to the disposition of “confiscated property”); AR 190-8 § 6-16(b) (the theater commander may direct “that any impounded currency or articles be withheld”).

Petitioner also mistakenly contends that customary international law supports his position that Respondents are obligated to return the entirety of Petitioner’s property. See Petitioner’s Motion at 9. The authority that Petitioner cites is inapposite, as it focuses on the offense of pillage. See id. (citing Jean-Marie Henckaerts & Louise Doswald-Beck, 1 Customary International Humanitarian Law Rule 122 (Int’l Comm. of the Red Cross, Cambridge Univ. Press reprtg. 2009) (discussing pillage); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–International Armed Conflicts (Protocol II), art. 4(2)(a)(g), June 8, 1977, 1125 U.N.T.S. 609 (listing pillage among other offenses without discussion). Respondents have not pillaged Petitioner’s property, as pillage is defined as “the taking of the personal belongings of detainees with the intent of unlawful appropriation” for “private or


13

2. Any Issue Regarding the Return of Money, in Any Event, is Not for Resolution Through a Habeas Claim.

AR 190-8 also makes clear that if there is a dispute regarding a detainee’s

personal property that is not returned to him upon his transfer, it is not a claim that can be

brought by the former detainee against the detaining power or a claim cognizable in

court. Section 6-3(b)(2) states that “[a]ny claim by a CI for compensation for personal

effects, money, or valuables stored or impounded by the United States and not returned

upon repatriation or any loss alleged to be the fault of the United States or its agents will

be referred to the country to which the CI owes allegiance.” Thus, if there is a dispute

regarding impounded monies, it will be referred to the detainee’s home country for

resolution. A judicial remedy in U.S. courts is not contemplated.

Moreover, the Third Geneva Convention itself does not contemplate a judicial

remedy for Petitioner’s claim. The Article 18 Commentary to Geneva Convention III

(GC III) states as follows regarding the personal articles of prisoners of war after

captivity:

But if such articles and monies are not returned at the end of captivity, the prisoner of war cannot make a claim against the former Detaining Power. It is therefore suggested at the conference of Government Experts that such compensation should be incumbent rather upon the Power of origin of the prisoner concerned, and that it would then be for the Power of origin to arrange for a general solution of the question with the Detaining Power, within the context of the peace treaty.

Art. 18 Commentary to GC III.8

personal use.” See Henckaerts & Doswald-Beck, supra, at 185, 493. As discussed above, Respondents’ seizure of Petitioner’s money is based on legitimate and reasonable security goals. See Liotta Decl. at ¶ 11. 8 Article 18 of Geneva Convention III concerns the property of prisoners of war.


14

Similarly, Article 689 of Geneva Convention III states that “[a]ny claim from a

prisoner of war for compensation in respect of personal effects, monies or valuables

impounded by the Detaining Power under Article 18 [of GC III] and not forthcoming on

his repatriation, or in respect of loss alleged to be due to the fault of the Detaining Power

or any of its servants, shall likewise be referred to the Power on which he depends.” In

the same vein, the commentary on paragraph 2 of Article 68 of Geneva Convention III

states as follows in pertinent part: “In fact, however, at the end of captivity a prisoner of

war will have no opportunity to make a claim against the Detaining Power. The

Convention therefore makes the Power on which he depends responsible for

compensating him. All claims must therefore be referred to the latter Power through the

intermediary of the Protecting Power.”10 At the end of the commentary, it states that

“once the victim has received compensation from the Power on which he depends,[11]

arrangements must be made between the two Powers concerned, under Article 67.”12

For all these reasons, Petitioner’s reliance on AR 190-8 is misplaced. Neither AR

9 Article 68 of Geneva Convention III concerns claims for compensation for prisoners of war. 10 Courts have similarly held that such claims by detainees for the return of personal property are actually claims of the State and not the individual. See Burger-Fisher v. Degussa AG, 65 F. Supp. 2d 248, 273 (D. N.J., 1999) (“[u]nder international law claims for compensation by individuals harmed by war-related activity belong exclusively to the state of which the individual is a citizen.”); id. at 274 (“The war-related claims of individual citizens can be asserted only by their government …”); see also S.N.T. Fratelli Gondrand v. U.S., 166 Ct.Cl. 473, 1964 WL 8545 at 4-5 (Ct.Cl.) (under international law an occupying power can seize property, and the warring powers resolve claims about the property seizure at the end of hostilities.). 11 The term “the Power on which he depends” typically refers to a former detainee’s country of origin or nationality. 12 Article 67 of Geneva Convention III concerns adjustments between the parties to the conflict.


15

190-8 nor the international law it implements requires or authorizes this Court to order

the return of a detainee’s personal property or gives rise to a proper habeas claim.

II. This Case is Moot and Should Be Dismissed.

The United States has relinquished custody of Petitioner, and he is currently in

Algeria and no longer detained. Liotta Decl. at ¶¶ 3-4; Petitioner’s Motion at 3; Exhibit

A to Petitioner’s Motion at 6. Because Petitioner is no longer in U.S. custody, this case is

moot and should be dismissed in its entirety. Petitioner argues that his case is not moot

because he continues to suffer collateral consequences as a result of his prior detention.

See Petitioner’s Motion at 12. For the reasons described below, however, Petitioner has

not suffered any collateral consequences that can be redressed by this Court in this habeas

case, and the case should be dismissed.

In Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011), the Court of Appeals addressed

the issue of mootness with respect to habeas cases by former Guantanamo detainees who

had been transferred out of the custody and control of the United States. The Court

affirmed Judge Hogan’s dismissal of over 100 habeas petitions of former Guantanamo

Bay detainees, holding that the petitioners had suffered no redressable injury under

Article III. Id. at 14. While reserving the question whether the collateral consequences

doctrine applied to former Guantanamo detainees,13 the Court of Appeals held that, even

13 The collateral consequences doctrine arose in the context of statutory habeas review of criminal convictions and provides that release from custody generally moots a habeas petition unless a petitioner continues to suffer “some concrete and continuing injury other than the now-ended incarceration.” See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (interpreting the “in custody” requirement of 28 U.S.C. § 2254). In Gul the Court of Appeals assumed without deciding that the collateral consequences doctrine applies to a habeas petition filed by a detainee. 652 F.3d at 16. Respondents maintain that the collateral consequences doctrine, derived from an understanding of statutory habeas in


16

if the doctrine applied, it could “not save from mootness the petitions filed in these

cases.” Id. at 16.

The Court of Appeals rejected any presumption that a former detainee suffers

collateral consequences, stating that “we cannot merely presume a former detainee faces

collateral consequences sufficient to keep his petition from becoming moot upon his

release.” Gul, 652 F.3d at 17. “A former detainee … must instead make an actual

showing his prior detention or continued designation burdens him with ‘concrete

injuries.’” Id. (quoting Spencer v. Kemna, 523 U.S. 1, 14 (1998)). The Court further

noted that “[a]s no continuing injury is to be presumed …, the burden of demonstrating

jurisdiction is properly borne by the [petitioners].”

Petitioner contends that “as a direct consequence of his prior detention at

Guantanamo and the government’s persistent claim that he, like all detainees, was

properly detained without charge as part of the Taliban, Al Qaeda or associated forces,

the Government has refused to return money that belongs to him” and as a consequence,

he is presently unable to support himself. Petitioner’s Motion at 12. The loss of

Petitioner’s money is not a collateral consequence of his “prior detention or continued

designation” that can be redressed by this Court in this habeas case, however. As

explained above, a claim for the return of personal property is not cognizable in a habeas

corpus case. Additionally, the Government’s retention of the money that was seized at

the time of Petitioner’s capture is independent of any claim by Petitioner to habeas relief

or the outcome of his habeas case. As explained by Jay Alan Liotta, Principal Director

for the Office of Rule of Law and Detainee Policy in the Office of the Under Secretary of the context of criminal convictions in state and federal courts, is inappropriate for application to the context of these wartime detentions. See Gul 652 F.3d at 16.


17

Defense for Policy, Department of Defense, the Department of Defense’s policy has been

and is to retain all monies of former Guantanamo detainees in DoD custody seized upon

the detainees’ capture, regardless of their detention status and whether they have sought

or obtained habeas corpus relief. See Liotta Decl. at ¶¶ 9, 12. Thus, even if this Court

had made or were to make a determination on the merits of Petitioner’s habeas case, any

such determination would not lead to the return of Petitioner’s money under Department

of Defense policy, see id., nor would it give rise to a proper habeas claim for return of the

money, as discussed supra.

As explained by Principal Director Liotta, DoD’s policy of not returning money

to Guantanamo detainees is based on a strong national security interest in preventing

these funds from being used in a manner that would adversely impact the safety and

security of the United States. Liotta Decl. at ¶ 11. Because terrorist organizations such

as al-Qaida rely on financing and support networks to sustain operations and launch

attacks, efforts to counter terrorist financing have played a critical role in U.S.

counterterrorism strategy. Id. These efforts include disrupting terrorist financing

networks and stopping the flow of money to terrorist organizations. Id. Financial

support is integral to terrorist support activities, including those conducted by former

Guantanamo detainees who reengage in terrorist activities or support for such activities,

because money is necessary for recruitment, training, and equipment. Id. (noting

confirmed reengagement in terrorist or insurgent activities of former Guantanamo

detainees). Because money can be as useful to a terrorist organization as a weapon, the

Department of Defense mitigates the threat that a detainee released from Guantanamo


18

may pose by not returning any of his financial instruments or currency that might be used

to adversely impact the safety and security of the United States.14 Id.

In Gul, an issue analogous to that presented in this case arose as to the “No Fly

List.” The former detainees in Gul argued, inter alia, that their habeas cases were not

moot because as long as they were designated as enemy combatants, they would suffer

the collateral consequence of being on the “No Fly List” and thus being barred from

flights entering the United States. Gul, 652 F.3d at 19. The Court of Appeals, however,

rejected this argument because an order granting a former detainee’s habeas petition

would not lead to his removal from the “No Fly List” Id. The Court explained that “‘any

individual who was a detainee held at … Guantanamo Bay’” id. (quoting 49 U.S.C. §

44903(j)(2)(C)(v)), was to be included on the “No Fly List.” Thus, petitioners would be

“barred from flights entering the United States regardless of whether a court declares they

were unlawfully detained.” Id. The Court further explained that “[a]n order granting a

detainee’s habeas petition would not mean his exoneration, nor would it be a

determination he does not pose a threat to American interests; it would mean only that the

Government has not proven the detainee more likely than not” satisfied the Authorization

for Use of Military Force, (“AUMF”), Pub. L. No. 107-40, 115 Stat. 224 (2001), 14 Because DoD’s policy implements the mitigation of threat of Guantanamo detainees transferred from United States custody, the matter is properly vested in the Executive, and judicial intervention with respect to the policy would not be appropriate. Cf. Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010) (“Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.”); Al-Quraishi v. Nakhla, 728 F. Supp. 2d 702, 721 (D. Md. 2010) (“Since the power to seize or destroy enemy property is so broad, military commanders enjoy ample discretion to determine what property should be seized or destroyed to further the war effort without giving rise to civil liability.”); see also Ludecke v. Watkins, 335 U.S. 160, 170 (1948) (analyzing a detainee’s “potency for mischief” is a matter “of political judgment for which judges have neither technical competence nor official responsibility”).


19

detention standard, including being “‘part of’ a force associated with al Qaeda or the

Taliban.” Id.

By analogy, here, DoD’s longstanding policy is to not return money to former

Guantanamo detainees upon their transfer or release regardless of their detention status or

whether they have been granted a writ of habeas corpus. Liotta Decl. at ¶¶ 9, 12. Similar

to the “No Fly List,” the policy applies to all detainees who have been held at

Guantanamo by the Department of Defense.15 Thus, any determination on the merits of

Petitioner’s habeas case would not lead to the return of Petitioner’s money under

Department of Defense policy, nor would it give rise to a proper habeas claim for return

of the money, as discussed supra. Petitioner, therefore, has not established any concrete

injury from his detention that can be redressed by this habeas court.

Because the United States has relinquished custody of Petitioner and Petitioner

cannot establish any collateral consequence of his detention that can be redressed by this

habeas court, this case is moot and should be dismissed.

CONCLUSION

For the reasons explained above, Petitioner’s Motion should be denied and

Respondents’ Motion to Dismiss should be granted.

Dated: April 11, 2014 Respectfully submitted,

STUART F. DELERY Assistant Attorney General

15 Petitioner concedes that “the government’s position is not based on anything that Mr. Ameziane has done, but rather on a general policy applicable to all former detainees,” and that the Government’s position “is based solely on Mr. Ameziane’s prior detention at Guantanamo . . . .” Petitioner’s Motion at 5-6.


20

JOSEPH H. HUNT Branch Director

TERRY M. HENRY Assistant Branch Director /s/ Daniel M. Barish

ANDREW I. WARDEN (IN Bar No. 23840-49) DANIEL M. BARISH (D.C. Bar No. 448263)

United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530 Tel: (202) 305-8970 Fax: (202) 616-8470 [email protected] Attorneys for Respondents



––––––––––––––––––––––––––––––––––––––––– x

Civil Action No. 05-392 (ESH)

DJAMEL AMEZIANE,

Petitioner,

v. BARACK OBAMA, et al.,

Respondents.

: : : : : : : : : : :

––––––––––––––––––––––––––––––––––––––––– x

REPLY IN FURTHER SUPPORT OF MOTION FOR GRANT OF HABEAS RELIEF IN THE FORM OF AN ORDER REQUIRING THE GOVERNMENT TO

RETURN PETITIONER’S PERSONAL PROPERTY, AND OPPOSITION TO THE GOVERNMENT’S CROSS-MOTION TO DISMISS THIS HABEAS CASE

Petitioner Djamel Ameziane, by and through his undersigned counsel, respectfully

submits this memorandum (1) in reply in further support of his motion for an order granting

habeas relief in the form of an order requiring the government to return his personal property,

and (2) in opposition to the government’s cross-motion to dismiss his habeas petition. Mr.

Ameziane’s motion should be granted and the government’s cross-motion should be denied.

Preliminary Statement

Mr. Ameziane has filed a motion to get his money back because the government has

unreasonably withheld it since his transfer five months ago. It may not seem like a large sum,

but it is his life savings and he needs it in order to survive in Algeria – to purchase food and

clothing, and support other basic human needs. In its opposition brief, the government does not

dispute that it left Mr. Ameziane utterly destitute, with virtually nothing but his prison uniform;

that it has the money at issue, including approximately £700 (GBP); and that the money is his


2

personal property. The government also concedes that the money was not withheld as

contraband or law enforcement evidence, or based on his alleged conduct. In addition, the

government does not seriously dispute that the return of Mr. Ameziane’s money upon transfer is

contemplated by domestic law, the laws of war, and human rights law, or that the Court has

equitable habeas authority to fashion a practical remedy as law and justice require here.

The government claims that it has withheld Mr. Ameziane’s money pursuant to a

purported policy that the Defense Department applies to all Guantánamo detainees without

distinction. The government concedes that the policy is not the subject of any formal Defense

Department issuance, but has failed and refused to provide other information about it, including

whether or where it is memorialized, what it actually says, whether or when or how it was

adopted and by whom, whether exceptions to the policy exist or have been made previously, and

whether it has the force of law.1 Indeed, it is unclear whether an agency rule or policy actually

exists, or whether this is merely a self-serving determination (or perhaps a litigation position)

offered for this particular case by a Defense Department official who seems to believe that all

Guantánamo detainees are potentially dangerous terrorists because they were held at

Guantánamo.2 But in any event the alleged policy is not entitled to deference as a matter of law.3

The government also contends that even if domestic and international law provide for the

return of a detainee’s money and other personal property upon transfer, those authorities do not

1 See Email from government counsel refusing to provide discovery (attached as Reply Ex. A).

2 See Decl. of Jay Alan Liotta ¶ 11 (attached to Gvt. Br.) (dkt. no. 357-1) (“Liotta Decl.”).

3 To the extent that the Court determines the “policy” is relevant to its resolution of Mr. Ameziane’s motion or the government’s cross-motion, Mr. Ameziane requests that the Court order the government to provide discovery or schedule an evidentiary hearing so that Mr. Ameziane may question Mr. Liotta about the policy. See 28 U.S.C. §§ 2243, 2246.


3

contemplate a judicial remedy in U.S. courts. The government is wrong as a matter of law, and

in any event does not address many of the arguments cited by Mr. Ameziane in his motion.

In addition, the government contends that the Court lacks jurisdiction to compel the

return of Mr. Ameziane’s money. The government argues that his claim is not cognizable in

habeas, but ignores that its sole basis for withholding his money (Al Qaeda uses money to launch

attacks) is inextricably intertwined with a central question tested by this habeas case (whether

Mr. Ameziane was part of Al Qaeda). The government alleges that “al-Qaeda rel[ies] on

financing and support networks to sustain operations and launch attacks”; it is “possible that

former detainees will use their returned money to help finance terrorist activities”; money is as

“dangerous[ ] as a weapon”; and retention “mitigates the threat that a detainee released from

Guantánamo Bay may pose by removing from his possession any . . . currency that might be

used to adversely impact the safety and security of the United States.”4

Mr. Ameziane filed this habeas case to challenge the legality of his detention and erase

any notion that he is a terrorist or terrorist sympathizer, and the government cites no authority

barring this Court from granting his request for relief.

The government finally argues that Mr. Ameziane’s motion should be denied and his

habeas case should be dismissed as moot because he has been released from Guantánamo, he

cannot establish any collateral consequence of his prior detention that is redressible by a

favorable ruling on his habeas petition, and the Court lacks jurisdiction over non-habeas claims

pursuant to 28 U.S.C. § 2241(e)(2). The government’s arguments should be rejected for several

reasons, including because § 2241(e)(2) is unconstitutional and therefore void. Construing the

4 Liotta Decl. ¶ 11.


4

Court’s habeas authority to afford the limited relief requested would avoid any such difficult

constitutional questions.

In sum, if the government believes that Mr. Ameziane presents a possible risk to the

United States, it may employ well-established, congressionally-authorized procedures to block

the assets of specially designated terrorists, which, unlike the government’s unilateral action

here, would trigger legal remedies that would allow him to contest the seizure and recover his

money. The government has not done so, of course, because Mr. Ameziane poses no threat.

Argument

I. The Government Does Not Seriously Dispute that U.S. and International Law Contemplate the Return of Mr. Ameziane’s Personal Property, and No Authority Prohibits this Court from Granting Habeas Relief to Enforce that Right The government contends that the Court lacks habeas jurisdiction to order the return of

Mr. Ameziane’s money. It claims that neither Army Regulation 190-8 nor international law

requires or authorizes the Court to order return of the money. The government also argues that

Mr. Ameziane’s claim is not cognizable in habeas. The government is wrong in each respect.

A. The Government Has Waived Opposition to Several Arguments Raised by Mr. Ameziane in Support of His Entitlement to the Return of His Money

As an initial matter, Mr. Ameziane argues in his opening brief that he is entitled to the

return of his money under the 1907 Hague Convention, the Fourth Geneva Convention, and

international human rights law. See Mot. at 8-10. Because the government does not address

these arguments in its brief, the Court should deem them conceded and any opposition waived.

The government likewise does not dispute that the Court has broad, equitable authority to order

habeas relief that is not limited to an order of release from custody; that the Court may dispose of

this habeas case as law and justice require; and that the Court may utilize ordinary civil rules in


5

order to fashion appropriate relief, including an award of interest on the money withheld. Id. at

10-12 (citing 28 U.S.C. § 2243 and Harris v. Nelson, 394 U.S. 286, 291 (1969)).

B. Al-Warafi Does Not Bar Mr. Ameziane’s Reliance on Army Regulation 190-8

The government argues that Army Regulation 190-8 cannot be invoked in this habeas

case under Al-Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013). The government points to

language from that decision stating that “a detainee may invoke Army Regulation 190-8 to the

extent that the regulation explicitly establishes a detainee’s entitlement to release from custody.”

Id. at 629. Citing no other authority, the government asserts that this language means Mr.

Ameziane may not invoke the regulation because he is not arguing for release. Gvt. Br. at 12.

But Al-Warafi did not involve the same issues as Mr. Ameziane’s motion, and as such the Circuit

had no opportunity to prescribe any limit to the applicability of Army Regulation 190-8. There

is also no basis for a court to conclude that the regulation may be invoked only in part by a

habeas petitioner who seeks an order of release, or may be enforced by a U.S. court only to the

extent that it compels an order of release. The regulation is domestic U.S. law that applies in its

entirety. See Al-Bihani v. Obama, 619 F.3d 1, 12 (D.C. Cir. 2010) (Kavanaugh, J., concurring in

the denial of rehearing en banc) (“[A]cting pursuant to congressional authorization, the

Executive Branch has promulgated numerous legally binding rules that regulate wartime conduct

of the military [including Army Regulation 190-8]. . . . Those laws, along with many other

statutes and regulations, together constitute a comprehensive body of domestic U.S. laws of

war.”); id. at 13 (“[D]omestic U.S. law [is] enforceable in U.S. courts.”); id. at 14 n.3 (190-8 has

“force of law”); see also Service v. Dulles, 354 U.S. 363, 388 (1957) (agency is obligated to

follow its regulations and may not selectively apply their provisions). Habeas relief is also not

limited to orders of release. See Aamer v. Obama, 742 F.3d 1023, 1030 (D.C. Cir. 2014)


6

(“[A]lthough petitioners’ claims undoubtedly fall outside the historical core of the writ, that

hardly means they are not a ‘proper subject of statutory habeas.’”).

C. The Government Misreads U.S. and International Law, Which Are Intended to Facilitate Rather than Limit the Return of a Detainee’s Personal Property

The government also argues that Army Regulation 190-8 and the Third Geneva

Convention provisions that it implements as domestic law many not be judicially enforced

because disputes regarding impounded money must be referred to a detainee’s home country for

resolution. Gvt. Br. at 2, 13-14. The government further implies that resolution by the

detainee’s home country is the only method of resolution, which is plainly wrong. Nothing in

the regulation or under international law more generally purports to bar a judicial remedy in U.S.

courts. Indeed, Al-Warafi illustrates the contrary – a court must apply Army Regulation 190-8

because it has the force of law. The purpose of the regulation and international law that it

implements, both treaty-based and customary, is unambiguously to ensure that detainees held

during armed conflict are able to get their money and other personal property back upon

repatriation. See Mot. at 7-10 (citing provisions for return of money).5

The government also misreads the specific provisions on which it relies. It cites § 6-

3(b)(2) of Army Regulation 190-8, which states in part that disputes about compensation for lost

or impounded money will be referred to the detainee’s home country. The government also cites

the Commentary to Article 18 of the Third Geneva Convention, which likewise states in part that

5 Citing Section 5 of the Military Commissions Act of 2006, the government argues that a detainee may not invoke the Geneva Conventions as a source of rights. Gvt. Br. at 11-12. Putting aside the fact that Mr. Ameziane relies on domestic law as a source of rights, this provision is unconstitutional because it prescribes “rules of decision to the Judicial Department” and is tantamount to “allowing one party to a controversy to decide it in its own favor.” United States v. Klein, 80 U.S. 128, 146 (1872). The provision also notably contravenes Hamdan v. Rumsfeld, 548 U.S. 557, 630-32 (2006), which finally resolved the question of whether Common Article 3 of the Geneva Conventions applies in these cases.


7

if money is not returned at the end of captivity, a detainee “cannot make a claim against the

former Detaining Power.” Gvt. Br. at 13. But contrary to the government’s contention, these

provisions do not purport to establish a legal barrier to seeking recovery from the Detaining

Power. Rather, as the Commentary plainly shows these provisions recognize that at the end of

hostilities between nation-states a detainee may not as a practical matter have an opportunity to

seek relief from the Detaining Power (because he may not have time before transfer, or may

already have been returned home, or may otherwise lack the ability to bring a claim directly

against the Detaining Power in the war’s aftermath). See Int’l Comm. of the Red Cross,

Commentary on Geneva Convention (III) Relative to the Treatment of Prisoners of War 170-71

(Jean S. Pictet ed. 1960) [“Commentary”]. Thus, the Commentary “suggest[s]” that the

detainee’s own country should take responsibility for compensating him, and “a general

solution” to such claims should be worked out between state parties to the conflict “within the

context of [a] peace treaty” because “[t]his solution would certainly be more advantageous for

the prisoner of war.” Id. at 171 (emphasis added). In other words, these provisions are intended

to help detainees get their property back rather than to limit or prohibit them from doing so.6

Any suggestion that Mr. Ameziane must get his money back in the context of a peace

treaty also makes no sense in the context of a war without apparent end in which the United

6 The government also cites the Commentary to Article 68 of the Third Geneva Convention. Gvt. Br. at 14. That provision recognizes that if money is not returned at the end of captivity the prisoner of war retains the right to make a claim for it based on a receipt provided to him at the time of his transfer; but “[i]n fact, however, at the end of captivity a prisoner of war will have no opportunity to make a claim against the Detaining Power” and thus must have a mechanism for obtaining relief in the context of a peace treaty negotiated between the state parties to the conflict. Commentary at 337 (emphasis added). Again, the obvious reading of this provision is to ensure that personal property including money is returned to detainees at the time of their repatriation in the most advantageous way possible rather than to restrict their ability to get it back based on their status as former prisoners (which, of course, would make no sense at the end of hostilities).


8

States claims to be engaged in a world-wide armed conflict with a non-state actor such as Al

Qaeda. See Gvt. Br. at 14 n.10 (citing cases in which war reparations claims were extinguished

by peace treaties at the end of hostilities and thereby became claims of the state).

Customary international law further confirms that detainees like Mr. Ameziane are

entitled to the return of their money upon repatriation. See Mot. at 9 (citing ICRC Customary

International Humanitarian Law Rule 122). The government attempts to distinguish Rule 122 on

the ground that it prohibits pillage, which involves unlawful appropriation of property. Gvt. Br.

at 12 n.7.7 But again, the government reads this provision too narrowly to restrict a detainee’s

ability to get his money back rather than to ensure its safekeeping during detention and facilitate

its return upon transfer. As state practice relating to Rule 122 illustrates, the prohibition against

pillage in the context of detained persons is not so limited. Indeed, in non-international armed

conflict many states (notably including close U.S. allies Canada, France, Israel and the United

Kingdom) appear simply to refer back to the Third Geneva Convention and principles of armed

conflict applicable to prisoners of war. See Mot. at 9 n.10 (examples of state practice available at

http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule122). For example, the United Kingdom

appears to apply the procedures for processing prisoners of war and safeguarding their personal

property, and regulations like those incorporated in Army Regulation 190-8 that guarantee the

return of the property upon repatriation:

Money that is the private property of the prisoner of war is either credited to his account or returned to him at the end of captivity. . . . Articles of value may be taken for safe custody only. A record must be made and a receipt given. The articles must be returned intact at the end of captivity.

7 Rule 122 addresses pillage only in the context of property belonging to civilians and persons “hors de combat,” who are deprived of their liberty; pillage as a prohibited method of warfare is addressed separately in Customary International Humanitarian Law Rule 52 (available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule52).


9

Id.; see also United Kingdom Ministry of Defence, The Joint Service Manual of the Law of

Armed Conflict §§ 8.25(g), (h) (2004).8

D. There Is No Serious Dispute that this Court Has Statutory and Common Law Habeas Jurisdiction to Grant Relief

The government argues that Mr. Ameziane’s motion for the return of his money is not

cognizable in habeas. Gvt. Br. at 5-8. The government is wrong for several reasons.

First, to the extent that the government continues to suggest that habeas relief is limited to

an order of release, see id. at 5, 9, that argument has been squarely rejected by the D.C. Circuit.

See Aamer v. Obama, 742 F.3d 1023, 1030 (D.C. Cir. 2014) (“[A]lthough petitioners’ claims

undoubtedly fall outside the historical core of the writ, that hardly means they are not a ‘proper

subject of statutory habeas.’”). Mr. Ameziane’s claim is also plainly cognizable in habeas

because the harm flows directly (and exclusively) from the fact of his prior detention. See id. at

1036 (“The illegality of a petitioner’s custody may flow from the fact of detention, the duration

of detention, the place of detention, or the conditions of detention . . . . In all such cases . . . he

may employ the writ to remedy such illegality.”) (citations omitted). Indeed, taken to its logical

extreme there can be no serious question that the government’s decision to withhold a detainee’s

property would operate as a seizure of his “corpus” and fall within the core of the Court’s habeas

jurisdiction – for example, if the government decided unilaterally to withhold upon transfer a

detainee’s clothing or essential medication, or perhaps a prosthetic limb, such that the ultimate

consequence of the government’s conduct could foreseeably include death or bodily harm. Like

the concrete harm outlined in Mr. Ameziane’s opening brief, such “significant restraints” exceed

8 As in this country, the United Kingdom also recognizes that the law of armed conflict may be enforced through civil litigation. Id. § 16.1(h). See also Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (invalidating Guantánamo military commissions for failure to comply with the Uniform Code of Military Justice or Common Article 3 of the Geneva Conventions).


10

those ordinarily imposed on the public (including other former prisoners or parolees), and “are

enough to invoke the help of the Great Writ.” Jones v. Cunningham, 371 U.S. 236, 242-43

(1963) (holding that habeas includes non-physical governmental restraints on an individual’s

liberty, such as conditions of parole); id. at 243 (“Of course, that writ always could and still can

reach behind prison walls and iron bars. But it can do more. It is not now and never has been a

static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose – the

protection of individuals against erosion of their right to be free from wrongful restraints upon

their liberty. While petitioner[ ] [has been released] from immediate physical imprisonment, it

imposes conditions which significantly confine and restrain his freedom.”).

As noted above, the government also does not dispute that the Court has broad, equitable

habeas authority to fashion appropriate relief based on the facts and circumstances of the case,

and in doing so may utilize or analogize to ordinary civil rules to award relief such as interest on

the money withheld. See supra pp.4-5; Mot. for Release at 10-12 (redacted) (dkt. no. 343-1)

(citing 28 U.S.C. § 2243 and Harris v. Nelson, 394 U.S. 286, 291 (1969)). The government

likewise does not address Mr. Ameziane’s claim that a court’s general equitable powers may be

invoked in order to seek the return of property. See Mot. for Release at 10 (redacted) (dkt. no.

343-1) (citing United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987)).

The government instead argues that because no habeas court has granted the specific

relief that Mr. Ameziane seeks here, he has not asserted a proper habeas claim. Gvt. Br. at 2, 5,

10 n.4. In this particular context, however, the fact that no court has granted a Guantánamo

detainee’s request for the return of his property is meaningless because to our knowledge no


11

detainee has made such a request to the courts previously.9 In addition, at common law habeas

corpus afforded broad relief appropriate to the circumstances of the particular case. See Paul D.

Halliday, Habeas Corpus: From England to Empire 176 (2010) (“[The] King’s Bench issued the

writ by reasoning not from precedents, but from the writ’s central premise: that it exists to

empower the justices to examine detention in all forms. . . . There were no real precedents, but

there was nothing any more surprising about using the writ [in evolving ways].”). Indeed,

habeas ensures that “errors [are] corrected and ‘justice should be done’ . . . even where law ha[s]

not previously provided the means to do so. . . . There was and is another word for this vast

authority to do justice, even in the absence of previously existing rules or remedies: equity.” Id.

at 87; Boumediene v. Bush, 553 U.S. 723, 780 (2008) (habeas courts not constrained by black-

letter rules from providing greater protection in cases of non-criminal detention); Jones v.

Cunningham, 371 U.S. 236, 243 (1963) (habeas is not a “static, narrow, formalistic remedy; its

scope has grown to achieve its grand purpose”). See generally Br. of Legal Historians and

Habeas Corpus Experts as Amici Curiae Supporting Pet’r’s Petition for Writ of Certiorari,

Trinidad y Garcia v. Thomas, 133 S. Ct. 845 (Nov. 8, 2012) (No. 12-6615) (available at

http://www.lawfareblog.com/wp-content/uploads/2012/11/Trinidad-y-Garcia-Cert-Amicus.pdf).

9 Counsel are informed that at least two former detainees requested the return of their property, which the government denied that it possessed, and no further relief was pursued in court. This is not to say that the government has not left other detainees utterly destitute. See The Report of the Constitution Project’s Task Force on Detainee Treatment ch. 8, at 284 (2013) (quoting former detainee from the UK Bisher al-Rawi: “When I was [first] released from Guantánamo, I did not have a penny and I did not have any clothes. That’s a fact, I only had the clothes that were on me. Nothing else and not a penny in my pocket. And I was [47] years old . . . and not a penny in my pocket. . . . [Most of the people] leaving GTMO . . . they haven’t got anything. There must be a system to assist them to become normal.”) (alterations in original) (available at http://detaineetaskforce.org/pdf/Full-Report.pdf).


12

The government’s contention that habeas courts have barred claims such as Mr.

Ameziane’s is also incorrect. In support of its argument, the government cites several mostly-

pro se prisoner cases, none of which is binding on this Court and none of which supports the

sweeping proposition for which the government cites it. Gvt. Br. at 5-8. Not a single case cited

by the government is remotely illustrative or relevant to the instant case, where the government

has wrongfully withheld a detainee’s property based on the mere fact of his prior detention,

which he claims was unlawful. Rather, for example, the cases variously involve petitioners who

do not appear to have been imprisoned; who alleged incomprehensible claims; who alleged

“mere negligence” and other “tort claims” again prison officials for lost property; who made

claims for property that either did not belong to them, was seized as law enforcement evidence,

or was properly retained on the merits; and whose habeas claims were dismissed for unrelated

reasons including mistaken filing, failure to exhaust state remedies, and res judicata or collateral

estoppel. Other decisions reject habeas jurisdiction over conditions of confinement claims,

which, as noted, is squarely addressed in Aamer. And none provides meaningful analysis of

whether claims to recover property are cognizable in habeas; the issues are summarily resolved.

In the case In re Hill, No. 04-5436, 2005 U.S. App. LEXIS 4280 (D.C. Cir. Mar. 14,

2005), for example, a per curiam opinion that was four sentences long, the D.C. Circuit

dismissed a prisoner’s pro se case because it was not filed in the proper district where his

immediate custodian was located. The court also dismissed his claim for “non-habeas relief,”

without prejudice, “because the court has no authority to order the return of petitioner’s

property.” But the court offered no explanation of what property was at issue or what specific

form of relief was requested with respect to the property. Moreover, it seems that the case below

was docketed not as a habeas case but as an action pursuant to 42 U.S.C. § 1983, which was


13

promptly dismissed by Judge Collyer (apparently on the same day that it was docketed). See Hill

v. United States, No. 04-cv-01349 (D.D.C.).10 Accordingly, the D.C. Circuit did not publish its

opinion because the panel concluded it lacked precedential value. See D.C. Cir. R. 36(e)(2).

In sum, the government cites no authority that would prohibit this Court from exercising

habeas jurisdiction over Mr. Ameziane’s motion for the return of his money. To the contrary,

the Court has equitable habeas authority to grant relief as justice requires in this case given the

truly appalling nature of what has happened to Mr. Ameziane. The Court should further interpret

its habeas authority, including its authority under 28 U.S.C. §§ 2241 and 2243, broadly to avoid

the serious constitutional problems would otherwise arise concerning § 2241(e)(2). See infra

Part III; Zadvydas v. Davis, 533 U.S. 678, 689-90 (2001) (construing statute to avoid serious

constitutional concerns); Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (construing statute

concerning aliens not formally admitted to the United States to avoid constitutional issues).

II. This Habeas Case Is Not Moot Because the Court May Grant Effective Relief

As the D.C. Circuit held in this case, “a case is not moot unless it is impossible for the

court to grant any effectual relief whatever.” Ameziane v. Obama, 699 F.3d 488, 492 (D.C. Cir.

2010) (quotation marks omitted). Citing Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011), the

government argues that Mr. Ameziane’s habeas case should be dismissed because he is no longer

detained at Guantánamo and he has not suffered any collateral consequences of his prior

detention that can be redressed by the Court. Gvt. Br. at 3, 15-19. The government claims that

the loss of Mr. Ameziane’s life savings cannot be remedied by the Court because even if he

prevailed in habeas the government would not return his money pursuant to its “policy” to retain

the money of any detainee held at Guantánamo regardless of the facts and circumstances of the

10 It appears from the District Court docket that the petitioner filed numerous pro se actions.


14

particular case. Id. at 16-17. To be clear, the government claims the right to retain the property

of anyone ever held at Guantánamo, whether mistakenly brought there or not, including the

proverbial little old lady in Switzerland who unwittingly donates money to what she thinks is a

charity that helps orphans in Afghanistan, whom the government once claimed authority to

detain for the duration of hostilities. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d

443, 475 (D.D.C. 2005). The government’s contention is as overbroad as it is baseless.11

11 The government continues to argue that the collateral consequences doctrine should not apply to Guantánamo detainee cases. Gvt. Br. at 15 n.13. Mr. Ameziane contends it does apply, that collateral consequences should be presumed, and that the burden of proof to establish mootness should be on the government. The D.C. Circuit held in Gul that collateral consequences would not be presumed and that a detainee must make an actual showing that his prior detention or continued enemy-combatant designation burdens him with concrete injuries, but it did so because “Guantanamo and designation as an enemy combatant are recent phenomena; we have no basis for inferring they routinely have collateral consequences.” 652 F.3d at 17. Whatever the case may have been at the time Gul was decided, there is now a clear factual record of the burdens and disabilities that former detainees continue to suffer upon their release. See, e.g., The Report of the Constitution Project’s Task Force on Detainee Treatment ch. 8 (2013) (available at http://detaineetaskforce.org/pdf/Full-Report.pdf). As the government’s brief makes clear, the Guantánamo cases are unique and simply unprecedented with regard to the damaging stigma that is associated with prior detention – stigma that would be mitigated if not eliminated by a court ruling that a detainee’s detention was unlawful. See Gvt. Br. at 17-18 (suggesting all detainees held were by definition part of Al Qaeda and therefore present a risk of “reengag[ing]”). For example, the harm includes irresponsible recidivism claims and bare allegations of involvement in controversial incidents despite an admitted lack of any supporting evidence. See, e.g., Liotta Decl. ¶ 11 (reciting wildly overblown recidivism statistics); Leaving Guantánamo: Policies, Pressures and Detainees Returning to the Fight, House Armed Servs. Comm., 112th Congr. (Comm. Print 2012) (same). Compare also, e.g., Adam Goldman, Former Guantanamo Detainee Implicated in Benghazi Attack, Wash. Post, Jan. 7, 2014 (“U.S. officials suspect that a former Guantanamo Bay detainee played a role in the attack on the American diplomatic compound in Benghazi, Libya.”), with David D. Kirkpatrick, U.S. to List Libyan Groups and Militant Tied to Benghazi Attack as Terrorists, N.Y. Times, Jan. 8, 2014 (“The designation was also expected to apply to . . . a former inmate at the United States military prison in Guantánamo Bay . . . . but officials briefed on the designations and the intelligence reports said that there was no evidence linking him to the attack.”) (emphasis added).


15

Mr. Ameziane has demonstrated actual harm that may be remedied by an order of this

Court granting him habeas relief. As explained in his opening brief, Mr. Ameziane has been

forced to rely on the uncertain, temporary charity of others to support himself since his forced

transfer because the government will not give back his money. The government concedes in its

opposition brief that it has withheld the money not based on Mr. Ameziane’s conduct at any time

but rather based on the fact that he was detained at Guantánamo for about twelve years. See

Liotta Decl. ¶ 12. Asserting in substance that everyone held at Guantánamo was part of Al

Qaeda, the government contends that retention of detainees’ money is necessary to mitigate the

threat that the detainee will use that money to harm the United States upon release, “[b]ecause

money can be [ ] useful to a terrorist organization” like Al Qaeda. Gvt. Br. at 17. The logic that

Guantánamo detainees are terrorists because they were held at Guantánamo is circular, of course,

and the purported concern that they would use their money to harm the United States rather than

buy clothes and food is entirely speculative without reference to the facts of their particular

cases. But the harm to former detainees like Mr. Ameziane is actual and undisputed here.

There is also no serious question that the Court may remedy the harm to Mr. Ameziane

by granting habeas relief and ordering the government to return his property. Alternatively, the

Court could grant his habeas petition on the ground that he is not part of Al Qaeda, the Taliban or

associated forces, which would vitiate the government’s purported basis for withholding his

money. Any suggestion that seizure of Mr. Ameziane’s money was a necessary pre-condition of

his transfer is baseless – as reflected by the government’s prior, unqualified representations that

there was no longer any military need to detain him and his detention was no longer at issue,

seizure of his money was plainly irrelevant to his transfer. Indeed, having relied on those

representations as a basis to avoid a ruling on the merits of his habeas petition, the government


16

should be judicially estopped from asserting now that Mr. Ameziane presented a threat that

required retention of his money. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001)

(“Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining

that position, he may not thereafter, simply because his interests have changed, assume a

contrary position, especially if it be to the prejudice of the party who has acquiesced in the

position formerly taken by him.”) (internal citation and quotation omitted); Zedner v. United

States, 547 U.S. 489, 504 (2006) (generally, judicial estoppel “prevents a party from prevailing

in one phase of a case on an argument and then relying on a contradictory argument to prevail in

another phase”) (internal citation and quotation omitted).12

The government’s self-serving conduct is also neither binding on the Court nor entitled to

judicial deference as a matter of law. Given the paucity of information about the policy provided

by the government, combined with its refusal to provide any measure of discovery about where

the policy resides, what it actually states, whether it has ever been applied before to block the

return of a detainee’s property, and ultimately whether it has the force of law, there is no basis to

conclude that the policy constrains this Court’s habeas authority or otherwise precludes relief in

the form of an order requiring the government to return the money. Cf. United States v. Mead

Corp., 533 U.S. 218, 228 (2001) (agency’s informal interpretation of statute not entitled to

deference). For the same reason the Court should not give the self-styled “policy” any weight

when conducting its own review on the merits of Mr. Ameziane’s motion. Id. (where agency

interpretation is not entitled to deference, it is reviewed de novo and entitled only to “weight”

12 Mr. Ameziane does not ask the Court to determine whether he poses a threat to the United States. The government long ago conceded that he does not and should be released. Thus, the government’s claim that threat mitigation is a matter properly vested in the Executive to the exclusion of the Judiciary is irrelevant. Gvt. Br. at 18 n.14.


17

that “will depend upon the thoroughness evident in its consideration, the validity of its reasoning,

its consistency with earlier and later pronouncements, and all those factors which give it power

to persuade, if lacking power to control”) (citation and quotation marks omitted).

The government next claims that its retention of detainee funds regardless of whether

they prevail in habeas moots this case because it is similar to the placement of a detainee on the

“No Fly List,” which was rejected in Gul as insufficient to show collateral consequences of prior

detention. Gvt. Br. at 18-19. The government’s analogy is inapt. Gul rejected the claim that

detainees suffer cognizable harm by being placed on the No Fly List because that designation is

mandated by a congressional statute and is an entirely separate “barrier imposed by that law.”

Gul v. Obama, 652 F.3d 12, 19 (D.C. Cir. 2011). Gul also noted the unique interest served by

No Fly List designations, which is to control entry into the United States. Id. (citing Kiyemba v.

Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010)). The court further explained that the decision to

exclude someone from the United States is informed by “a number of factors” in immigration

law, none of which is whether the individual had been detained at Guantánamo and designated as

an enemy combatant. Id. at 19-20.

Here, of course, the alleged policy at issue does not have the force of law, is not entitled

to deference or weight, and does not involve unique interests such as controlling entry into the

United States. The only factor in determining whether a detainee’s funds should be withheld is

whether he was properly held at Guantánamo and thus (at least according to one government


18

official) by definition was part of Al Qaeda – a central question tested through habeas.13 An

individual who is placed on the No Fly List is also notably entitled to challenge his designation.

See 49 U.S.C. §§ 44903(j)(2)(G)(i); 44926(a); 46110; Latif v. Holder, 686 F.3d 1122, 1125-26

(9th Cir. 2012). Yet the government apparently contends that no similar remedies should be

available to detainees like Mr. Ameziane whose money it seizes unilaterally regardless of the

allegations against them.

Moreover, if the government were truly concerned that Mr. Ameziane might use his

money to harm the interests of the United States, it already has an available, congressionally-

prescribed remedy. It could seek to add him to the List of Specially Designated Nationals and

Blocked Persons (“SDN List”), which includes “individuals and companies owned or controlled

by, or acting for or on behalf of, targeted countries,” as well as “individuals, groups, and entities,

such as terrorists and narcotics traffickers designated under programs that are not country-

specific.” Office of Foreign Assets Control, SDN List (available at http://www.treasury.gov/

resource-center/sanctions/SDN-List/Pages/default.aspx). Individuals who are added to the SDN

List may have their assets frozen pursuant to various provisions of law, including 50 U.S.C.

§ 1702(a)(1)(C). But again, an individual added to the SDN List has available remedies to

challenge his designation and recover his blocked property. See, e.g., 31 C.F.R. § 501.807. By

13 The government’s isolated statement that its policy of withholding detainees’ money is “analogous” to the transfer requirements of the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (Dec. 26, 2013) (“NDAA”), also has no bearing on this case. See Liotta Decl. ¶ 11. Whatever that vague statement was intended to mean, the NDAA was enacted after Mr. Ameziane’s transfer. The transfer restrictions also do not apply to detainees who prevail in habeas. NDAA § 1035(a)(2) (court order exception); see also Mot. for Release at 17-20 (redacted) (dkt. no. 343-1) (addressing 2013 NDAA restrictions). Thus to the extent the government might claim that it would continue to withhold Mr. Ameziane’s money regardless of whether he prevailed in habeas because retention would be required by the NDAA threat-mitigation requirement, see Gvt. Br. at 18 & n.14, that argument is meritless.


19

contrast, Mr. Ameziane, who no one seriously contends is a terrorist, is not afforded the same

protections as a specially designated terrorist.

III. The Jurisdiction-Stripping Provision of 28 U.S.C. § 2241(e)(2) Is Unconstitutional

The government argues that Mr. Ameziane’s motion should be denied and his habeas

petition should be dismissed on the ground that the Court lacks jurisdiction pursuant to 28 U.S.C.

§ 2241(e)(2). Gvt. Br. at 2, 8 nn.2-3, 9-10. Section 2241(e)(2) is void to the extent that it

purports to strip federal courts of federal question jurisdiction. It therefore does not foreclose

this Court from hearing such claims.14

A. Section 2241(e)(2) Violates Article III

1. The Constitution Forbids Removal of All Federal Court Jurisdiction over Federal Questions

Section 2241(e)(2) purports to eliminate all jurisdiction (both original and appellate) in

all courts (both federal and state) over various types of claims relating to the detention and

transfer of “enemy combatants.” The Constitution forbids such a broad elimination of all federal

jurisdiction over federal question claims like those at issue here.

The text of Article III states:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. . . .

Section 2. The judicial Power shall extend to all Cases, [arising under federal law];—to all Cases affecting [foreign officials];—to all Cases of admiralty and maritime Jurisdiction;—to Controversies [between six sets of governmental and/or diverse parties].

In all Cases affecting [foreign officials and states], the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court

14 Mr. Ameziane also contends that § 2241(e)(2) does not apply because he was not “properly detained as an enemy combatant.” But see Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014).


20

shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

U.S. Const. art. III, §§ 1-2. Section 2 uses imperative language (“shall extend”) to make clear

that the “judicial Power” must include “all Cases” involving federal questions (those “arising

under this Constitution, the Laws of the United States, and Treaties made . . . under their

Authority”).15 And the first sentence of Section 1 ensures that some federal court – whether the

Supreme Court or some lower federal courts created by Congress – will exercise this judicial

power, again using imperative language (“shall be vested”).

The clause in Section 1 giving Congress discretion over the structure of the lower federal

courts and the clause in Paragraph 2 of Section 2 allowing Congress to make exceptions to the

Supreme Court’s appellate jurisdiction cannot be read in isolation from the sections mandating

that “[t]he judicial Power . . . shall be vested” in federal courts and “shall extend to all cases . . .

arising under” federal law. Congress does not have the option to eliminate all lower federal

courts and simultaneously to restrict the Supreme Court’s appellate jurisdiction without

limitation. Instead, read together, the first three paragraphs of Article III mandate that some

15 The “judicial Power” must also extend to “all Cases” in the other two mandatory categories of Section 2 – Ambassadors and Admiralty. But out of the nine categories of “Cases” and “Controversies” set forth in Section 2, only in the three sets of “Cases” must some form of federal jurisdiction lie. See Akhil R. Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U.L. Rev. 205, 261-62 (1985). In other words, these three sets of “Cases” (involving federal questions, ambassadors, and admiralty) comprise a “mandatory tier” of cases in which (unlike the other six sets of “Controversies” involving governmental and/or diverse parties) “state courts were not permitted to be the final word”; at some point, a federal court must be able to rule on the issue, even if only on appellate review from a state court system. Id. Of course, as to Ambassador cases, original federal jurisdiction in the Supreme Court is guaranteed by Section 2 ¶ 2. That leaves only “Cases, in Law and Equity, arising under” federal law, and admiralty cases (which were considered to arise in neither law nor equity, see Akhil R. Amar, Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499, 1513 (1990)). Thus, putting aside the Ambassador cases reserved for the original jurisdiction of the Supreme Court, and the state-vs.-state controversies that remain in the Supreme Court’s original jurisdiction after the 11th Amendment, Article III reserves for mandatory federal court review only claims involving uniquely federal subject matter – cases “arising under” federal law and admiralty. Just such uniquely federal questions are at issue in the present case.


21

federal court must have some form of jurisdiction (whether appellate or original) over “all Cases

. . . arising under” federal law. This requirement can be satisfied by vesting original federal-

question jurisdiction in the district courts (as has existed consistently since 1875); or, if original

jurisdiction is left to state courts, by allowing an avenue for appeal to some federal court at some

point in the life of the case (as has existed consistently since the Founding, see, e.g., § 25 of the

first Judiciary Act, which expressly authorized appellate review of federal questions in the

Supreme Court).16

The history of the drafting of Article III and the confirmation debates confirm this view.

See generally 1 Max Farrand, The Records of the Federal Convention of 1787 (1911) (Randolph;

Yates’ notes). The ratification debates in the several states “produced almost no suggestions by

[the Constitution’s advocates] that Congress could delimit the sphere of federal court

jurisdiction,” Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided

Quest for the Original Understanding of Article III, 132 U. Pa. L. Rev. 741, 810 (1984), and

Alexander Hamilton’s famous defenses of the federal judiciary in The Federalist Nos. 78-82 are

consistent with the notion of mandatory federal jurisdiction over the three sets of “Cases” in

Section 2. See The Federalist No. 81 (power of Congress to create inferior federal courts “is

evidently calculated to obviate the necessity of having recourse to the Supreme Court in every

case of federal cognizance”) (emphasis added); The Federalist No. 82 (“The evident aim of the

plan of the convention is that all the causes of the specified classes, shall for weighty public

16 The 1789 Judiciary Act, § 25, 1 Stat. 73, 85-87, granted the Supreme Court appellate jurisdiction over federal questions (more precisely, denials of federal claims or “exemptions”) arising on appeal from state court systems, see generally Amar, Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev. at 1515-17, and the current original general federal question jurisdiction in district courts has been continuously available since 1875. See Jurisdiction and Removal Act of 1875, § 1, 18 Stat. 470 (codified at 28 U.S.C. § 1331(a)); see also Judiciary Act of 1801, § 11, 2 Stat. 89, 92 (first creating plenary federal question jurisdiction in district courts).


22

reasons receive their original or final determination in the courts of the Union.”) (emphasis

added); see also 1 Annals of Congress 831-32 (J. Gales ed. 1789) (Rep. Smith, in debates over

Judiciary Act, stating Article III allows “no discretion, then, in Congress to vest the judicial

power of the United States in any other tribunal than in the Supreme Court and the inferior courts

of the United States.”). See generally Clinton, 132 U. Pa. L. Rev. 741.

The U.S. Supreme Court thus has never upheld a complete preclusion of all federal

judicial fora for federal claims, and has applied the strongest of presumptions against preclusion

of such claims.17 Article III demands some federal court review – whether original or appellate –

over all federal question claims. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 329,

331 (1816) (the “whole judicial power” set forth in Section 2 “must . . . be vested in some

[federal] court, by congress,” “at all times, . . . either in an original or appellate form” ); see also

3 Joseph Story, Commentaries on the Constitution of the United States § 1589 (1833) (“One of

two courses only could be open for adoption; – either to create inferior courts under the national

authority, to reach all cases fit for the national jurisdiction, which either constitutionally or

conveniently, could not be of original cognizance in the Supreme Court; or to confide

jurisdiction of the same cases to the state courts, with a right of appeal to the Supreme Court.”).

Because 28 U.S.C. § 2241(e)(2) purports to eliminate all such review over Mr. Ameziane’s

claims arising under U.S. and international law, it is unconstitutional and void.

An unconstitutional jurisdictional statute must be disregarded as “void.” Marbury v.

Madison, 5 U.S. 137, 177, 180 (1803); see also United States v. Klein, 80 U.S. 128, 147-48

17 See, e.g., Felker v. Turpin, 518 U.S. 651 (1996) (upholding provisions depriving district courts of jurisdiction over “second or successive” habeas petition because the Supreme Court retained original jurisdiction); Reno v. AADC, 525 U.S. 471 (1999) (upholding severe but not complete restriction of federal judicial review); see also Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366-67 (1974).


23

(1871) (disregarding unconstitutional statute that divested court of jurisdiction and reinstating

judgment obtained under prior statutory scheme); Kiyemba v. Obama, 561 F.3d 509, 512 n.**

(D.C. Cir. 2009) (invalidation of jurisdiction-stripping provision of 28 U.S.C. § 2241(e)(1)

“necessarily restored the status quo ante, in which detainees at Guantánamo had the right to

petition for habeas under § 2241”).

2. Al-Zahrani Does Not Require a Contrary Result

The government cites Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012), in support

of its claim that § 2241(e)(2) strips this Court of jurisdiction to consider non-habeas claims filed

by Guantánamo detainees. Gvt. Br. at 9. But nothing in the Al-Zahrani opinion indicates that

the D.C. Circuit actually decided that case on properly jurisdictional grounds, or otherwise

foreclosed Mr. Ameziane’s argument that the Constitution forbids the removal of all federal

court jurisdiction over claims arising under federal law. Indeed, the entire treatment of the Al-

Zahrani plaintiffs’ constitutional objections to the jurisdictional issue takes up one paragraph in

the panel’s opinion, with the discussion at best ambiguous as to whether it addresses jurisdiction

proper – the power of the court to rule on damages claims – or merely whether Congress

intended a remedy to exist. See Al-Zahrani, 669 F.3d at 319-20 (“But the only remedy

[plaintiffs] seek is money damages, and, as the government rightly argues, such remedies are not

constitutionally required. . . . As we have recently said, ‘Not every violation of a right yields a

remedy, even when the right is constitutional.’”) (quoting Kiyemba v. Obama, 555 F.3d 1022,

1027 (D.C. Cir. 2009)); see also Janko v. Gates, 741 F.3d 136, 145-47 (D.C. Cir. 2014) (citing

Al-Zahrani without addressing Article III issues); Hamad v. Gates, 732 F.3d 990, 1003-06 (9th


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Cir. 2013) (same).18 The Al-Zahrani opinion, on this reading, falls into a long line of decisions

using the term “jurisdictional” loosely19 to refer to the absence of a valid cause of action. Cf.

Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998) (“It is firmly established in our

cases that the absence of a valid (as opposed to arguable) cause of action does not implicate

subject-matter jurisdiction, i.e., the courts’ statutory or constitutional power to adjudicate the

case.”) (emphasis in original).

B. The Due Process Clause Also Limits Congress’s Power to Strip Jurisdiction

The Fifth Amendment to the Constitution post-dates Article III and contains further

limitations on Congress’s ability to modify federal jurisdiction. The D.C. Circuit has repeatedly

confirmed that, “to the extent that the provisions of Article III are inconsistent with the due

process clause of the fifth amendment, those provisions of Article III must be considered

modified by the amendment.” Bartlett v. Bowen, 816 F.2d 695, 706 (D.C. Cir. 1987) (quotation

marks omitted).20 As an initial matter, the Due Process Clause suggests that there must be some

federal judicial forum for the enforcement of federal rights. Id.; see also Am. Coal. for

18 The availability of the particular remedy that Mr. Ameziane seeks in this case is not at issue because the Court unquestionably has equitable authority, in habeas or otherwise, to fashion an appropriate remedy based on the facts and circumstances of the case. See Boumediene v. Bush, 553 U.S. 723, 779 (2008) (“Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances.”); United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987) (return of money governed by a court’s general equitable powers).

19 See, for example, on this point, a number of recent corrective decisions of the Supreme Court: Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (Title VII 15-emplyee minimum rule not jurisdictional, and thus subject to waiver); Eberhart v. United States, 546 U.S. 12 (2005) (per curiam) (seven-day filing period under Fed. R. Crim. P. 33 not jurisdictional, and thus subject to waiver); Scarborough v. Principi, 541 U.S. 401 (2004) (EAJA element that government action be “not substantially justified” was not jurisdictional); Kontrick v. Ryan, 540 U.S. 443 (2004) (Fed. R. Bankr. P. 4004 deadline not jurisdictional, and thus subject to waiver).

20 Reconsideration en banc was granted and then withdrawn, reinstating the panel opinion. See Bartlett v. Bowen, 824 F.2d 1240, 1241-42 (D.C. Cir. 1987).


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Competitive Trade v. Clinton, 128 F.3d 761, 765 (D.C. Cir. 1997) (“[A] statute that totally

precluded judicial review for constitutional claims would clearly raise serious due process

concerns.”); Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986);

Webster v. Doe, 486 U.S. 592, 603 (1988). Section 2241(e)(2) must then at a minimum be

interpreted to preserve jurisdiction to address the issues raised by Mr. Ameziane’s case. See

Bataglia v. Gen. Motors, 169 F.2d 254, 257 (2d Cir. 1948) (“[T]he exercise of Congress of its

control over jurisdiction is subject to compliance with at least the requirements of the Fifth

Amendment. . . . [I]t must not so exercise that power as to deprive any person of life, liberty, or

property without due process of law or to take private property without just compensation.”).

The Due Process Clause also incorporates equal protection principles identical to those

contained in the Fourteenth Amendment against the federal government;21 it both protect the

21 The Supreme Court has recognized that the Fifth Amendment’s Due Process Clause embraces the “concept of equal justice under law.” Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Accordingly, the Fourteenth Amendment’s Equal Protection Clause and the Fifth Amendment’s Due Process Clause “require the same type of analysis.” Id.; see Adarand Constructors v. Pena, 515 U.S. 200, 217 (1995) (“[T]he equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable”).


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rights of aliens “within the territorial jurisdiction” of the United States as well as citizens.22

Section 2241(e)(2) violates those principles because by its terms it applies only to aliens. By

drawing categorical distinctions between citizens and aliens even when each is properly

22 U.S. Const. amend. XIV, § 1; Plyler v. Doe, 457 U.S. 202, 210 (1982). Due process and habeas are also inextricably intertwined, see Hamdi v. Rumsfeld, 542 U.S. 507, 525-26 (2004) (plurality opinion) (discussing interaction of habeas and due process); id. at 555-57 (Scalia, J., dissenting) (same), and to the extent habeas jurisdiction has been recognized at Guantánamo at least some measure of the Due Process Clause also reaches there. See id. at 538 (plurality opinion) (“[A] court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.”); Boumediene v. Bush, 553 U.S. 723, 770 (2008) (applying the “impracticable and anomalous” test for application of constitutional rights outside the United States and concluding that “there are few practical barriers to the running of the writ” at Guantánamo); id. at 784-85 (addressing due process). See also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. . . . [Its] provisions are universal in their application, to all persons within the territorial jurisdiction.”); Rasul v. Bush, 542 U.S. 466, 487 (2004) (Kennedy, J., concurring) (“Guantanamo Bay is in every practical respect a United States territory” where our “unchallenged and indefinite control . . . has produced a place that belongs to the United States, extending the ‘implied protection’ of the United States to it.”); cf. Hussain v. Obama, No. 13-638, 2014 U.S. LEXIS 2548, at *2 (S. Ct. Apr. 21, 2014) (Breyer, J., statement respecting the denial of certiorari) (Supreme Court has not determined whether the Constitution may limit the duration of detention at Guantánamo). Nor can the D.C. Circuit’s decision in Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (Kiyemba I), be fairly read to preclude the application of due process entirely at Guantánamo; that decision addressed only the narrow question of whether due process authorizes entry into the United States of non-citizens without property or presence in the country. Id. at 1026-27. Indeed, there is no other way to read Kiyemba I consistently with subsequent panel decisions of the Circuit. See Kiyemba v. Obama, 561 F.3d 509, 514 n.* (D.C. Cir. 2009) (Kiyemba II) (“[W]e assume arguendo these alien detainees have the same constitutional rights . . . as . . . U.S. citizens” detained by the U.S. military in Iraq); id. at 518 n.4 (Kavanaugh, J., concurring) (“[A]s explained in the opinion of the Court and in this concurring opinion, the detainees do not prevail in this case even if they are right about the governing legal framework: Even assuming that the Guantanamo detainees . . . possess constitutionally based due process rights” they would not prevail); Kiyemba v. Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010) (Kiyemba III) (“[P]etitioners never had a constitutional right to be brought to this country and released.”); id. at 1051 (Rogers, J., concurring) (“Whatever role due process and the Geneva Conventions might play with regard to granting the writ, petitioners cite no authority that due process or the Geneva Conventions confer a right of release in the continental United States.”); cf. Kiyemba v. Obama, 131 S. Ct. 1631, 1631-32 (2011) (Breyer, Kennedy, Ginsburg, Sotomayor, JJ., statement respecting the denial of certiorari) (third country’s offer to resettle detainees transformed their due process claim seeking entry into the United States, which, should circumstances change in the future, may be raised again before the Court).


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determined to have acted in the very same way, it violates the equal protection component of

the Due Process Clause of the Fifth Amendment. See Graham v. Richardson, 403 U.S. 365, 372

(1971) (“[C]lassifications based on alienage . . . are inherently suspect and subject to close

judicial scrutiny.”). Citizenship is no bar to belligerency, see Ex Parte Quirin, 317 U.S. 1, 37

(1942), and the Authorization for Use of Military Force (“AUMF”), Pub. L. 107-40, § 2(a), 115

Stat. 224, 224 (2001), draws no such distinction. But § 2241(e)(2) deprives only “an alien”

enemy combatant of the right of access to the courts.

In addition, were this Court to read the statute to eliminate jurisdiction over Mr.

Ameziane’s motion, the statute would violate the equal protection component of the Fifth

Amendment because it discriminates in the allocation of fundamental rights, and, in particular,

the fundamental right of access to the courts. See, e.g., Plyler v. Doe, 457 U.S. 202, 216-17

(1982); see also 152 Cong. Rec. H7940 (daily ed. Sept. 29, 2006) (statement of Rep. Nadler: “If

you pick up two people in New York, one of them is a citizen, they go to the Federal court, and

you accuse them of being unlawful enemy combatants, they go to the regular American system

of justice. One is awaiting citizenship but is a permanent resident, he goes through this other

[system of justice]. He has no rights . . . . That is clearly unconstitutional. It is a denial of equal

protection.”). The Supreme Court has applied heightened review to government efforts to

discriminate in access to courts, even based on non-suspect classifications. See, e.g., Tennessee

v. Lane, 541 U.S. 509, 522-23 (2004) (stating that “the right of access to the courts” is subject to

“more searching judicial review” under equal protection).

Moreover, a jurisdiction-stripping provision that was intended to apply only to Muslims

violates equal protection principles. No non-Muslim has been detained by the United States

government as an “enemy combatant” anywhere to our knowledge – by the time of or since the


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enactment of 28 U.S.C. § 2241(e)(2). Even a facially neutral law applied in so uniformly

discriminatory a manner triggers strict scrutiny. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356,

373-74 (1886). Congress was clearly aware of this fact. See 152 Cong. Rec. S.10,395 (daily ed.

Sept. 28, 2006) (statement of Sen. Cornyn: “Let me just say a word about who that enemy is. . . .

[I]t is an enemy that has hijacked one of the world’s great religions, Islam”); id. at S.10,402

(statement of Sen. McConnell: “We are a Nation at war, and we are at war with Islamic

extremists.”). In such circumstances, courts have applied strict scrutiny to overturn legislation

motivated in part by desire to disfavor members of a suspect class. Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).23 The Court should apply the same standard

here and invalidate 28 U.S.C. § 2241(e)(2).

Conclusion

For all of the foregoing reasons, Mr. Ameziane’s motion should be granted and the Court

should order the government to return his money, with interest, or schedule a full habeas hearing

that will ultimately achieve the same result. The Court should also deny the government’s cross-

motion to dismiss. In addition, the Court should order any other relief that it deems necessary

and appropriate pursuant to its equitable habeas authority.

23 The Supreme Court “does not require a plaintiff to prove that [legislative] action rested solely on . . . discriminatory purposes . . . [If] a discriminatory purpose has been a motivating factor in the decision, [ ] judicial deference is no longer justified.” Arlington Heights, 429 U.S. at 264-65 (emphasis added). The “historical background of the decision is [another] evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes.” Id. at 267. Finally, “legislative or administrative history,” including especially “contemporary statements,” id. at 268, are a third factor. All are present here.


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Date: New York, New York May 9, 2014

Respectfully submitted, /s/ J. Wells Dixon J. Wells Dixon (Pursuant to LCvR 83.2(g)) Shayana D. Kadidal Susan Hu (Pursuant to LCvR 83.2(g)) CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, New York 10012 Tel: (212) 614-6423 Fax: (212) 614-6499 [email protected] [email protected] [email protected]

Counsel for Djamel Ameziane


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