doj: guantanamo detainees aren't 'persons' under the law

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) IMAD ABDULLAH HASSAN, ) ) Petitioner, ) ) v. ) Civil Action No. 04-CV-1194 (UNA) ) BARACK OBAMA, et al., ) ) Respondents. ) ___________________________________ ) ) MOHAMMED AHMAD GHULAM ) RABBANI ) ) Petitioner, ) ) v. ) Civil Action No. 05-CV-1607 (RCL) ) BARACK OBAMA, et al., ) ) Respondents. ) ___________________________________ )

RESPONDENTS’ OPPOSITION TO PETITIONERS’ EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER PROHIBITING RESPONDENTS FROM DEPRIVING PETITIONERS OF THE RIGHT TO PRAY COMMUNALLY DURING THE MONTH OF RAMADAN

Petitioners ground their requests for the extraordinary remedy of a temporary

restraining order on an equally extraordinary premise: that unprivileged enemy

belligerents detained overseas during a period of ongoing hostilities are entitled to pursue

claims against the military under the Religious Freedom Restoration Act, 42 U.S.C.

2000bb to 2000bb-4 (“RFRA”), despite controlling Circuit precedent to the contrary.

Even more extraordinarily, they do so having introduced no evidence that either of them

even desires to practice his religion, as pertinent here, to pray communally during

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 of 28

Ramadan, or that the circumstances of their detention in any event burden that practice.

Absent this evidence they cannot make out a prima facie case under RFRA, which

requires that they show that their exercise of religious rights not only has been burdened,

but has been substantially burdened. 42 U.S.C. 2000bb-1; also, Gilardi v. U.S. Dept. of

Health and Human Services, 733 F.3d 1208, 1216 (D.C. Cir. 2013). Accordingly, for this

factual reason alone, Petitioner Hassan’s Emergency Application for a Temporary

Restraining Order Prohibiting Respondents From Depriving Petitioner of the Right to

Pray Communally During the Month of Ramadan (ECF No. 1049) (“Hassan Emergency

Application”) and the Petitioner Rabbani’s corresponding identically worded emergency

Application (ECF No. 334) should be denied.

Given Petitioners’ failure to present even a prima facie case, the Court need not

reach Petitioners’ main legal contention, that the recent decision in Hobby Lobby v.

Burwell, Nos. 13-354 & 13-356, 2014 WL 2921709 (U.S. June 30, 2014), should be

interpreted to apply RFRA to nonresident aliens detained by the military overseas, such

as Petitioners. But even if the Court reaches that issue, Petitioners applications must fail,

as they cannot show the requisite likelihood of success on the merits, or any of the other

three factors necessary for preliminary injunctive relief, for three reasons.

First, Hobby Lobby did not overrule, or even address the issue decided by, the

current binding Circuit precedent, which holds that Guantanamo detainees, as nonresident

aliens outside the United States sovereign territory, are not protected “person[s]” within

the meaning and scope of RFRA. See Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir.

2009) (“Rasul II”). In Hobby Lobby, the Supreme Court held RFRA rights extend to for-

profit closely held corporations, reasoning in part that the Dictionary Act, 1 U.S.C. § 1

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defines a “person” to include “corporations.” 2014 WL 291709 at * 14. That case did

not involve or resolve any other question regarding the meaning of “person” under

RFRA. As a result, that opinion cannot be read as extending RFRA rights to Petitioners:

simply put, the Supreme Court never addressed whether unprivileged enemy belligerents

detained overseas during a period of ongoing hostilities are “persons” to whom RFRA

applies. Because Hobby Lobby neither addressed nor overruled the holding of Rasul II,

it remains binding on this Court. See United States v. Torres, 115 F.3d 1033, 1036 (D.C.

Cir. 1997) (“[d]istrict judges . . . are obligated to follow controlling circuit precedent until

either . . . [the Court of Appeals], sitting en banc, or the Supreme Court, overrule it.”).

Second, even if unprivileged enemy belligerents could be construed as protected

“persons” under RFRA, that statute would still not apply to Petitioners because, as

applied to the leasehold of Guantanamo Bay, RFRA cannot overcome the judicial

presumption against extraterritorial application of statutes. See EEOC v. Arabian

American Oil Co., 499 U.S. 244, 248 (1991) (applying presumption against

extraterritorial application to Title VII).

And lastly, Petitioners cannot avail themselves of RFRA because Congress never

intended that statute to apply to enemy belligerents detained overseas. Indeed, absent

clear guidance from Congress, the judiciary should not imply a remedy under RFRA that

would necessarily interfere with military operations during a time of ongoing hostilities.

Rasul II, 563 F.3d at 559-60 (Brown, J. concurring); Lebron v. Rumsfeld, 670 F.3d 540,

558-559 (4th Cir. 2012). Here, the clear guidance from Congress, evidenced in

subsequently enacted statutes, is that RFRA does not apply to detainees such as

Petitioners.

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In summary, because Petitioners have utterly failed to establish a prima facie case

under RFRA, the Court can deny Petitioners’ applications for injunctive relief without

reaching the other legal issues raised by Petitioners’ applications. But if the Court does

reach those other issues, it should still rule as a matter of law that Petitioners claim

cannot succeed on the merits. Accordingly, the Emergency Applications should be

denied.

BACKGROUND

Facts

In seeking to enjoin Respondents, Petitioners allege a paucity of facts to support

their Emergency Applications. In both of their applications, they merely incorporate (1)

the cites regarding the tradition of communal prayer during Ramadan taken from their

initial applications for a preliminary injunction1 concerning various alleged aspects of

enteral feeding, and (2) allegations by another detainee that detainees who were being

enterally fed were not permitted to pray communally during Ramadan in 2013. Hassan

Emerg. Appl. at 2; Rabbani Emerg. Appl. at 2. Notably absent from Petitioners’ initial

applications or these emergency applications is any averment that Petitioners desire to

participate in communal Ramadan prayers. Nor, critically, have Petitioners otherwise

presented any particularized discussion of the circumstances of their confinement that

supposedly prevent them from participating in Ramadan communal prayers.

The record submitted by Respondents in opposition to Petitioners’ initial

applications for preliminary injunctions establishes, to the contrary, that, the United

States respects, and that Joint Task Force-Guantanamo works, in the absence of any

1 See Petr’s Appl. for Prelim. Inj (ECF No. 1001 in Civ Act. 04-1194) (Hassan Initial Application); Petr’s Appl. for Prelim. Inj. (ECF No. 308 in Civ. Act. 05-1607) (Rabbani Initial Applicatoin).

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unforeseen emergency or operational issues, to accommodate the religious and cultural

practices of the detainees, including during Ramadan. See, e.g, Resps’ Opp. To Pet’s

App. For Prelim Inj. (ECF No. 1020, Civ. Act. 04-1194), Ex 1. ¶ 34. For detainees who

require enteral feeding, JTF-GTMO modifies the hours of enteral feeding to

accommodate the hours of the Ramadan fast. Id. Accordingly, any necessary enteral

feedings are administered after sundown each day during Ramadan. Id. At the end of

Ramadan, detainees may participate in morning Eid prayer, and feast meals are offered to

all detainees, including those who are engaged in non-religious fasting. Id.

The Government also makes numerous religious accommodations in Petitioners’

living environment that allow for communal prayer. Petitioners are currently housed in

Camp 5, see, e.g., Rabbani Initial Appl.at 13, which is a general population, maximum

security, single-cell detention facility. See Review Of Department Compliance With

President’s Executive Order On Detainee Conditions Of Confinement at 11 (“Walsh

Report”) (attached as Exhibit 1).2 All detainees in Camp 5 are offered a minimum of two

hours of outdoor recreation per day. Id. at 45, 47. No detainees are held in isolation. Id.;

see also Decl. of B. Vargo, ¶7 (attached as Exhibit 2).3 All detainees housed in Camp 5

have multiple opportunities for daily interaction with other detainees and camp personnel.

Ex. 1, Walsh Report at 45, 47; Ex. 2, Vargo Decl. ¶ 7. Significantly here, detainees are

also permitted to speak to one another from their cells and participate in uninterrupted

group prayer (led by a block detainee prayer leader of their choosing) multiple times per

2 Due to the time constraints associated with these emergency applications, Respondents have attached the 2009 Walsh Report which has been submitted in previously in Guantanamo Bay litigation. While the report is from 2009, the facts cited in this brief remain accurate today. 3 As with the Walsh report, due to the time constraints associated with this filing, Respondents have attached the Vargo Declaration, which was previously submitted in Guantanamo Bay litigation. While the declaration is from 2008, the facts recited in this brief remain accurate.

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day. Ex. 1, Walsh Report at 25; Ex. 2, Vargo Decl. at ¶ 7. To facilitate this, the food tray

access doors of the prayer leaders are lowered (that is, opened) to allow call to prayer on

each cell block. Ex. 1, Walsh Report at 25.4 Out of respect for the communal prayer

time, guard movement and activity is limited to only those actions required to maintain

security. Id. Additionally, visual signals are placed on each block signifying quiet time,

and each detainee cell includes an arrow pointing towards Mecca. Id. Further, the

Department of Defense advises that the guard force at Guantanamo is trained to

understand and safeguard the traditions observed during the Islamic Holy Month of

Ramadan, including by honoring prayer times as describe above.

Thus, the only competent evidence in the record in this matter is that the

Government takes substantial measures to accommodate Petitioners’ religious beliefs,

measures that effectively permit him to engage in communal Ramadan prayers, if he

wishes to do so.

Statute

RFRA provides that the “Government shall not substantially burden a person’s

exercise of religion” unless the government “demonstrates that application of the burden

to the person -- (1) is in furtherance of a compelling governmental interest; and (2) is the

least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §

2000bb-1. The Act applies to “all federal law” and the implementation of that law,

“whether statutory or otherwise,” adopted both before and after the passage of RFRA. Id.

4 Even when fully secured with feed tray slots closed, cells in Camps 5 allow easy communication between adjacent cells, and other cells within a group of cells or cell block. Walsh Report at 45, 47. With a raised voice an individual detainee located in a cell on one end of a block can readily and effectively communicate with a detainee on the opposite end of the block. Id. This free communication is not discouraged. Id.

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§ 2000bb-3(a). The Act defines “government” as “a branch, department, agency,

instrumentality, and official (or other person acting under color of law) of the United

States, or a covered entity.” Id. § 2000bb-2(1). A “covered entity,” in turn, “means the

District of Columbia, the Commonwealth of Puerto Rico, and each territory and

possession of the United States.” Id. § 2000bb-2(2). RFRA also gives a “person” whose

religious exercise has been burdened a statutory right of action. 42 U.S.C. § 2000bb-1(c).

Case Law

In Hobby Lobby the Supreme Court considered whether RFRA applied to protect

the activities of closely held, for-profit corporations. 2014 WL 2921709 at *12. The

Court described RFRA as having been enacted in response to the Court’s decision in

Employment Division v. Smith, 494 U.S. 872 (1990), id. at *7-*8, and as having

expanded the protection of religious exercise beyond that required under the First

Amendment. Id. at *8.5 Turning to the issue of whether RFRA applied with respect to

government requirements related to the activities of for-profit corporations, the Court

considered whether the term, “person,” as used in RFRA included the closely held

corporations before the Court. Id. at *14. The Court noted that “person” was not

defined in RFRA and, therefore, it referenced the Dictionary Act, 1 U.S.C. § 1, which

provides definitions of certain terms used in statutes, “unless the context indicates

otherwise.” Id. The Court explained that “unless there is something about the RFRA

context that ‘indicates otherwise,’” the inclusion of “corporations” within the Dictionary

Act definition of “person” meant the closely held corporations before the Court were

5 Smith determined that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” See City of Boerne v. Flores, 521 U.S. 507, 514 (1997). This approach “repudiated the method of analyzing free-exercise claims” that had been used for decades. Hobby Lobby, 2014 WL 2921709 at *7.

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within the scope of RFRA. 2014 WL 2921709 at *14. Noting that prior cases had

entertained RFRA claims by nonprofit corporations, the Court found no reason that for-

profit, closely held corporations should not also be included within the meaning of

“person” and the scope of RFRA, especially since for-profits could, like nonprofits,

pursue religious or charitable aims over mere profit. Id. at *14-*15.

The Court also rejected an argument that RFRA did not protect for-profit

corporations because none of the Supreme Court’s pre-Smith decisions squarely held that

a for-profit corporation had free-exercise rights. The Court concluded that RFRA did not

“merely restore this Court’s pre-Smith decisions in ossified form” or allow a plaintiff to

raise a RFRA claim only if the plaintiff “fell within a category of plaintiffs one of whom

had brought a free-exercise claim that this Court entertained in the years before Smith.”

Id. at *7. The Court also noted that “the one pre-Smith case involving the free-exercise

rights of a for-profit corporation suggests, if anything, that for-profit corporations possess

such rights.” Id. at *17.

Finally, the Court made clear that it was only deciding the limited question before

it: whether closely held, for-profit corporations were protected under RFRA. In

addressing the Government’s argument that RFRA could not have been intended to apply

to for-profits because of practical difficulties in “ascertain[ing] the sincere ‘beliefs’ of a

corporation,” including those of large, publicly traded corporations, the Court explained

that the case did not involve publicly traded corporations, and, “[i]n any event, we have

no occasion in these cases to consider RFRA’s applicability to such companies.” Id. at

*18; see id. at *19 (“[W]e hold that a federal regulation’s restriction on the activities of a

for-profit closely held corporation must comply with RFRA.”).

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As explained below, Hobby Lobby has not overruled Rasul II, and this Court is

not free to disregard that binding precedent. Further, Petitioners are not otherwise

entitled to the injunction they seek.

ARGUMENT

“Temporary restraining orders . . . are ‘extraordinary remed[ies] that should be

granted only when the party seeking the relief, by a clear showing, carries the burden of

persuasion.’” Lofton v. D.C., --- F.Supp.2d ---- , CV 13-1959 (RBW), 2013 WL 6710352

at *2 (D.D.C. Dec. 20, 2013) (quoting Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290, 297 (D.C.Cir.2006)). Because of the extraordinary nature of this relief,

courts should grant temporary restraining orders sparingly. Barton v. District of

Columbia, 131 F. Supp. 2d 236, 242 (D.D.C. 2001) (citing Moore v. Summers, 113 F.

Supp. 2d 5, 17 (D.D.C. 2000)).6 A party seeking a temporary restraining order must

establish four factors: (1) that it is likely to succeed on the merits, (2) that it is likely to

suffer irreparable harm in the absence of the preliminary injunction, (3) that the balance

of equities tips in its favor, and (4) that the public interest favors the injunction. Winter v.

Natural Res. Defense Council, 555 U.S. 7, 20 (2008); 7 see also Aamer v. Obama, 742

F.3d 1023, 1038 (D.C. Cir. 2014).8

6 Though the cases Respondents cite concerning the standards for issuing temporary restraining orders address motions for preliminary injunctions, “[i]n determining whether to issue a temporary restraining order, the Court must apply the same standard that is applied to preliminary injunctions.” Lofton, 2013 WL 6710352 at *2 (citing Hall v. Johnson, 599 F.Supp.2d 1, 3 n.2 (D.D.C.2009)). 7In Winter, the Supreme Court held that a party must always demonstrate that irreparable harm is likely—not just possible—before a preliminary injunction may issue. 555 U.S. at 22. By so holding, the Court appears to have rejected the test then existing in the Ninth Circuit (and in this Circuit), by which the requisite degree of likelihood of success and the degree of harm to the party seeking the injunction were balanced. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843-844 (D.C. Cir. 1977) (if movant demonstrates that balance of equities tips sharply in its favor, it need only show a possibility of success on the merits and vice versa). Rather, post-Winter, it appears that parties seeking preliminary injunctions must now fully satisfy all four factors before a preliminary injunction may be entered. The Court of Appeals, however, has specifically reserved the question of Winter’s effect on the

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Petitioners seek a temporary injunction prohibiting Respondents from preventing

their participation in communal prayers during Ramadan. Petitioners argue that the

Supreme Court’s decision in Hobby Lobby compels rejection of the Court of Appeals’

decision in Rasul II that Guantanamo detainees such as Petitioners are not “persons”

within the scope of RFRA, thus entitling Petitioners to the injunctions they seek.

Petitioners are not entitled to the injunction, however. First, Petitioners cannot

demonstrate a likelihood of success because, even if RFRA applied to Petitioners, they

have not made a factual demonstration that their religious exercise has been

“substantially burdened” within the meaning of RFRA; Petitioners merely ask the Court

to assume that substantial burden exists. Petitioners also cannot demonstrate a likelihood

of success on their RFRA claims despite the Hobby Lobby decision because “[d]istrict

judges . . . are obligated to follow controlling circuit precedent until either . . . [the Court

of Appeals], sitting en banc, or the Supreme Court, overrule it.” United States v. Torres,

115 F.3d 1033, 1036 (D.C. Cir. 1997). Even if Petitioners were correct that Hobby Lobby

called into question some aspects of Rasul II, the case neither considered nor addressed

the issue decided in Rasul II—whether “person” as used in RFRA includes a nonresident

alien outside sovereign United States territory—and it cannot be said to have

“overrule[d]” Rasul II. Thus, this Court remains bound by Rasul II. Even beyond Rasul

Holiday Tours-balancing test, finding in all cases post-Winter that the plaintiff would not have prevailed even under the balancing test. See, e.g., Sherley v. Sebelious, 644 F.3d 388, 393 (D.C. Cir. 2011). 8 The Aamer majority held that conditions-of-confinement challenges could be adjudicated in habeas cases, explicitly rejecting the Government’s argument that section 7 of the Military Commissions Act, 28 U.S.C. § 2241(e)(2), jurisdictionally barred those challenges by Guantanamo Bay detainees. 742 F.3d at 1034-35. Nevertheless, the Government objects to Petitioners’ motion as jurisdictionally barred under the MCA despite Aamer’s holding, not to reargue here what has been foreclosed there, but to preserve that objection.

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II, Petitioners also cannot demonstrate a likelihood of success on their claims because

RFRA does not apply extraterritorially to Guantanamo Bay and, in any event, Congress

did not intend the statute to apply to enemy forces detained by the military overseas. For

the same reasons, Petitioners cannot satisfy the remaining three factors they are required

to establish to obtain an injunction.

I. PETITIONERS HAVE FAILED TO ALLEGE A PRIMA FACIE CASE UNDER RFRA

Under RFRA, the federal government “shall not substantially burden a person’s

exercise of religion” unless that burden is the least restrictive means to further a

compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial

burdens on the exercise of religion trigger the compelling interest requirement.”

Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added).9 Petitioners

bear the burden to establish a prima facie claim under RFRA by proving three elements:

(1) a substantial burden imposed by the federal government on a (2) sincere (3) “exercise

of religion.” 42 U.S.C. 2000bb-1; see also, Gilardi v. U.S. Dept. of Health and Human

Services, 733 F.3d 1208, 1216 (D.C. Cir. 2013) (“‘[T]he Act requires a claimant to

“‘allege[] a substantial burden on [his] religious exercise.’”) (citing Kaemmerling v.

Lappin, 553 F.3d 669, 677 (D.C.Cir. 2008)); Sample v. Lappin, 424 F. Supp. 2d 187, 192

(D.D.C. 2006).

To establish a prima facie RFRA claim, “a plaintiff must present evidence

sufficient to allow a trier of fact rationally to find” that these three elements exist.

9 As initially drafted, RFRA prohibited the government from imposing any “burden” on free exercise. Congress subsequently added the word “substantially” “to make it clear that the compelling interest standards set forth in the act” would apply “only to Government actions [that] place a substantial burden on the exercise of” religion. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see id. (statement of Sen. Hatch).

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Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1068 (9th Cir. 2008). In the

present case, Petitioners have put forth no evidence to support their RFRA claims, most

notably nowhere in the record—not here, nor in the record submitted and subsequently

supplemented multiple times on their Initial Applications—do Petitioners even assert that

they desire to participate in communal prayer during Ramadan. Nor do Petitioners

demonstrate by reference to the specific circumstances of their detention that their

participation in communal Ramadan prayer has otherwise been substantially burdened.

This failure of proof is fatal to this application for a temporary restraining order.

In fact, the sum total of evidence put forward by Petitioners to support their

claims consists solely of a description of the importance of certain religious ceremonies

during Ramadan and various newspaper reports about Ramadan at Guantanamo Bay. See

Hassan Initial Appl. at 13-14; Rabbani Initial Appl. at 18-19. In addition, both

applications describe a conversation Petitioners’ counsel had with a detainee (not

Petitioners) in July 2013. Id. The detainee felt he was being “blackmailed” into eating

because if he did not eat, he would be put into isolation preventing him from attending

communal prayers during Ramadan in 2013. Id.

These few alleged facts cannot support a RFRA claim, let alone the extraordinary

remedy of a temporary restraining order. Simply put, the record contains no evidence

that Petitioners’ ability to exercise their religion is substantially burdened. For this

reason alone, the Court need not reach the remaining issues raised by Petitioners’

emergency applications.

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II. PETITIONERS CANNOT DEMONSTRATE A LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE THIS COURT REMAINS BOUND BY RASUL II

As discussed above, in Rasul II the Court of Appeals held that Guantanamo

detainees are not protected “person[s]” within the meaning and scope of RFRA. The

Court explained its rationale:

In enacting RFRA, Congress intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.Ed.2d 876 (1990). See City of Boerne v. Flores, 521 U.S. 507, 515, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The aim was to restore what, in Congress's view, is the free exercise right the Constitution guaranteed—in both substance and scope. We therefore held that the term “person” as used in RFRA should be read consistently with similar language in constitutional provisions, as interpreted by the Supreme Court at the time Congress enacted RFRA. Rasul I [v. Myers], 512 F.3d [644] at 670-72 [(D.C. Cir. 2008)]. Congress legislated against the background of precedent establishing that nonresident aliens were not among the “person[s]” protected by the Fifth Amendment, [Johnson v.] Eisentrager, 339 U.S. [XXX] at 783 [(1951)], 70 S. Ct. 936, and were not among “the people” protected by the Fourth Amendment, [United States v.] Verdugo-Urquidez, 494 U.S. [259] at 269 [(1990)], 110 S. Ct. 1056. See also Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412, 1428 (11th Cir.1995) (Cuban and Haitian refugees at Guantanamo Bay lack First Amendment rights). Reading RFRA in line with these precedents, we held that plaintiffs are not protected “person[s]” under this statute. Rasul I, 512 F.3d at 672. We reinstate that judgment today.

Id.10 In Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014), the Court of Appeals

further described the rationale for its holding in Rasul II: “Congress, we reasoned,

intended the term ‘person’ to ‘be read consistently with similar language in constitutional

provisions, as interpreted by the Supreme Court at the time Congress enacted RFRA’ in

1993, and held that decisions such as . . . Eisentrager . . . and . . . Verdugo-Urquidez . . .

10 The Court of Appeals was revisiting its analysis of the issue contained in Rasul v.Myers, 512 F.3d 644 (D.C. Cir. 2008) (Rasul I), which was vacated by the Supreme Court and remanded for further consideration in light of Boumediene v. Bush, 553 U.S. 723 (2008). Rasul II, 563 F.3d at 528.

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would have led Congress to presume that the term did not encompass nonresident aliens.”

See Allaithi v. Rumsfeld, __ F.3d ___, 2014 WL 2575417 at *6 (D.C. Cir. June 10, 2014).

Petitioners argue that Hobby Lobby establishes “indisputably that Petitioner[s]

enjoy RFRA protections” and “makes Rasul a dead letter.” E.g. Hassan Emerg. Appl. at

5, 7. As noted above, however, in Hobby Lobby the Supreme Court interpreted RFRA in

deciding an altogether different issue than whether alien detainees held outside the United

States are entitled to RFRA protections. The Court in Hobby Lobby considered only

whether RFRA applied to protect the activities of closely held, for-profit corporations.

2014 WL 2921709 at *12, *19. “District judges . . . are obligated to follow controlling

circuit precedent until either . . . [the Court of Appeals], sitting en banc, or the Supreme

Court, overrule it.” United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997).

Here, it cannot be said that Hobby Lobby has overruled Rasul II; indeed, Hobby Lobby

neither addressed nor considered, much less decided, the issue determined in Rasul II,

that is, whether nonresident aliens outside sovereign U.S. territory can be considered

“persons” under RFRA. “Questions . . . neither brought to the attention of the court nor

ruled upon, are not to be considered as having been so decided as to constitute

precedents.’” Cooper Indust., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004)

(quoting Webster v. Fall, 266 U.S. 507, 511 (1925)); cf. Whitacre v. Davey, 890 F.2d

1168, 1172 (D.C.Cir.1989) (“We cannot count as controlling a decision that never

touched upon the issue we confront.”); see also Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (before governing precedent can be disregarded, intervening higher court

decision must undercut prior precedent “in such a way that the cases are clearly

irreconcilable”). Petitioner reaches his conclusion that Rasul is a “dead letter” only by

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selectively quoting Hobby Lobby, often out of context, attempting to twist the case to

make it speak to an issue that the Supreme Court had no occasion to consider and that is

of an entirely different character than whether a certain type of domestic corporation is

covered by the statute.

First, Petitioners argue that “[c]ontrary to the D.C. Circuit’s supposition in Rasul,

Congress did not intend for the scope of ‘persons’ protected by RFRA to be restricted by

‘then-existing Supreme Court precedents.’” E.g., Hassan Emerg. Appl. at 4 (quoting

Hobby Lobby, 2014 WL 2921709 at *16); see also id. at 5 (“Hobby Lobby wholly

undermines Rasul by holding that pre-Smith Supreme Court case law does not restrict the

scope of” persons protected by RFRA). Petitioners, however, mischaracterize Hobby

Lobby. As explained above, the Court in Hobby Lobby rejected the argument that any

protection extended under RFRA had to be grounded in pre-Smith First Amendment case

law. The case, however, did not hold, as Petitioners would have the Court believe, that

any pre-Smith case law on any topic had no relevance to the interpretation of RFRA.11

The Court of Appeals’ approach in Rasul II, while referencing the intent of

Congress to “incorporate the standard governing free exercise claims” pre-Smith, 563

F.3d at 532, relied on broader principles governing the constitutional rights of non-

resident aliens. Rasul II explained that in enacting RFRA, “Congress legislated against

the background of precedent establishing that nonresident aliens were not were not

among the ‘person[s]’ protected by the Fifth Amendment, and were not among ‘the

people’ protected by the Fourth Amendment.” 563 F.3d at 533 (internal citations

omitted). Thus, Congress would have had to have intended that “person” in RFRA be

11 Indeed, the Court had no problem relying upon pre-Smith case law that supported application of RFRA to for-profit corporations. See 2014 WL 2921709 at *17.

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interpreted differently than how the term is construed for purposes of constitutional law

in rights-related contexts. The Court of Appeals in Rasul II rejected such a textual

disconnect.12 See id. While the Supreme Court in Hobby Lobby rejected the proposition

that protections under RFRA are limited to those specifically addressed in specific and

identical pre-Smith First Amendment case law, it did not address and had no occasion to

address the specific contextual factors relied upon by the Court of Appeals in Rasul II to

conclude that “person” under RFRA did not include nonresident aliens detained outside

the United States.

Second, Petitioners note that Hobby Lobby relied upon the definition of “person”

in the Dictionary Act in interpreting RFRA. E.g. Rabbani Emerg. Appl. at 5. From this,

Petitioners argue that inclusion of the term “individuals” within the Dictionary Act’s

definition of “person” necessarily means that “person” includes all “flesh-and-blood

human beings,” including noncitizens, regardless of circumstance or whether they are in

or resident in the United States. See id. (“that the detainees are at Guantanamo Bay

changes nothing”). That as Hobby Lobby observed, the Dictionary Act itself provides

that its definitions do not apply if “the context indicates otherwise.” 2014 WL 2921709

at *14. And Rasul II relied on such contextual factors in concluding that the term

“person” does not include non-resident aliens. Hobby Lobby did not consider or address

these matters, nor did it hold that the Dictionary Act’s definition of person applies

12 Notably, no such issue presented itself in Hobby Lobby given that corporations have both Fifth and Fourth Amendment rights. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (listing cases).

16


without qualification to all RFRA claims.13 Hobby Lobby only concerned the application

of RFRA to closely held for-profit corporations.

Further, even in addressing the application of RFRA to for-profit corporations, the

Supreme Court limited its holding to closely held for-profits, explicitly declining to reach

the issue of coverage of publicly traded, for-profit corporations. See 2014 WL 2921709

at *18. The Court simply saved for another day the issue of whether considerations of

context or other factors would dictate that publicly traded for-profit corporations be

included, or not, within RFRA’s coverage. See id. There would have been no reason for

the Court to so limit the reach of its decision had the Court been operating under the

simplistic view advocated by Petitioners, that is, that any “individual” or “corporation”

would be a “person” under RFRA by virtue of the language of the Dictionary Act,

regardless of any other consideration. The Supreme Court simply did not go that far with

respect to “corporations.” Likewise here, this Court cannot go so far as to conclude that

“person” under RFRA now includes any individual, even if a nonresident, noncitizen held

in military detention outside the United States.

At bottom, the Court in Hobby Lobby did not consider the definition of “person”

in RFRA as applied to nonresident aliens held by the U.S. military in detention overseas.

It did not address or consider Rasul II’s holding that, for purposes of deciding whether to

extend RFRA protections to such individuals, Congress had legislated against a backdrop

of decisions “establishing that nonresident aliens were not were not among the

13 Accordingly, Petitioners can get no mileage from the Supreme Court’s comment, made in the context of addressing the issue of whether RFRA attempted to “ossify” pre-Smith case law, asking whether a “resident noncitizen” should be excluded from RFRA protection simply because there was no pre-Smith case entertaining free-exercise claims by a resident noncitizen. See 2014 WL 2921709 at *17; E.g. Rabbani Emerg. Appl. at 5. If anything, the Court’s limitation of its rhetorical example to a U.S. “resident” alien supports that the Court eschewed delving into issues related to RFRA coverage for noncitizens who are not resident in the United States.

17


‘person[s]’ protected by the Fifth Amendment, and were not among ‘the people’

protected by the Fourth Amendment,” 563 F.3d at 533.

At a minimum, it certainly cannot be concluded that Hobby Lobby definitely

overruled Rasul II or now requires this Court to disregard that Court of Appeals

precedent. See Torres, 115 F.3d at 1036; see also Cooper Indust, 543 U.S. at 170. This

Court need not definitively resolve the precise impact of Hobby Lobby on Rasul II; the

Court need only determine whether Hobby Lobby clearly overruled Rasul II such that the

Court is free to disregard it. See Torres, 115 F.3d at 1036. Such a conclusion cannot be

reached here. This Court should continue to adhere to Rasul II, and under Rasul II

Petitioners cannot succeed on the merits of their RFRA claim.

III. PETITIONERS CANNOT DEMONSTRATE A LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE RFRA DOES NOT APPLY EXTRATERRITORIALLY TO GUANTANAMO BAY

In Rasul II the D.C. Circuit held that Guantanamo Bay detainees were not

among the category of protected persons under RFRA, reasoning that the detainees were

non-resident “aliens located outside sovereign United States territory at the time their

alleged RFRA claim arose.” 512 F.3d 644, 672 (2008); see Allaithi, 2014 WL 2575417

at * 6 (affirming prior holding). Consequently, the detainees’ extraterritorial location

provides a separate, dispositive basis to deny the requested temporary restraining order.

Simply put, Congress did not extend RFRA rights to the United States leasehold at

18


Guantanamo Bay.14 So even if the detainees would now qualify as “persons” under

RFRA, they still may not invoke that statute’s protections. 15

It is well settled that courts presume Congress does not intend its legislation to

apply extraterritorially unless it has clearly manifested its intent to do so. EEOC v.

Arabian American Oil Co., 499 U.S. 244, 248 (1991). This judicial presumption against

extraterritorial application of statutes recognizes the “commonsense notion” that

Congress generally legislates with domestic concerns in mind, and not to dictate the

rights of another country’s citizens abroad or to otherwise interfere with another

country’s sovereignty. Smith v. United States, 507 U.S. 197, 205 n.5 (1993).16 Of note,

this presumption is not defeated just because a statute may address some types of

extraterritorial application; the question of the breadth of Congress’ desired overseas

reach for the statute remains. Mircosoft Corp., 550 U.S. at 456. That Congress itself has

disavowed Guantanamo Bay as sovereign U.S. territory, Detainee Treatment Act §

14 See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T.S. No. 418 (noting that Cuba retains “ultimate sovereignty” over the territory leased to the United States at Guantanamo Bay, though the United States may exercise “complete jurisdiction and control”). 15 RFRA’s lack of extraterritorial application to Guantanamo Bay concededly affects not just the unprivileged enemy belligerents detained there, but also the citizens and resident aliens who live and work there. The military members and civilians residing at Guantanamo Bay, however, have First Amendment rights by virtue of their status, rights they brought with them to the Naval Station. See Reid v. Covert, 354 U.S. 1, 5-6 (1957) (applying Fifth Amendment rights to relatives accompanying military members assigned to United States bases overseas). 16Applying this presumption, the Supreme Court has routinely found that Congress did not intend for various statutes to apply overseas. See Morrison v. Nat’l Australia Bank Ltd., 130 S.Ct. 2869 (2010) (United States securities laws do not apply to transactions on foreign exchanges); Micorosoft Corp. v. AT&T Corp, 550 U.S. 437 (2007) (United States patent laws do not generally apply to overseas infringements); Smith v. United States, 507 U.S. 197 (1993) (Federal Tort Claims Act (FTCA) does not apply to injuries occurring in Antarctica); EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) (Title VII does not apply to United States citizen employed by an United States company overseas); United States v. Spelar, 338 U.S. 217 (1949) (FTCA does not apply to injury on leased overseas military base); Foley Bros. v. Filardo, 336 U.S. 281 (1949) (Eight Hour Wage Law does not apply to work performed for the United States in the Middle East). But see Rasul v. Bush, 542 U.S. 466 (2004) (federal habeas statute applies to unprivileged enemy belligerents detained at Guantanamo Bay); Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948) (Fair Labor Standards Act applies to leased overseas naval base).

19


1005(g), 10 U.S.C. § 801 note,17—and the Supreme Court has acknowledged this lack of

formal sovereignty, Boumediene, 553 U.S. at 753—confirms the presumption should

apply Guantanamo Bay.

Here, Congress having failed to clearly state that it intended RFRA to apply to

leaseholds like Guantanamo Bay, the statute cannot overcome the presumption against

extraterritorial application. RFRA provides a cause of action to “persons whose religious

exercise is substantially burdened by government.” 42 U.S.C. § 2000bb(b)(2). It defines

“government” as “a branch, department, agency, instrumentality, and official (or other

person acting under color of law) of the United States, or of a covered entity.” 42 U.S.C.

§ 2000bb-2(1). A “covered entity,” in turn, means the District of Columbia, the

Commonwealth of Puerto Rico, and each territory and possession of the United States.”

42 U.S.C. § 2000bb-2(2).

As framed by these definitions, the issue is whether RFRA’s reference to

“territories and possessions” is a clear statement that Congress intended to apply the

statute to anyone at Guantanamo Bay.18 Numerous statutes use phrases such as

“territories and possessions,” see Vermilya-Brown, 335 U.S. at 387 (listing statutes), and

17 Section 1005(g) provides: (g) United States defined.--For purposes of this section, the term ‘United States’, when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act [8 U.S.C.A. § 1101(a)(38)] and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba. 18 Under the presumption against extraterritorial application, the issue is where in the world does RFRA apply to bar a branch, department, agency, instrumentality, or official of the United States or of a covered entity from substantially burdening the free exercise of religion. That the members of the Joint Task Force—Guantanamo at Guantanamo Bay may be officials of the United States does not answer this question. Rather, the status of those officials is a necessary but not sufficient condition to raise the issue of the applicability of RFRA. For even given their status as officials of the United States, the question remains whether RFRA applies to their actions at Guantanamo Bay. Put another way, the actions of the United States in Guantanamo are not subject to RFRA unless RFRA applies extraterritorially to Guantanamo.

20


the application of those phrases depends upon the context and purpose of the statute. As

the Supreme Court stated in Vermilya-Brown, “[t]he word ‘possession’ is not a word of

art, descriptive of a recognized geographical or governmental entity.” Id. at 386. What

entities fall within the term “territory and possession” thus varies from statute to statute,

depending upon the “motive and purpose” of the statute: “our duty as a Court is to

construe the word ‘possession’ as our judgment instructs us the lawmakers, within

constitutional limits, would have done had they acted at the time of the legislation with

the present situation in mind.” Id. at 388. 19

In many contexts, the phrase “territories and possessions” has been construed to

encompass only areas in which the United States exercises sovereign authority. See, e.g,,

People of Saipan v. Department of the Interior, 502 F.2d 90, 95 (9th Cir. 1974) (holding

that the Trust Territory of the Pacific Islands “is not a territory or possession, because

technically the United States is a trustee rather than a sovereign”); District of Columbia

Nat’l Bank v. District of Columbia, 348 F.2d 808, 812 (D.C. Cir. 1965) (recognizing that

“a territory or possession may not tax the instrumentality of its sovereign without the

latter’s consent”); see also Presidential Proclamation No. 5928, 54 Fed. Reg. 777 (1988)

19 As set out above, Guantanamo Bay is not a “territory or possession” as that term is used in RFRA. Although the Supreme Court held in Vermilya-Brown that “possession” as used in the Fair Labor Standards Act (FLSA) included a leased military base on Bermuda, it did so because Congress, rather than using the word “possession” to refer to a type of government, used it to define the type of commerce subject to that statute. 335 U.S. at 379 (noting the statute explicitly applied to commerce “among the several States or from any State to any place outside of thereof,” with “State” defined to include “any Territory or possession of the United States”). The narrowness of this holding was subsequently confirmed by two other opinions that came down shortly thereafter, one in the same term and the other in the next, opinions that refused to impute extraterritorial intent to either the FTCA or the Eight Hour Law (which governed working hours and overtime for individuals working on contracts for the United States). See Foley Bros. v. Filardo, 336 U.S. 281(1948) (refusing to apply the Eight Hour Wage law to work performed overseas for the United States by a United States citizen working for a United States company, despite statutory language applying the Law to “[e]very contract made to which the United States . . . is a party”); United States v. Spelar, 338 U.S. 217 (1949) (holding that the Federal Tort Claims Act did not allow a cause of action for an injury to United States citizen on a leased overseas military base because the injury fell within the statute’s exception for “any claim arising in a foreign country”).

21


(extending “the territorial sea of the United States of America, the Commonwealth of

Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the

Commonwealth of the Northern Mariana Islands, and any other territory or possession

over which the United States exercises sovereignty”).

Congress enacted RFRA against the general background of these cases, and

RFRA’s language suggests that this narrower definition is what Congress had in mind. In

the statute as originally drafted, “government” was defined as including agencies and

officials of the United States, a State, or a subdivision of a State. The statute then

provided that “the term ‘State’ includes the District of Columbia, the Commonwealth of

Puerto Rico, and each territory and possession of the United States.” 42 U.S.C. §

2000bb-2(2) (1993).20 In this context, “territory and possession” appears in a list of

sovereign governments bound by RFRA. That suggests that the phrase refers to the

traditional definition of territories and possessions as areas over which the United States

is sovereign. In any event, the phrase is not a clear statement sufficient to overcome the

presumption against extraterritorial application.21

Consequently, RFRA does not apply to Guantanamo Bay. Although the Supreme

Court in Rasul v. Bush, 542 U.S. 466, 481 (2004), held that jurisdiction for purposes of

20 After the Supreme Court invalidated RFRA as applied to the states in 1997, see Hobby Lobby, 2014 WL 2921709 at *7-*8, Congress amended RFRA to delete reference to states, and instead included the “territory and possession” language in the definition of “covered entities.” There is no indication, however, that Congress intended a substantive change by doing so. 21 Legislative history provides no assistance in resolving the question of Congressional intent to apply RFRA to Guantanamo Bay. Only one statement is possibly relevant, that of Senator Thurmond made during consideration of the Religious Land Use and Institutionalized Persons Act, which included some minor amendments to RFRA. See 146 Cong. Rec. S7791, 7993 (Sept. 5, 2000) (statement of Sen. Thurmond). In these off-the-cuff remarks, the Senator merely related unconfirmed anecdotes concerning RFRA’s possible impact on the military overseas., This solitary, post-enactment statement by one Senator whose objection did not carry the day simply does not support an implication that Congress intended RFRA to constrain the Executive worldwide, let alone at the Guantanamo Bay detention facility. See Reno v. Bossier Parish School Bd., 520 U.S. 471, 484 (1997).

22


the habeas statute extended to Guantanamo Bay, the Court did not find that Guantanamo

itself was a federal territory. Also, while the Court specifically discussed the historical

reach of the writ of habeas corpus to “so-called ‘exempt jurisdictions,’ where ordinary

writs do not run, and all other dominions under the sovereign’s control,” id. at 482,

RFRA does not have a similarly long, historical reach.22

In summary, Congress did not intend to extend RFRA to Guantanamo Bay.

Acting against a backdrop of cases construing the term “territories or possessions” to be

limited to those over which the United States exercises sovereignty, Congress had only

“domestic concerns in mind” when it enacted RFRA. As both the Supreme Court and

Congress agree that formal sovereignty is lacking here—see Boumediene, 553 U.S.

at753; Detainee Treatment Act of 2005 § 1005(g)—the presumption against

extraterritorial applications of statutes applies here with full force. Consequently, the

Court should find that RFRA does not apply to the actions of the military officials

charged with detaining the unprivileged enemy belligerents at Guantanamo Bay.

Regardless, however, it is even more clear that RFRA should not be construed to

apply to a context that Congress clearly did not envision – the detention of unprivileged

enemy belligerents by the military overseas during ongoing hostilities. Military

operations during wartime have traditionally been left to the discretion of the Executive.

Courts are reluctant to interpret statutes in ways that allow litigants to interfere with the

22 Nor does Boumediene counsel a different result. There, the Supreme Court was concerned solely with the separation-of-powers issues embodied in the Suspension Clause, see 553 U.S. at 765-766, and not with the extraterritorial reach, or not, of a statute. Further, while the Court held that Guantanamo detainees have a procedural right under the Suspension Clause to file a habeas petition, and thus receive judicial review of “both the cause for detention and the Executive’s power to detain,” id. at 783, the Court emphasized that its decision “does not address the content of the law that governs petitioners’ detention,” id. at 798. Thus, the Court did not purport to address the applicability of a statute, such as RFRA, to detention, or conditions of confinement, at Guantanamo.

23


mission of the nation's military, preferring that Congress explicitly authorize suits that

implicate the command decisions of those charged with national defense. Lebron v.

Rumsfeld, 670 F.3d 540, 558-559 (4th Cir. 2012). Thus, “unless Congress specifically has

provided otherwise, courts traditionally have been reluctant to intrude upon the authority

of the Executive in military and national security affairs.” Department of Navy v. Egan,

484 U.S. 518, 530 (1988); see, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953);

Burns v. Wilson, 346 U.S. 137, 142, 144 (1953); Gilligan v. Morgan, 413 U.S. 1, 10

(1973).

In RFRA, Congress did not “specifically provid[e]” for the statute’s extension to

noncitizen enemy beligerents detained by the United States military overseas. Even if the

Court were to conclude that there is no explicit textual basis in the statute to prohibit suits

brought by nonresident aliens held at Guantánamo, courts may go beyond the text in

certain exceptional cases where “the literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters.” Rasul II, 563 F.3d at 535

(Brown, J., concurring) (citing Nat'l Pub. Radio, Inc. v. FCC, 254 F.3d 226, 230 (D.C.

Cir.2001)).23 Here, literal application of RFRA’s language to detainees held at

Guantánamo presents just such an exceptional situation. See id.

As Judge Brown pointed out in her concurring opinion, Congress, in drafting

RFRA, “was not focused on how to accommodate the important values of religious

toleration in the military detention setting.” Rasul II at 535-36. The Fourth Circuit also

has recognized that there are strong reasons to believe that RFRA does not apply to

23 To justify departure from the literal application of a statute, a party must “show that, as a matter of historical fact, Congress did not mean what it appears to have said, or that as a matter of logic and statutory structure, it almost surely could not have meant it.” Nat’l Public Radio, 254 F.3d at 230 (internal quotations omitted).

24


unprivileged enemy belligerents detained by the military. Lebron, 670 F.3d at 557. In

Lebron, a former detained enemy belligerent, who was a U.S. citizen detained in the

United States, alleged that his treatment during detention violated, among other things,

his federal statutory rights under RFRA, and he sought a damages remedy against U.S.

officials. In rejecting that the former detainee had a clearly established RFRA claim, the

court said that “to permit recovery in this case would be at odds with the positions of the

two coordinate branches to whom our Constitution has entrusted primary responsibility

for the conduct of military affairs.” Id. The court emphasized that when Congress

wishes to legislate with respect to the military, it does so with precision and it does so

both unmistakably and typically in those sections of the U.S. Code that apply to the

military. Id at 558-59. Citing Judge Brown’s concurrence in Rasul II, the court likewise

determined that it had no indication that Congress even considered the prospect of RFRA

actions brought by unprivileged enemy belligerents with anything like the care that it has

customarily devoted to matters of such highly sensitive military importance. Id. at 559-

60.

And, in fact, when Congress did legislate with regard to actions brought by enemy

belligerents, it made its intention clear that it did not intend RFRA to apply in the military

overseas detention context, for Congress has attempted, in no uncertain terms, to prevent

the detainees from asserting conditions-of-confinement claims in the courts.

In the Military Commissions Act of 2006 (MCA), Pub. L. No. 109–366, 120 Stat.

2600 (same) (codified in 28 U.S.C. § 2241(e)), for example, Congress made “crystal

clear” its intent to eliminate all forms of judicial review for Guantanamo detainees,

including in pending cases, except for the narrow review provisions provided for in the

25


Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739 (DTA). See

Bismullah v. Gates, 551 F.3d 1068, 1073 (D.C. Cir. 2009) (stating that “Congress’s

overriding goal throughout was to limit the judicial review available to detainees”). The

MCA expansively barred courts from considering both “an application for a writ of

habeas corpus” and “any other action against the United States or its agents relating to

any aspect of the detention, transfer, treatment, trial, or conditions of confinement.” See

28 U.S.C. 2241(e); see 152 Cong. Rec. S10403 (Sept. 28, 2006) (Sen. Cornyn) (MCA

“will substitute the blizzard of litigation instigated by Rasul v. Bush [542 U.S. 466

(2006)]” “with narrowly limited procedural review of the basis for detention”). Thus,

when Congress has spoken regarding conditions of confinement claims by military

detainees such as Petitioners held overseas, it has been to prevent such claims. See

Aamer, 742 F.3d at 1030 (stating that “Congress undoubtedly intended to preclude

federal courts from exercising jurisdiction over any claims brought by Guantanamo Bay

detainees”) (emphasis in original); Bismullah, 551 F.3d at 1073 (“The Congress’s

primary objective . . . was to limit the avenues for and scope of judicial review available

to detainees.”). Literal application of RFRA’s language to detainees held at Guantánamo,

thus, would “produce a result demonstrably at odds with the intentions of its drafters.”

Aamer is not to the contrary. Aamer merely analyzed the “current scope of

statutory habeas” to reach the conclusion that “one in custody may challenge the

conditions of his confinement in a petition for habeas corpus.” See Aamer, 742 F.3d at

1032. Aamer said nothing about the substantive law that would govern such claims, nor

did it purport to resolve what statutory rights, if any, Guantanamo Bay detainees would

be able to assert in such proceedings. Cf. at 1039 (“assum[ing] without deciding that the

26


constitutional right to be free from unwanted medical treatment extends to nonresident

aliens detained at Guantanamo”).24 For the reasons explained above, Congress could not

have intended that RFRA apply to permit claims by individuals such as Petitioners,

detained by the military overseas during ongoing hostilities, and Petitioners cannot look

to that statute to support their claims for injunctive relief.

CONCLUSION

Having not even averred that they desire to pray communally during Ramadan or

established that their religious exercise is substantially burdened at Guantanamo,

Petitioners have failed to even allege a prima facie case that his conditions of

confinement violate RFRA. For this fundamental reason alone, they are not entitled to

the extraordinary remedy of a temporary restraining order. Moreover, they are also not

entitled to such relief because Hobby Lobby does not require that this Court disregard the

binding precedent of this Circuit that unprivileged enemy belligerents detained at

Guantanamo Bay may not invoke RFRA. Further, Petitioners also may not appeal to

RFRA because it does not apply extraterritorially or to alien enemy belligerents detained

at Guantanamo. There being no basis for the requested relief, and for all the reasons

stated in Respondents’ previous opposition briefs to Petitioners’ initial applications,

Petitioners’ Emergency Applications should be denied.

24 Similarly, whatever the constitutional limit on Congress’s ability to restrict habeas claims by Guantanamo detainees, see supra note 19 (discussing Boumediene), Congress’s ability to make clear that a statute, such as RFRA, does not apply with respect to such detainees is not likewise limited.

27


8 July 2014 Respectfully submitted,

STUART F. DELERY Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch TERRY M. HENRY Assistant Branch Director /s/ Ronald J. Wiltsie RONALD J. WILTSIE (D.C Bar No. 431562) ROBERT J. PRINCE TIMOTHY B. WALTHALL JAMES J. SCHWARTZ (D.C. Bar No. 468625) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, DC 20530 Tel: (202) 307-1401 [email protected]

28


REVIEW OF DEPARTMENT COMPLIANCE WITH PRESIDENT’S EXECUTIVE ORDER ON DETAINEE CONDITIONS OF CONFINEMENT

Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 1 of 6

2

Table of Contents Table of Contents............................................................................................................................ 2 List of Appendices .......................................................................................................................... 3 Executive Summary ...................................................................................................................... 4 Introduction................................................................................................................................... 6 Methodology .................................................................................................................................. 7

Authorities................................................................................................................................... 8 Guantánamo Detention Policy and Practice .............................................................................. 8 Input from External Sources ....................................................................................................... 9 Orientation to Camp Operations .............................................................................................. 10 Joint Medical Group ................................................................................................................. 13 Joint Intelligence Group............................................................................................................ 15

Findings........................................................................................................................................ 16 Shelter ....................................................................................................................................... 17 Hygiene ..................................................................................................................................... 20 Clothing and Bedding ............................................................................................................... 21 Food and Water ........................................................................................................................ 23 Religious Practice ..................................................................................................................... 25 Recreation ................................................................................................................................. 27 Sleep .......................................................................................................................................... 29 Detainee Discipline System....................................................................................................... 30 Detainee Compliance with Camp Rules and Vetting Criteria .................................................. 32 Intellectual Stimulation ............................................................................................................. 34 Mail ........................................................................................................................................... 36 Protection from Violence .......................................................................................................... 38 Protection from Violence – Use of Force ................................................................................. 40 Protection from Violence—Forced Cell Extractions ................................................................ 42 Protection from Violence—Shackling....................................................................................... 44 Protection from Sensory Deprivation—Solitary Confinement ................................................. 45 Protection from Sensory Deprivation—Human-to-Human Contact......................................... 47 Protection from Humiliation..................................................................................................... 49 Healthcare Services—Quality of Care and Access................................................................... 51 Medical/Dental Confidentiality of Medical Records and Information ..................................... 54 Medical Ethics—Medical Treatment of Hunger Strikers.......................................................... 56 Healthcare Personnel Management—Behavioral Science Consultants (BSC) ........................ 59 Interrogation ............................................................................................................................. 61 Outside Access to Detainees ..................................................................................................... 64 Attorney Access to Detainee-Clients......................................................................................... 66 Detainees Ordered or Approved for Release............................................................................ 68 Repatriation/Transfer ............................................................................................................... 70

Conclusions .................................................................................................................................. 72 Glossary ....................................................................................................................................... 75 Bibliography ................................................................................................................................ 78


11

The camps are numbered in the order in which they opened. However, they can be categorized as follows: Communal Living Camp – Camp 4; Maximum Security Camps - Camps 1 through 3, 5 (including Camp 5 Echo Block), 6, and 7; Pre-Release-Transfer –Camp Iguana; and, Limited Use – Camp Echo. The following describe each camp. Communal Living Camp Camp 4, first occupied in February 2003, offers communal living, numerous recreation facilities, education and intellectual stimulation programs, and houses detainees considered the most compliant with camp rules. Unlike other camps, Camp 4 offers communal living in open-bay barracks with open access to fresh air in outdoor recreation and communal facilities throughout the day. It includes additional access to large recreation areas equipped with a basketball court, volleyball court, and soccer facility, during a specified four-hour period each day. Camp 4 has a media center equipped with satellite television, bench seating, and a classroom used to teach literacy and art. Maximum Security Camp 1, which became operational in April 2002, is an open-air facility with approximately 200 steel mesh single cells. Cells in this style camp offer the least unencumbered square feet of living space. Cells face each other, arranged in rows, with an equal number of cells on each side of the block. Camp 1 includes an outdoor exercise area for each block, equipped with a treadmill or elliptical machine. Camp 2 and Camp 3 are adjoining facilities. The cells are similar to Camp 1. Camps 2 and 3 became operational in October 2002, with a current capacity of about 400 detainees. Each Camp has 10 adjoining blocks of 24 to 48 cells each, and offer access to sunlit spaces throughout the day with the same sort of outdoor recreation facilities as Camp 1 for each block. Two cells in Camp 3 are now available for use as a movie room for detainees. Camp 5, a maximum-security facility built in April 2004, is a climate-controlled single cell facility with a capacity to hold 100 detainees. All occupied cells have a clear window to permit entry of sunlight. The facility resembles a hub and spoke design. The hub consists of a centrally located automated control center that enables staff to control all operations throughout the building, including ingress/egress, opening and closing of doors and other operations. The spokes consist of four, 2-story wings, each with two rows of adjoining cells that face each other, and one additional wing for administrative offices. Three outdoor recreation facilities are accessible from adjacent wings. The building has a climate controlled meeting room for legal representation and separate movie rooms on each tier for detainee use at specified periods throughout the day. Camp 5 Echo (part of Camp 5), first occupied by detainees in April 2008, is an open air facility with 24 individual adjoining steel mesh cells arranged in two parallel and equal rows – similar to Camp 1. The recreation facilities are similar to those found in Camps 1, 2, and 3, equipped with treadmills, elliptical machines and soccer balls; enabling a total of four detainees to participate in recreation simultaneously in four adjacent yards.


25

Religious Practice A. Legal/Policy Authority. Under DoDD 2310.01E, detainees are to be provided the opportunity for free exercise of their religion, consistent with requirements of detention. Additional reference material may be found in GPW (Art. 34), GCC (Art. 93), and AR 190-8 (6-7), which provide for complete latitude in the exercise of religious duties, including attendance at services, if they comply with the prescribed disciplinary routine. In addition, ministers of religion who are detainees should be allowed to minister freely to members of the community. B. Detainee/NGO Input. Use a Muslim Chaplain (when available) to train the guard force on how to be culturally and religiously sensitive to the detainees, including maintaining silence during prayer time. Respect religious items and books and provide regular prayer times. Provide for group prayer at all camps. C. Practice/Implementation. All detainees are provided one Koran in the language of their choice, in addition to an Arabic Koran and TafSeer. All detainees are provided prayer beads, cap, rug, and current prayer schedule.25 These items are retained by all detainees regardless of disciplinary status, unless deliberately used for self-harm or as a weapon. Guards and staff have received specialized cultural and religious sensitivity training. Cultural and religious considerations are also taken into account when assigning detainees to housing areas. Guards observe silence during all prayer times.

A monthly prayer schedule is published and call to prayer is sounded five times daily in all camps. Prayer is led within each camp and block by a detainee-selected prayer leader. In Camps 2, 3, 5, 6, and Echo group prayer is typically conducted by detainees from their individual cells. When this occurs, the food tray access doors of the prayer leaders are lowered to facilitate call to prayer on each block/tier. At times when detainees are engaged in group or communal activities and prayer call sounds, prayer is led by prayer leaders in person. In Camps 4 and Iguana, group prayer is conducted in communal areas of the camps. At Camp 7, prayer is conducted individually in their cells. Guard movement and activity is limited to only those actions required to maintain security. Visual signals are placed on each block/tier signifying quiet time. Each detainee cell and common area includes an arrow pointing towards Mecca.

The team observed that the Koran was respected at all times. Guards followed applicable guidance and did not touch the Koran, unless specifically authorized to do so by CJDG. We observed that the guards also took special precautions to respect the Koran when detainees would hold it and refuse to put it down before entry of an FCE team. Due to cultural sensitivities, modified frisk searching procedures are in place that respect the detainee’s groin area, and guards are not allowed to conduct frisk searches of this area. Guards are limited to grasping the waistband of detainees’ trousers, and shaking the pants. D. Team Analysis. All detainees are given wide latitude in the exercise of their religious beliefs and they are able to retain religious items at all times. Concerns raised in the early years of detention operations at Guantánamo highlighted the importance of respect for the religious 25 See Appendix 12, Figures 7-2, 7-5 through 7-9, and 7-12.


45

Protection from Sensory Deprivation—Solitary Confinement A. Legal/Policy Authority. Common Article 3. Under DoDD 2310.01E, detainees are to be treated humanely and respected as human beings. Sensory deprivation is not authorized. Additional reference material may be found in GPW (Art. 13, 17, 21, 22), GCC (Art. 27. 30-33, 84), and AR 190-8 (1-5, 6-1), which provides for individual or collective accommodations; and, where possible, to group detainees by nationality, language, or custom. Except for disciplinary or penal sanctions, detainees may not be held in “close confinement.” B. Detainee/NGO Input. Keep solitary confinement to a minimum. Solitary confinement must only be used as a deterrent against bad behavior and nothing else. Limit the amount of time in solitary confinement. The mental health of detainees in solitary confinement should be checked regularly by physicians. Stop holding detainees in Camps 5 and 6 in solitary confinement. C. Practice/Implementation. Detainees in Guantánamo are never placed in solitary confinement or isolation. All detention spaces and cells have been built to support a program that enhances the safety and security of both detainees and staff members alike. All detention cells, except in Camp 7, permit easy communication and interaction with other detainees in adjoining cells. In addition, all detainees are allowed times outside of their cells daily for communal recreation with other detainees in open air adjoining recreation spaces. Compliant detainees are offered no less than four hours recreation daily, and even noncompliant detainees in a discipline status are offered two hours recreation daily. Discipline is administered through a process of reduced levels of privileges, and not by use of isolation or solitary confinement. Detainees in Camp 7 are housed in cells that do not permit communication with adjacent cells. Detainees in Camp 7 also do not have the same level of socialization as detainees in other camps in Guantánamo.37 To mitigate the potential adverse effects of less socialization, Camp 7 detainees are offered the opportunity to socialize daily through four hours of recreation, and weekly through two hours of socialization management. This is a program that seeks to maintain detainees’ mental well-being through intellectual stimulation. D. Team Analysis. Solitary confinement is normally defined as confinement of a detainee in isolation from other detainees, and is not a procedure authorized for or applied to any detainees. Contrary to many criticisms, the facility designs of Camps 5 and 6 exceed those typical of medium and maximum-security detention facilities throughout the United States in terms of design, cell configuration, cell space, and ease of communications between cells. It is worth noting that JTF-Guantánamo handles detainees who are a threat to themselves, other detainees, or staff in the same way that detention facilities across the United States do so, through the use of single cells in maximum-security facilities. In fact, these cells, and many of the practices of JTF-Guantánamo in its maximum-security facilities, are utilized to mitigate threats posed by detainees to themselves, other detainees, and staff. JTF-Guantánamo has medium security facilities (Camp 4 and soon certain areas of Camp 6) available to detainees who follow camp rules and refrain from acts that could threaten themselves, other detainees, and staff. As described elsewhere in the report, JTF-Guantánamo has a vetting program to move detainees within and between camps, depending upon their behavior and threat level. Detainees are well 37 Commander, USSOUTHCOM has consistently sought to maximize socialization and intellectual stimulation during the time detainees have been held in Camp 7.


47

Protection from Sensory Deprivation—Human-to-Human Contact A. Legal/Policy Authority. Common Article 3. Under DoDD 2310.01E, detainees are to be treated humanely and respected as human beings. Sensory deprivation is not authorized. Additional reference material may be found in GPW (Art. 13, 17, 21, 22), GCC (Art. 27. 30-33, 84), and AR 190-8 (1-5, 6-1), which provides for individual or collective accommodations; and, where possible, to group detainees by nationality, language, or custom. Except for disciplinary or penal sanctions, detainees may not be held in “close confinement.” B. Detainee/NGO Input. Cease using sensory deprivation methods, such as goggles, during movements of detainees between camps or any other areas. Detainees should be allowed phone calls, video-teleconferences, and visits from family members. Immediate family members that are detainees should be allowed to visit or be housed together. Ensure proper translation of all information. Expand access to outside news (in several relevant languages) with little or no censorship. C. Practice/Implementation. Sensory deprivation is defined in FM 2.22-3 as an arranged situation causing significant psychological distress due to a prolonged absence, or significant reduction, of the usual external stimuli and perceptual opportunities. Sensory deprivation is prohibited. The use of goggling and earmuffs for security purposes is not prohibited in DoD policy or directives. FM 3-19.40 specifically contemplates the use of such devices for security purposes. During security transports of detainees outside of their respective camps, it is necessary to temporarily apply shielding devices for security purposes only. Blackened goggles and ear muffs are only placed on detainees for transports outside of their respective camps. These devices are immediately removed upon arrival to the point of destination. For all detainees, except those in Camp 7, telephone calls are continually offered on a rotational basis through the population, and all detainees are offered at least one call quarterly, and more frequently if logistically possible.38 Additionally, telephone calls can be approved for humanitarian purposes upon request. Camps 1-6, Echo and Iguana offer ample human-to-human contact daily. Detainees are housed within either individual adjoining cells or communal bays, and are allowed to see and speak in conversational tone with neighboring detainees in cells/bays, and while at recreation periods. Most of the detainees are offered recreation for a minimum of four hours daily, and detainees in a discipline status are offered at least two hours of recreation daily with other detainees in either adjoining or shared recreation areas. In addition, the guard force maintains a minimum of 3-minute checks on all detainees, and routine medical checks are conducted daily.

Camp 7 consists of single cells that do not allow for communication between cells. However, detainees there are allowed to recreate in adjacent, but separated open-air recreation spaces for at least four hours daily with a recreation partner. These detainees are also offered special socialization management opportunities once per week for two hours. 38 For a photo of a telephone room, see Appendix 12, Figure 11-1.


Case 1:05-cv-01704-RMU Document 87-1 Filed 07/11/08 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

USAMA HASSAN ABU KABIR, et al

Petitioners

v.

GEORGE . BUSH, et al..

Respondents.

) ) ) ) Civil Action

J ) ) ) )

DECLARA TJON OF BRUCE E. VARGO

05-CV-1704 (JR)

I, Bruce E. Vargo, pursuant to 28 U.S.C. § 1746, hereby declare and say as follows:

1. l am a Colonel in the United States Army with over 23 years of active duty service. l

currently serve as the Commander of the Joint Detention Group (JDG) for the Joint Task Force -

Guantanamo Bay Naval Base ("JTF-GTMO"). ! am responsible for all aspects of detention

operations for Camp Delta. I have served in this position since 30 June 2007. The information

provided in this declaration is based on my personal knowledge or information obtained in the

course of my official duties.

2. lt is my responsibility, among others. to see that the detention mission at Guantanamo is

performed in a humane manner that protects the safety and security of the detainees and the

military personnel at JTF-GTMO. lam familiar with all of the areas of detention within JTF-

GTMO, including the conditions and operational policies and procedures for each detention area.

3. Every detainee at JTF-GTMO is housed in an area that provides adequate shelter and

ventilation. Every detainee at JTF-GTMO has full time access to potable drinking water, a toilet,

a sleeping area.



2

each detention area within JTF-GTMO receive regular opportunities for recreation and regular

opportunities to maintain adequate personal hygiene. There are no soiitary confinement

detention areas at JTF-GTMO. Jn all detention areas, detainees have regular contact with other

detainees, guards, medical corpsmen who are present on the blocks and are available to conduct

med pass four times daily and sick call once a week, and other personnel involved in the delivery

of other services to detainees. As explained below, detainees are able to communicate with

other detainees either face-to-face or by spoken word from their cells throughout the day.

4. There are multiple facilities of varying levels of security at JTF-GTMO in which detainees

can be housed. Detainees are housed in accordance with their compliance with camp rules.

Detainees who are highly compliant are typically housed in Camp 4. Detainees who are not

classified as highly compliant are typically housed in the other facilities.

5. Camp 4 is a medium security, communal living detention facility, in which detainees reside in

open bays, with approximately five detainees per bay. They are able to recreate groups for up

to 20 hours per day, including three hours per day in the large recreation area. Detainees are able

to play games such as soccer, basketball and volleyball in the large recreation area. Detainees in

Camp 4 receive items such as athletic footwear, additional uniforms, and access to movies and

recorded television programs, in addition to the basic and comfort items issued in all other

camps. As in the other Camps, detainees in Camp 4 are constantly monitored by guard staff and

regularly visited by medical personnel, the International Committee of the Red Cross (ICRC),

and are moved in and out of their cell blocks for various reasons, including daily recreation,

medical appomtm<:nts



3

6. Camp 4 also constitutes JTF-GTMO's most dangerous environment because of the detainees'

ability to plan and act as a group. In 2005, a detainee plot was uncovered to commandeer a food

service truck and use the vehicle to inj urc or kill guard staff On 18 May 2006, guard staff

members, upon entering a housing block. were attacked by detainees inside. A guard was

beaten with a baton and other instruments were used to assault and threaten other guards.

Eventually, less than lethal weapons were employed by the guard staff in order to regain control

of the housing block and rescue the guard staff Immediately after the guard staff was rescued,

detainees in several other cell blocks began rioting and physically damaging their housing

blocks. By the time the incident was finally over, several hundred thousand dollars worth of

damage had been inflicted, requiring repairs that, to date, are not folly completed. Because of

this potential for group violence, detainees placed in Camp 4 axe constantly assessed for their

compliance levels, propensity for indiscipline, and population suitability.

7. Unlike Camp 4, other camps in the JDG area of responsibility, specifically Camps 5 and 6,

are comparable to. and modeled after single cell detention maximum security facilities in the

United States. No detainees are held in isolation. Detainees are permitted to speak to one

another from their cells and participate in uninterrupted group prayer (led hy a block detainee

imam of their choosing) five times per day. All detainees housed in these camps have multiple

opportunities for daily interaction with other detainees and camp personnel. The cells have solid

walls, but detainees can talk with other detainees in adjoining cells and with detainees housed

near them, as well as with guards, medical staff, library and mail delivery personnel. "vhen

fully secured \Vith feed closed, cells Camps S 6

other w1rrn n a group or Is



4

Camp 5 and "pods" in Camp 6). With a raised voice, an individual detainee located in a cell on

one end of a block or pod can readily and effectively communicate with a detainee on the

opposite end of the block or pod. This free communication is not discouraged. facL for the

duration of the five separate thirty-minute prayer calls during each day, feed tray slots are opened

to facilitate just such co111munication betvveen detainees order to coordinate prayer call.

Additionally, detainees in these camps receive a minimum of two hours of outdoor recreation per

day in single detainee recreation areas. Detainees vvho are not in a disciplinary status are

permitted to recreate with another detainee in the same recreation yard and with other detainees

who are in adjacent recreation areas. All recreation areas are formed with standard chain link

fencing which facilitates easy communication between them. Detainees are also allowed two

books and one magazine to be in their possession at any given time. Detainees in these camps

are also permitted to send and receive regular maii, ICRC mail, and legal (privileged) mail (if

they are represented by counsel). Detainees in these camps are viewed every three minutes by

guard staft~ regularly visited by medical personnel, routinely visited by the !CRC, and transferred

in and out of their cells for various reasons, including daily recreation, medical appointments,

intelligence interviews, and legal visits. All camps are lit by a combination of natural and

artificial light.

8. Both the camp in which a detainee is housed and the privileges which are afforded

detainee are determined largely by the detainee and his activities while in detention. As with any

detention or correctional institution. custody and control measures at JTF-GTMO are in place to

maintain good personnel



5

the current population of Camp 4 (e.g., whether the detainee's disposition is compatible with the

cmTent population of the camp). Only after detainee is successfolly is a 1no\re into

Camp 4 ordered. Once in Camp 4. a detainee is subject to immediate removal for acts of

indiscipline and can be removed for a failure to assimilate into current population. 1~11

detainees in Camp 4 are advised of this policy upon entry into Camp 4.

9. On 2 July 2008, some detainees were moved from Camp 6 to Camp 4, using the vetting

process described above. As with all detainees placed in Camp 4, these detainees will continue

to be assessed for their compliance levels, propensity for indiscipline. and population suitability.

As noted above, once in Camp 4, the JDG exercises a near zero tolerance policy for infractions

&'1d detainees who fail to comply with camp rules are removed to other camps. A detainee

housed in Camp 4, therefore, controls, through his behavior, whether he remains in the camp or

is moved to one of the more restrictive camps.

I 0. Although other Uighers were moved to Camp 4 on 2 July 2008, the petitioners in this case,

Bahtiyar Mahnut (!SN 277) and Arkin Mahmud (ISN l 03), were not moved into Camp 4 at that

time. Instead, these two detainees remain housed in Camp 6 due to their history of misconduct.

a. Since March 2003. !SN l 03 has committed 92 disciplinary infractions. consisting of

32 failures to comply with the guard force, 9 citations for possession of contraband, 6 citations

for damage to government property, I offense requiring a forced cell extraction, I attempted

assault on the guard force, 13 assaults on the guard force. 6 citations for participating in mass

disturbances, 1 7 threats to guard force, 6 cit;1t1cms for provoking

exposure



6

consisting of 4 faiiurcs to comply with the guard force in April, 2 in March, and l in February; l

citation for possession of contraband in May and one in February; 2 assaults on guard staff in

May; J attempted assault in ApriL J threat to the guard force in May; and 2 instances of

provoking words ApriL

b. Since March 2003, !SN 277 has committed 44 disciplinary infractions, consisting of

17 failures to comply, 7 citations for possession of contraband, I attempted assault on the guard

force, 8 assaults on the guard force, 4 citations for provoking words and gestures, 2 citations for

damage to government property, 2 offenses requiring forced eel! extraction, 2 citations for

participating in a mass disturbance, and I threat to the guard force. In 2008 alone, !SN 277 has

committed 6 infractions consisting of 2 failures to comply with the guard force in March, 1

citation for possession of contraband in May, 2 assaults on guard staff in March. and l

attempted assault in February.

11. Consistent with JTF-GTMO practice, the behavior of !SN 103 and !SN 277 will continue to

be assessed and their eligibility for placement in Camp 4 will be reevaluated on a regular basis.

12. It is noteworthy that in March 2007, several members of the detained Uighur population

were transferred from Camp 6 to Camp L where they were eligible to receive a greater range of

privileges. The transferred detainees were then notified that their behavior and compliance \vith

camp rules could possibly lead to a further transfer to Camp 4. From March until June of 2007,

several Uighur detainees in Camp l. including ISNs ] 03 and 277, committed a myriad of

March 2007,

l 03 vvas cited fcjr a mass disturbance and



7

l 3. All Uighur detainees in Camp 6 reside on the same pod. Since March 2008, the Uighur

detainees in Camp 6 have enjoyed extended and more flexible recreation times, as have other

detainees Camp 6. They, and other qualified detainees, arc also permitted to engage dual

recreation, which allows for two detainees in a single recreation yard, vice less compliant

detainee standard of only one detainee per recreation yard. These qualified detainees are also

allowed extended shower and dining times

14. I have been informed that counsel for ISNs 103 and 277 have filed a motion demanding

these two detainees be transferred to Camp 4. As noted above, placement in Camp 4 is based on

an assessment of detainee compliance with camp regulations and Camp 4 population suitability.

These criteria prevent transfer to Camp 4 of detainees who are instigators, habitual offenders of

camp regulations, violent detainees, suicide risks, detainees with psychological issues, and those

who are, or are suspected to be, disruptive to their follow detainees. As described above, a

review of !SN ] 03 's record indicates 92 disciplinary infractions, with ! 5 in 2008 alone,

including assault and threats of assault to the guard force in May. A review of !SN 27Ts

record indicates 44 disciplimi.ry infractions, with 6 infractions in 2008 alone, including

possession of contraband in May, two assaults on guard staff in March, and an attempted assault

in February. Based upon a totality of their conduct and proximity to camp disturbances, the

behavior of ISNs l 03 and 277 is inconsistent with a transfer to Camp 4.

1 declare under the penalty of perjury under the laws of the United States that the

foregoing is true and correct

2008.



MOHAMMED AHMAD GHULAM RABBANI (ISN 1461), Petitioner,

v.

BARACK H. OBAMA, et al., Respondents.

Civil Action No. 05-CV-1607 (RCL)

O R D E R

Upon consideration of Petitioner’s Emergency Application For A Temporary

Restraining Order Prohibiting Respondents From Depriving Petitioner Of The Right To

Pray Communally During The Month Of Ramadan, Respondents’ opposition thereto, and

Petitioner’s reply, it is hereby ORDERED that the Application is DENIED.

_________________ ___________________________ Date The Honorable Gladys Kessler

United States District Judge



IMAD ABDULLAH HASSAN (ISN 680),

Petitioner,

v.

BARACK H. OBAMA, et al.,

Respondents.

Civil Action No. 04-cv-1194 (UNA)

ORDER

Upon consideration of Petitioner’s Emergency Application For A

Temporary Restraining Order Prohibiting Respondents From Depriving Petitioner Of The

Right To Pray Communally During The Month Of Ramadan and Respondents opposition

thereto, it is hereby ORDERED that the application is DENIED.

_________________ ___________________________ Date The Honorable Gladys Kessler

United States District Judge


doj: guantanamo detainees aren't 'persons' under the law

Documents

depriving petitioners

month of ramadan petitioners

petitioners failure

petitioners applications

rfra rights

hassan emergency application

petitioner rabbanis

respondents opposition