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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

TARIQ MAHMOUD ALSAWAM, :

Petitioner, :

v. : 05-cv-1244 (CKK)

BARACK OBAMA, et al., :

Respondents. :

EMERGENCY MOTION FOR INTERIM RELIEFAND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Petitioner Tarek Mahmoud El Sawah respectfully moves this Honorable Court to issue1

the attached proposed order directing the government to release him and return him to his native

country of Egypt, pending a hearing before the Periodic Review Board or the resolution of his

habeas petition. Due to the overwhelming evidence that continued law of war detention is not2

necessary, there is a substantial likelihood that Mr. El Sawah will succeed before both the

Periodic Review Board and at the merits hearing before this Court. Absent interim relief, Mr. El

Sawah will continue to suffer the irreparable harm of continued unwarranted detention.

Therefore, Mr. El Sawah requests interim relief of release pending the resolution of these

matters.

This matter is captioned “Tariq Mahmoud Alsawam” due to a clerical error that occurred1

when Mr. El Sawah’s pro se habeas petition was docketed.

As required by Local Civil Rule 7(m), undersigned counsel contacted counsel for the2

Respondents before filing this motion, who represented that the Respondents will oppose thismotion.

Case 1:05-cv-01244-CKK Document 291 Filed 10/10/12 of 13

In support of this motion, undersigned counsel submits the following. In addition,

counsel has submitted, via the Court Security Officer and under seal, a supplement containing

classified and protected information.

Procedural and Factual Background

In late 2001, members of the Northern Alliance in Afghanistan arrested Mr. El Sawah and

turned him over to the custody of the United States. The U.S. military held him for a period of

time in Afghanistan and then transferred him to the U.S. Naval Station in Guantanamo Bay,

Cuba. On June 22, 2005, Mr. El Sawah filed a petition for writ of habeas corpus in this matter.

On November 18, 2008, the government filed Respondents’ Statement of Legal Justification for

Detention, asserting that Mr. El Sawah is detained pursuant to the President’s power to detain

enemy combatants under the Authorization for Use of Military Force (herein after “AUMF”),

Pub. L. No. 107-40, 115 Stat. 224 (2001). On October 20, 2008, the government filed a

Classified Factual Return, and on December 12, 2008, the government filed an unclassified

version of the factual return. On July 30, 2010, Mr. El Sawah filed a Traverse, denying the

government’s allegations.

On December 16, 2008, the Department of Defense “preferred” charges against Mr. El

Sawah. Although the charges were pending for more than three years, the government did not

pursue the charges or refer them to a military commission. On March 1, 2012, the charges were

dismissed. See Attachment A (Order of Convening Authority for Military Commissions).

Although the charges were dismissed “without prejudice,” the Office of Military Commissions

Prosecutions does not intend to pursue charges against Mr. El Sawah. See Attachment B (Letter

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from Convening Authority for Military Commissions). Thus, Mr. El Sawah is not being held for

the purpose of prosecution.

The AUMF authorizes detention for the purpose of preventing a detainee from serving the

enemy. See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004). On March 7, 2011, the President

issued an Executive Order, directing that the “Secretary of Defense shall coordinate a process of

periodic review of continued law of war detention” for Guantanamo Bay detainees. Exec. Order

No. 13567, 76 Fed. Reg. 13,277 (Mar. 7, 2011) (attached hereto as Attachment J). The Order

directs that “[c]ontinued law of war detention is warranted . . . if it is necessary to protect against

a significant threat to the security of the United States.” Id. at 13,277. The Order provides that

“[f]or each detainee, an initial review shall commence as soon as possible but no later than 1 year

from the date of this order.” Id. The Deputy Secretary of Defense, however, did not issue

guidelines implementing the Executive Order until May 9, 2012. The guidelines establish a

Periodic Review Board and provide for a process of review to begin 60 days from the issuance of

the guidelines. Despite this requirement, to date, no detainee’s case has been reviewed and no

date has been set for the review process to begin.

Mr. El Sawah is not held for the purpose of preventing him from “returning to the

battlefield” or serving the enemy. His continued detention is not necessary to protect against any

threat to the security of the United States. As numerous current and former, high-ranking U.S.

military officials have certified, it is highly unlikely that Mr. El Sawah would establish ties with

al-Qa’ida, the Taliban, or other associated forces if released. See Attachment C (Letter from

Major General Jay W. Hood), Attachment D (Letter from Rear Admiral D. M. Thomas, Jr.),

Attachment E (Letter from Vice Admiral T. H. Copeman), Attachment F (Letter from

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Intelligence Officer). In fact, Mr. El Sawah could not join enemy forces. See Supplemental

Classified and Protected Information in Support of Motion for Interim Relief. Throughout his

nearly eleven years of detention, Mr. El Sawah has been compliant with the detaining authorities

and has affirmatively demonstrated to the satisfaction of every individual who has had direct

interaction with him that he is not a threat to the United States and should be released.

United States Army (Retired) Major General Jay W. Hood was the Commander of the

Joint Task Force in Guantanamo Bay from March 2004 to March 2006. See Attachment C.

During this time period, he became very familiar with Mr. El Sawah through personal

interactions and observations and through briefings. Id. It is his opinion that: (1) “there is little

to no chance that [Mr. El Sawah] would return to any violent Islamic organization;” (2) Mr. El

Sawah “poses no significant threat to the security of the United States, our friends or allies;” and

(3) Mr. El Sawah’s “continued law of war detention by the United States Government is no

longer necessary.” Id.

United States Navy Rear Admiral D. M. Thomas, Jr., who was the Commander of the

Joint Task Force at Guantanamo Bay from May 2008 to June 2009 and is the current Commander

of the Naval Surface Force Atlantic, similarly is “thoroughly familiar” with Mr. El Sawah and is

of the opinion that he “no longer poses a significant threat to the security of the United States and

his continued law of war detention is not necessary.” See Attachment D. Rear Admiral Thomas,

like Major General Hood, “strongly encourages” Mr. El Sawah’s release. Id.

United States Navy Vice Admiral T. H. Copeman, the Commander at Guantanamo from

June 2009 to June 2010 and current Commander of the Naval Surface Force, Pacific Fleet, shares

the opinion that Mr. El Sawah’s detention is unnecessary and also has submitted a letter in

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support of his release. See Attachment E. The opinions of these previous Guantanamo

Commanders will be submitted to the Periodic Review Board and to the Court at the merits

hearing in this matter, and there will be no contrary opinion from any military official who has

personally interacted with Mr. El Sawah and is familiar with his case.

In fact, the military officer who spoke to Mr. El Sawah for several hours every week for

eighteen months between 2002 and 2004 and knows more about Mr. El Sawah than any other

U.S. government official, strongly encourages Mr. El Sawah’s release. See Attachment F. This

former intelligence officer has submitted a letter directed to the Periodic Review Board,

affirming that Mr. El Sawah is “a good and decent man who should be released.” Id. The officer

notes that he is familiar with “everything about [Mr. El Sawah’s] background, the circumstances

of his capture and detention, and his nature as a human being” and states that Mr. El Sawah “had

a very different mindset from the radical Islamists who formed the vast majority of the detainee

population, and it was clear to [the officer] that [Mr. El Sawah] had no desire to harm United

States personnel.” Id. Again, this view of Mr. El Sawah will be presented to the Periodic

Review Board and at the merits hearing and will not be contradicted.

In addition to having the support of military officials, the current state of Mr. El Sawah’s

health demonstrates that Mr. El Sawah would not be a danger to the United States if released.

See Attachment G (Letter from Dr. Sondra Crosby). Mr. El Sawah now weighs over 420 pounds

and has multiple serious -- life threatening -- medical conditions. Id. His health has so

deteriorated over the last ten years that he has trouble performing even the most basic daily tasks.

Id.

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Finally, in addition to there being no purpose for his detention, Mr. El Sawah’s home

country not only is willing to accept his return, but has affirmatively requested his return. See

Attachment H (Letter from Minister of Foreign Affairs, The Arab Republic of Egypt). On July

26, 2012, Mohamed Amr, the Minister of Foreign Affairs of Egypt sent a letter to Secretary of

State Hillary Rodham Clinton, requesting the release and return of Mr. El Sawah to Egypt. Id.

Argument

When reviewing a request for interim relief, the Court must consider four factors: “(1)

the moving party’s likelihood of success on the merits; (2) irreparable injury to the moving party

if an injunction is denied; (3) substantial injury to the opposing party if an injunction is granted;

and (4) the public interest.” Kiyemba v. Obama, 561 F.3d 509, 513 (D.C. Cir. 2009) (finding

issue of potential transfer of Guantanamo detainees a proper subject for interim habeas relief, but

rejecting request on merits). Here, each of these factors weighs in favor of granting Mr. El

Sawah the interim relief of release pending a final hearing before the Periodic Review Board or

this Court.

I. SUBSTANTIAL LIKELIHOOD OF SUCCESS.

A. Periodic Review Board.

The President has directed the Department of Defense to establish a review process for

detainees. See Exec. Order No. 13567. In response, the Department of Defense has established

the Periodic Review Board and guidelines for determining whether or not continued detention is

necessary for each detainee. The Executive Order directs that “[c]ontinued law of war detention

is warranted . . . if it is necessary to protect against a significant threat to the security of the

United States,” id. at 13,277, and the guidelines provide a process for making this determination.

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When making this determination, the Periodic Review Board may consider numerous

factors, including:

(1) The detainee’s involvement in terrorist activities;

(2) “The detainee’s conduct when acting as part of, orsubstantially supporting, Taliban or al-Qa’ida forces or associatedforces that are engaged in hostilities against the United States or itscoalition partners;”

(3) The detainee’s knowledge, training and skills used for terroristpurposes;

(4) “The nature and extent of the detainee’s ties with individualterrorists, terrorist organizations, terrorist support networks, orother extremists;”

(5) “Information pertaining to the likelihood that the detaineeintends to or is likely to engage in terrorist activities upon histransfer or release;”

(6) “Information pertaining to the likelihood that the detainee willreestablish ties with al-Qa’ida, the Taliban, or associated forcesthat are engaged in hostilities against the United States or itscoalition partners, and information pertaining to whether the groupthe detainee was part of at the time of capture is now defunct;”

(7) The “potential destination country for the detainee,” includingfamily support within that country;

(8) “The likelihood the detainee may be subject to trial by militarycommission, or any other law enforcement interest in thedetainee;”

(9) “The detainee’s conduct in custody, including behavior, habits,traits, rehabilitation efforts, and whether the detainee wasconsidered a danger to other detainees or other individuals;”

(10) “The detainee’s physical and psychological condition;” and

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(11) “Any other relevant information bearing on the nationalsecurity and foreign policy interests of the United States or theinterests of justice.”

See Attachment I (Guidelines) at 6-8.

Even if, prior to his capture, Mr. El Sawah engaged in all of the activities alleged against

him and has all of the skills he is alleged to have, the remaining factors weigh heavily in support3

of his release. As described above and in Mr. El Sawah’s supplemental filing, top military

officials have concluded that it is “highly unlikely” that Mr. El Sawah would participate in

terrorist activities or “reestablish ties” with terrorists if released. Mr. El Sawah was never

“ideologically committed to violent Islamic extremism.” Attachment C (Letter from Major

General Jay W. Hood); see also Attachment F (Letter from Intelligence Officer) (Mr. El Sawah

“had a very different mindset from the radical Islamists who formed the vast majority of the

detainee population”).

Mr. El Sawah’s “potential destination country” is Egypt, and the Egyptian government

has requested his return. Egypt has been a friend to the United States, and the United States no

doubt has national security and foreign policy interests in maintaining that friendship and

honoring the request for Mr. El Sawah’s return (particularly when there is no basis for continuing

to detain him). Mr. El Sawah has many family members in Egypt who are willing and able to

provide support for him upon his release. See Attachment K (Declaration of Jamal El Sawah).

Other factors also support release. The military commissions prosecutors have affirmed

that they do not currently intend to prosecute Mr. El Sawah. Mr. El Sawah’s conduct while

As the Court may recall, undersigned counsel has previously submitted substantial3

evidence to the Court demonstrating that the allegations are not true.

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detained -- as the military officers cited above have attested -- has been commendable, and he is

not a danger to anyone. His physical and psychological condition have deteriorated while

detained, and this deterioration further reduces any possible likelihood of engaging in future bad

acts. For all of these reasons, there is more than a substantial likelihood -- in fact there is no

reasonable doubt -- that the Periodic Review Board will find that he should be released.

B. Habeas Petition.

The Supreme Court has held that “[t]he habeas court must have sufficient authority to

conduct a meaningful review of both the cause for detention and the Executive’s power to

detain,” and that detainees must have an opportunity to present “reasonably available evidence

demonstrating there is no basis for his continued detention.” Boumediene v. Bush, 553 U.S. 723,4

783, 790 (2008) (emphasis added). By its plain terms, the AUMF does not grant unlimited

power to detain. The AUMF permits “necessary and appropriate force,” and therefore detention,

only for the limited purpose of preventing “future acts of international terrorism” by detainees.

Basardh v. Obama, 612 F. Supp. 2d 30, 34 (D.D.C. 2009) (“[T]he AUMF . . . cannot be read to

authorize detention where its purpose can no longer be attained.”); see also Hamdi v. Rumsfeld,

542 U.S. 507, 517-18 (2004) (“‘It is now recognized that “[c]aptivity is neither a punishment nor

an act of vengeance,” but “merely a temporary detention which is devoid of all penal character.” .

. . “A prisoner of war is no convict; his imprisonment is a simple war measure.”’”). It follows

that the continued detention of a person who no longer poses a threat to the United States is not

The government, in fact, has recognized a detainee’s right to challenge not only the4

legality, but the duration of his detention. See Kiyemba v. Obama, 561 F.3d 509, 512 (D.C. Cir.2009) (noting government’s position that detainees could raise claims only within “core” ofhabeas rights, “such as a challenge to the petitioner’s detention or the duration thereof.”); seealso Kiyemba v. Bush, Supplemental Brief for Appellants, 2008 WL 3920738, at *9-15 (same).

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authorized by the AUMF. Basardh, 612 F. Supp. 2d at 35. When a detainee has demonstrated5

that he not only would not, but could not serve the enemy, the government can no longer lawfully

detain him.

Even if the AUMF could be interpreted to authorized detention when the purposes of

detention are no longer served, such an interpretation would violate due process as guaranteed by

the Constitution. Cf. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (continued detention pending

deportation requires determination of current likelihood of repatriation, and if removal not

reasonably foreseeable, release required because purposes of detention no longer served by

detention); Ngo v. I.N.S., 192 F.3d 390, 398 (3d Cir. 1999) (immigration confinement may not

continue beyond the time when original justifications for custody are no longer tenable); see also

Kansas v. Hendricks, 521 U.S. 346, 35 (1997) (civil commitment requires finding of current

danger to community); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (if individual subject to civil

commitment judged “safe to be at large,” immediate release required).

The Executive has repeatedly recognized that the purposes of detention under the AUMF5

is limited to prevent future harm and that the determination to detain or continue detention mustbe based on an individual’s current status. See Order Establishing Combatant Status ReviewTribunals issued by Deputy Secretary of Defense Wolfowitz (July 7, 2004) (providing for therelease of individuals who are no longer enemy combatants, recognizing that current status of adetainee determines authority to detain); Order, Administrative Review Procedures for EnemyCombatants in the control of the Department of Defense at Guantanamo Bay Naval Base, Cuba,1 (May 11, 2004) (recognizing that law of war permits “detention for practical purposes ofpreventing the enemy from rejoining the conflict”); Final Report of the Guantanamo ReviewTask Force (January 22, 2010) at 8, available at http://media.washingtonpost.com/wp-srv/nation/pdf/GTMOtaskforcereport_052810.pdf (recognizing that the purpose of detentionunder AUMF is to prevent detainees “from ‘returning to the field of battle and taking up armsonce again.’”); Exec. Order No. 13567 (continued detention warranted only if “necessary toprotect against a significant threat to the security of the United States”).

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Here, the record overwhelmingly demonstrates that Mr. El Sawah would not rejoin any

conflict and would not be a danger to the United States if released. Even if every allegation the

government has ever made with regard to Mr. El Sawah’s actions prior to his detention were true,

Mr. El Sawah would not be a danger to the United States if released at this time. As in

Basardh, the government has no rational basis upon which to support continued detention.

While Mr. El Sawah’s alleged previous participation with extremist groups certainly has some

probative value with respect to whether he currently poses a threat to the United States, any such

evidence is rebutted by the resounding evidence that he is not a threat.

II. IRREPARABLE HARM OF CONTINUED UNLAWFUL DETENTION.

Mr. El Sawah filed his habeas petition in this matter in 2005. The resolution of the

petition, however, has been repeatedly delayed. Initially, delay related to the resolution of legal

issues by the Supreme Court. After the Supreme Court issued its decision in Boumediene on

June 12, 2008, the delay related to the resolution of procedural issues. Subsequently, the delay

related to the government’s suggestion that it may prosecute Mr. El Sawah before a military

commission -- a plan which now appears has been aborted. Most recently, the delay has related

to the resolution of discovery issues -- which is primarily attributable to the government’s

decision to slowly trickle out exculpatory evidence to Mr. El Sawah’s counsel, resulting in the

need for additional discovery requests and motions to compel. Only recently did the government

agree to a motions schedule. The resolution of motions is likely to take months, and the merits

hearing is not likely to occur until next year.

The Periodic Review Board process similarly has been repeatedly delayed. Although the

President directed that the reviews must begin within one year of March 7, 2011 Executive

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Order, the Department of Defense did not issue guidelines for the review process until May of

2012, and has yet to begin the reviews.

Each day that passes, Mr. El Sawah suffers irreparable harm. Each day is one more day

of detention, one more day of lost freedom, and one more day of lost time spent with his family.

Given his deteriorating health condition, Mr. El Sawah may not survive the time that it is likely

to take to resolve his habeas petition or obtain a Periodic Review Board hearing. See

Attachment G.

Given the indisputable evidence that Mr. El Sawah presents no threat to the security of

the United States, associated forces, or anyone else, there is a the substantial likelihood that the

Periodic Review Board and/or this Court will order Mr. El Sawah’s release. The Court should

not permit the government to irreparably harm Mr. El Sawah through continued unnecessary and

unlawful detention. Instead, the Court should order Mr. El Sawah’s immediate release.

III. NO SUBSTANTIAL INJURY TO THE GOVERNMENT.

Detaining Mr. El Sawah is not necessary to preserve the government’s interest in

pursuing a ruling from the Periodic Review Board, this Court or a military commission, and

releasing Mr. El Sawah would cause no substantial injury to the government. As set forth above,

Mr. El Sawah would present no danger to the United States if released. Additionally, the

government does not intend to prosecute Mr. El Sawah for alleged war crimes “at this time or in

the near future.” See Attachment B. If the government’s position changes in the distant future,

and Mr. El Sawah has not passed away from old age by that time, he can be extradited under the

current extradition treaty with Egypt. See 18 U.S.C. § 3181; 19 Stat 572, 1875 WL 17431 (U.S.

Treaty); see also United States v. Levy, 25 F.3d 146 (2d Cir. 1994) (rejecting claim that

12


government’s conduct regarding extradition from Egypt barred prosecution). Thus, there would

be no injury to the government if the Court grants the interim relief Mr. El Sawah seeks.

IV. PUBLIC INTEREST.

Finally, because Mr. El Sawah would present no danger if released, the public has no

interest in detaining him. In fact, the public interest supports releasing a detainee where there is

no basis for detention.

Conclusion

For the foregoing reasons, the Court should issue the attached proposed order, directing

the government to release Mr. El Sawah.

Respectfully submitted,

A. J. KRAMERFEDERAL PUBLIC DEFENDER

/s/____________________________ MARY MANNING PETRASAssistant Federal Public Defender625 Indiana Avenue, N.W.Suite 550Washington, D.C. 20004(202) 208-7500

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