Gitmo Money

EXHIBIT 1
DECLARATION OF JAY ALAN LIOTTA

Case l:05-cv-00392-UNA Document 357-l Filed 04/ll/l4 Page l of 4
Case l:05-cv-00392-UNA Document 357-l Filed 04/ll/l4 Page 2 of 4

EXHIBIT A
Case l:05-cv-00392-UNA Document 35l-l Filed 03/07/l4 Page l of 8
!"#$%
&#% Wells ulxon,
'()*+,-% ueclaraLlon of u[amel Amezlane
./-+% 1hursday, lebruary 13, 2014 6:03:04 AM

uLCLA8A1lCn uL u!AMLL AMLZlAnL

!e, u[amel AMLZlAnL, arrLe ce qul sulL :

!e suls un clLoyen algerlen qul a eLe emprlsonne a la base navale des LLaLs-
unls a CuanaLanamo, Cuba pres de

douze ans.
!'al eLe Lransfere de CuanLanamo le 04 decembre 2013 au Lour de Lrols
heures du maLln (heure CuanLanamo) de

l'aeroporL de CuanLanamo eL arrlve le mme [ou a vlngL heure hul mlnuLe
(20:08) (heure Algerle) a l'aeroporL

lnLernaLlonal d'Alger "Pouarl 8oumedlenne". C'eLalL un vol dlrecL d'envlron
douze heures, dans un avlon mlllLalre

Cargo, le numero du vol esL le "rch 481 C17 101691". !'al eLe Lransfere en
compagnle d'un auLre prlsonnler du nom

de 8elkassem 8ensayah, duranL LouL le vol ['avals les pleds menoLLes au
planche de l'avlon, les malns menoLLees

aux deux cLes du corps, les yeux bandes eL un casque de sLop-brulL sur les
orellles. A mon arrlve a laeroporL

d'Alger, ['al eLe remls aux pollclers Algerles,(la deuxleme brlgade de la
secLlon des fronLleres aerlennes) qul

sonL monLes dans l'avlon, lls m'onL menoLLe les malns dans le dos, releve le
bas de mon 1-ShlrL ( [e ne porLals
Case l:05-cv-00392-UNA Document 35l-l Filed 03/07/l4 Page 2 of 8

qu'un 1-ShlrL, dans l'avlon ou ll falsalL frold eL a mon arrlve en Algerle ou ll
falsalL frold aussl) pour me

couvrlr le vlsage. Cn m'a falL sorLlr bruLalemenL de l'avlon, falL monLe dans
une volLure de pollce eL condulL au

posLe de pollce de l'aeroporL ou ['al sublL un courL lnLerrogaLolre, on a prls
mes emprelnLes dlglLales,

phoLographle ensulLe condulL par la pollce 88l (8rlgade de 8enselgnemenL
eL d'lnvesLlgaLlon) vers la uCSn

(ulrecLlon Cenerale de la SureLe naLlonale) ou [e suls resLe [usqu'au dlx
decembre (10-12-2013).
!'al subl plusleurs lnLerrogaLolres par le 88l eL d'auLre servlces de
renselgnemenL. !e resLals dans une grande

cellule que [e parLagals avec les crlmlnelles, LraflquanLs de drogue...(le drolL
commun) ou les condlLlons de vle

eLalenL mauvalses surLouL sur le plan hyglenlque, cela a beaucoup affecLe
ma sanLe, [e suls Lombe malade

d'allleure [e suls encore malade a ce [our.
Le dlx decembre (10-12-2013) ['al eLe condulL au Lrlbunal d'Alger-cenLre
(Sldl Mohamed) ou ['al renconLre le

procureur de la republlque, ensulLe lnLerroge par le [uge d'lnsLrucLlon, ['al
eLe mls sous conLrle [udlclare eL

llbere sous condlLlon que [e dols me presenLer au Lrlbunal une fols par mols
pour slgner [usqua mon [ugemenL.
MalnLenanL [e n'al aucun papler d'ldenLlLe, [e n'al pas le drolL de Lravalller,
[e n'al aucun moyen de revenu, les

Amerlcalns m'onL conflsque mon argenL, [e dols emprelnLer de l'argenL pour
prendre le bus afln de me rendre au

Lrlbunal pour slnger, [e dols emprelnLer de l'argenL pour pouvolr manger eL
a parL les vLemenLs que [e porLe

depuls ma llberaLlon, [e n'al aucun vLemenL de rechange, [e n'al pas de
logemenL - mon frere a accepLe de me
loger LemporalremenL dans sa peLlLe demeure avec ses slx enfanL - [e n'al
pas de l'argenL pour louer un

apparLemenL, les personnes des dlfferenLs servlces du gouvernemenL avec
qul ['al parle m'onL dlL expllclLemenL

qu'll ne m'apporLeronL aucune asslsLance nl du cLe flnancler nl du cLe
logemenL, nl rlen absolumenL rlen, ['al

demande l'alde de la crolx rouge lnLernaLlonale a Alger mals ['al reu la
mme reponse.
MalnLenanL le gouvernemenL amerlcaln a non seulemenL refuse de me
compenser pour les douzes annees emprlsonne a

CuAn1AnAMC mals encore ll m'a conflsque l'argenL qul eLalL en ma
pocesslon eL que ['al gagne en LravalllanL dr

lorsque [e vlvals au canada.
Les pollclers algerlens chez qul ['al passe mes premlers [ours en Algerle
eLalenL lndlgnes d'apprendre une Lelle

chose. lls m'onL dlL que c'esL mesquln de la parL d'un pays qul se proclame
le leader des drolLs de l'homme, eL

[oue le "pollcler [usLlcer" dans le monde.

!e declare sous pelne de par[ure, que la declaraLlon qul precede esL
verldlque eL exacLe.

Slgne ce 13 [our de fevrler 2014


___________________________
u[amel AMLZlAnL
lSn - 310
Alger, Algerle
DECLARATION OF DJAMEL AMEZIANE
: NE, make the following declaration I, Djamel AMEZIA
Guantanamo US Navy Base for close imprisoned in citizen of Algeria who was I am a
to twelve years.
Guantanamo Bay on December 4, from , through Guantanamo Airport , I was transferred
at Algiers Houari Boumediene arrived I ) . Guantanamo time 3:00 am ( at about 13 20
on , flight a direct ) It was . the same day at 8:08 pm (Algerian time on International Airport
the flight number was "rch ; twelve hours which lasted about , board of a military cargo plane
Belkacem I was transferred along with another prisoner by the name of " 481 C17 101691.
chained to the floor of the plane and my hands were shackled to my y feet were ensayeh. M B
as cancelling headphones - blindfolded and was wearing noise . I was for the entire flight waist
Air Second Brigade of the . Upon arriving at Algiers Airport, I was handed over to the well
- , cuffed my hands behind my back, pulled my T Border Guards, who boarded the plane Force
the plane where the while on shirt - a T only wearing I was r my face to cove up shirt
as was very cold temperature ia, the temperature was very cold and upon arriving to Alger
in a police car and drove me me . They brutally got me out of the plane and put , for me well
he police station where I was subjected to a short interrogation. After they took my to t
Intelligence and Investigation Brigade) drove me to the ( the IIB d a mug shot, fingerprints an

th
ecember 10 until D where I remained GDNS (General Directorate of the National Security)
, which were conducted by the IIB I was subjected to several interrogations (12/10/2013.)
in a large cell along with criminals and I was held other intelligence agencies. along with
far as living conditions, especially as poor in aw criminals L Common drug traffickers
I have been sick ever since. impact on my health. a serious hygiene is concerned, which had
I was taken to Sidi Mohamed Courthouse in downtown Algiers , On December 10, 2013
and I was then interrogated by the Investigative where I met with the General Prosecutor
. And I was I was placed under judicial supervision and then released on probation . Judge
its decision. once a month while waiting for the court to render to the court to report required
have any identity documents, I have no right to work, I have no income I presently don't
the bus to to take in order and I have to borrow money seized my money have Americans
my brother has agreed any spare clothing, I have no home I don't have report to the court;
I ; temporary lodging in his small home where he lives with his six children a offer me to
money to rent an apartment and the officials from various government any don't have
or housing agencies have explicitly indicated to me that they will offer me neither financial n
assistance from ce whatsoever. I sought any kind of assistan me assistance, nor will they offer
the same response. again received and ICRC the
So, the US government has not only refused to compensate me for twelve years of
seized the money I had earned through my hard it has but in Guantanamo, imprisonment
work in Canada.
The Algerian police officers who detained me when I first arrived to Algeria were
to do such a country a so petty from d that it was outraged to learn such a thing. They sai
's the world the role of the leader of human rights and plays claims to be thing when it
." police "vigilante
I declare under penalty of perjury, that the statement above is true and correct.
. day of February 2014
th
Signed on this 13

Djamel AMEZIANE, ISN 310
Algiers, Algeria


REPLY EXHIBIT A
Case l:05-cv-00392-UNA Document 36l-l Filed 05/09/l4 Page l of 3
1
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Wells -

We cannot agree to your discovery requests set forth below. As explained in our opposition to your motion for
return of personal property, Petitioner's claim for return of personal property is not cognizable in habeas and the
Court lacks jurisdiction over this non-habeas claim. See 28 U.S.C. sec. 2241(e)(2). Therefore, your discovery
requests are irrelevant. Additionally, these discovery requests do not meet the requirements of section I.E.2 of
the Amended Case Management Order. In any event, the policy concerning return of detainee property, while
not the subject of a formal DoD issuance (see http://www.dtic.mil/whs/directives/corres/ins1.html
<http://www.dtic.mil/whs/directives/corres/ins1.html> ) or similar formal document, is explained in Mr. Liotta's
declaration.

Please let us know if you will be seeking an extension and how long of an extension you will be
seeking. Thank you.

Dan

!"#$% Wells Dixon [mailto:WDixon@ccrjustice.org|
&'()% Friday, April 25, 201+ +:31 PN
*#% Barish, Daniel (C!v); Warden, Andrew (C!v)
+,% Shane Kadidal
&-./',)% Ameziane -- Request for Discovery

Dan, Andrew --

! am writing further to Nr. Ameziane's motion to compel the return of his personal property. !n its opposition brief and
supporting declaration by Jay Alan Liotta, the government cites a DOD policy to retain money held by Guantanamo
detainees at the time of their capture regardless of the facts and circumstances of their individual cases, including
whether they have prevailed in habeas. ! request that you produce to us a copy of the policy and all related documents,
including without limitation the basis for the government's claim that the policy is "analogous" to the statutory
requirements of the 201+ NDAA (which, as you know, do not apply to detainees who have prevailed in habeas). ! also
request that you make Nr. Liotta available for a deposition so that we may question him about the DOD policy and
determine whether or to what extent that policy should be afforded any deference by the Court.

! would appreciate if you would please let me know as soon as possible whether the government will agree to these
requests, so that we can determine whether it may be necessary to seek further relief from the Court.

Thanks --

Wells

J. Wells Dixon
Senior Staff Attorney
Center for Constitutional Rights
2
666 Broadway, 7th Floor
New York, New York 10012
Tel: (212) 61+-6+23
Fax: (212) 61+-6+99
wdixon@ccrjustice.org

EXHIBIT B
Case l:05-cv-00392-UNA Document 35l-2 Filed 03/07/l4 Page l of 2
From: Warden, Andrew (CIV)
To: Wells Dixon;
cc: Barish, Daniel (CIV);
Subject: Ameziane (ISN 310) - Money Request
Date: Friday, January 31, 2014 2:58:46 PM
Wells:

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

Best regards,
Andrew

Andrew I. Warden
U.S. Department of Justice
Civil Division, Federal Programs Branch
Tel: (202) 616-5084

Case l:05-cv-00392-UNA Document 35l-2 Filed 03/07/l4 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

x

DJAMEL AMEZIANE,

Petitioner,

v.

BARACK OBAMA, et al.,

Respondents.

:
:
:
:
:
:
:
:
:
:
:
x

Civil Action No. 05-392 (ESH)

MOTION FOR GRANT OF HABEAS RELIEF IN THE
FORM OF AN ORDER REQUIRING THE GOVERNMENT
TO RETURN PETITIONERS PERSONAL PROPERTY

Petitioner Djamel Ameziane, by and through his undersigned counsel, respectfully
moves for an order granting habeas relief in the form of an order requiring the government to
return his personal property. He asks the Court to order the government to return approximately
700 (GBP) that he had earned legally while living in Canada and were seized at the time of his
capture. The funds were not returned to him when he was forcibly transferred to Algeria in
December 2013, and have been withheld by Joint Task Force Guantnamo in violation of U.S.
and international law since his transfer. Mr. Ameziane also requests interest on the funds from
the date they were seized. Alternatively, he requests that the Court schedule a full hearing on the
merits of his habeas petition. Post-transfer habeas relief is necessary and appropriate because
Mr. Ameziane continues to suffer collateral consequences of his prior detention at Guantnamo
that are concrete and specific, and plainly redressible by the Court. The government objects.

Case l:05-cv-00392-UNA Document 35l Filed 03/07/l4 Page l of l3
2
Background
The history of this case is well-known and undisputed. Mr. Ameziane was rendered to
Guantnamo Bay more than twelve years ago. He filed this habeas case more than nine years
ago. More than five and a half years ago the Supreme Court held in Boumediene v. Bush, 553
U.S. 723, 783, 795 (2008), that the costs of delay can no longer be borne by those who are held
in custody; [t]he detainees in these cases are entitled to a prompt habeas corpus hearing; and
the writ must be effective. The government also determined there was no military need for
Mr. Amezianes continued detention and approved him for transfer more than five years ago. In
2009, the Court stayed this case indefinitely at the governments request based on its inaccurate
representations that Mr. Ameziane would be released expeditiously. Yet the government made
no serious effort to release him during the subsequent four and a half years, and consequently he
filed a motion requesting a court order of release in August 2013. The government succeeded in
delaying the Courts consideration of the motion for several months, however, until the
government forcibly repatriated Mr. Ameziane to Algeria on December 5, 2013, despite his fear
of persecution.
1
The Court then entered a sealed order dated December 9, 2013 (dkt no. 346).
The case remains pending without a final ruling on the merits of Mr. Amezianes habeas petition.
As set forth in his attached declaration, Mr. Ameziane has suffered discrete and palpable
harm as a consequence of his forcible transfer to Algeria. Among other things, he was subjected
to physical and psychological abuse not only during the transfer but also immediately upon his
arrival in Algeria. He was then placed in secret detention by the Algerian security services.

1
See Editorial, A Bad Decision at Guantnamo, N.Y. Times, Dec. 6, 2013 (stating Mr.
Amezianes forcible transfer is perverse and reinforces the perception that America flouts the
rule of law), available at http://www.nytimes.com/2013/12/07/opinion/a-bad-decision-at-
guantanamo.html?_r=0.
Case l:05-cv-00392-UNA Document 35l Filed 03/07/l4 Page 2 of l3
3
During the period of his secret detention, he was interrogated repeatedly. And when he was not
being interrogated, he was kept in deplorable prison conditions. He became seriously ill as a
result, and, at least initially, after his release from secret detention was bed-ridden and virtually
unable to communicate with family members or his undersigned counsel by telephone.
2

In addition to the injustice that he has suffered, the U.S. government left Mr. Ameziane
utterly destitute. It dumped him in Algeria without any resources, and apparently without
arranging for resources prior to his transfer. He currently has no access to medical care, no
proper identification, no money, and no immediate prospect of gainful employment or other
means of self-support. He has had to rely on the charity of his family for virtually every human
need, including food and shelter, but they are not able to care for him on a long-term basis (due
in part to the physical and psychological harm caused by his many years of detention). Mr.
Ameziane arrived in Algeria wearing the detainee uniform he wore at Guantnamo, and but for
clothes that he borrows he would likely still be wearing it. And he must borrow bus fare to
report to the Algerian authorities monthly or he will surely be arrested.
3

The U.S. government is aware of Mr. Amezianes plight, but has made no apparent effort
to intervene on his behalf or help him in any way. Algeria also notably restricts access by human
rights organizations such as Amnesty International and Human Rights Watch, effectively
preventing them from providing direct humanitarian assistance to Mr. Ameziane and other

2
See Decl. of Djamel Ameziane, Feb. 13, 2014 (attached hereto as Exhibit A). Mr. Ameziane
has prepared this declaration by email because he has no other means to provide a written
statement to the Court. Counsel has redacted Mr. Amezianes email address to protect his
privacy, but will provide an unredacted copy of the email to the Court upon request.
3
Additional information regarding Mr. Ameziane is set forth in a sealed supplement filed
contemporaneously with this motion, which Mr. Ameziane incorporates herein by reference.
4
former Guantnamo detainees (at least one of whom is reportedly homeless).
4
Even the
International Committee of the Red Cross has been unable to substantially improve Mr.
Amezianes present circumstances.
5
This fate, of course, would not have befallen him if he had
been safely resettled in a third country.
Nonetheless, in an effort to mitigate his suffering and move on with his life, Mr.
Ameziane has requested that the U.S. government return money that was seized from him at the
time of his capture. It is money that he earned while living and working legally in Canada,
which he used to support himself in the months after he was denied permanent refuge and forced
to leave that country. He desperately needs this money in order to support his most basic needs
because the U.S. government has callously discarded him after more than a decade of abuse and
indefinite detention without any apparent concern for his well-being, the Algerian government
appears unwilling or unable to assist him, and he has no other immediate means of support.
Although there is no serious dispute that the money is his personal property, or that U.S.
and international law require personal property to be returned upon repatriation, the government
has refused to return it to him due to the concern that those funds may ultimately be used in a
manner that adversely affects the security of the United States.
6
The governments position
with respect to the approximately 700 at issue is baseless and contrary to law, and should be
rejected. The Court should provide a habeas remedy in the form of an order requiring the
government to return Mr. Amezianes money, or schedule a full hearing on the merits of his

4
See FIDH Press Release, Algeria: Allow Rights Groups to Visit, 11 Feb. 2014,
http://www.fidh.org/en/north-africa-middle-east/Algeria/14629-algeria-allow-rights-groups-to-
visit.
5
See Ex. A, 4.
6
Email from the Dept of Justice, Jan. 31, 2014 (attached hereto as Exhibit B).
5
habeas petition in order to mitigate the collateral consequences of his prior detention. The Court
should also award interest on the funds withheld, and any other relief it deems necessary and
appropriate to address Mr. Amezianes injury.
Argument
Mr. Amezianes request for a court order compelling the government to return his
personal property is apparently a matter of first impression involving Guantnamo detainees.
However, he is plainly entitled to the return of all his personal property, including money, under
U.S. and international law. Indeed, the governments refusal to return his money violates the
Geneva Conventions and U.S. law implementing those treaties, as well as other law-of-war
authorities that the government concedes inform and constrain its detention authority under the
Authorization for Use of Military Force (AUMF), Pub. L. 107-40, 2(a), 115 Stat. 224, 224
(2001). The Court also plainly has authority to order the government to return his personal
property pursuant to its equitable habeas authority. To be clear, Mr. Ameziane does not seek
reparations or damages pursuant to this motion. He seeks a habeas remedy that only this Court
can provide, which will enforce an established legal right and alleviate a specific and concrete
injury that he continues to suffer as a result of his prior detention at Guantnamo. An order
granting relief will help restore him to the position that he would have been in had he not been
unlawfully detained at Guantnamo for more than a decade.
The governments contention that it cannot return Mr. Amezianes personal property
because it may be used in a way that could be harmful to the security of the United States is not
only speculative but demonstrably false. First, he needs the money to survive. Second, the
governments position is not based on anything that Mr. Ameziane has done, but rather on a
general policy applicable to all former detainees from which it is unwilling to deviate in this
6
particular case. See Ex. B. Indeed, Mr. Ameziane has done nothing since his transfer to warrant
the governments purported concerns; rather, until recently he was virtually confined to his
brothers home and to bed because of his illness caused both by the poor conditions of his secret
detention in Algeria and the terrible years he spent in detention at Guantnamo. The
governments position instead is based solely on Mr. Amezianes prior detention at Guantnamo,
without charge, and its persistent view that he, like all Muslim men and boys sent to
Guantnamo, was lawfully detained as part of the Taliban, Al Qaeda or associated forces a
claim that he rejects. If as an alternative to an order compelling the government to return his
money the Court were to conduct a habeas hearing and conclude that Mr. Amezianes prior
detention was unlawful, it would not only alleviate this stigma of his prior detention but also
vitiate the governments concerns and he would get his money back.
I. Mr. Ameziane Is Entitled to the Return of His
Personal Property Under U.S. and International Law

The government has claimed authority to detain men such as Mr. Ameziane at
Guantnamo Bay pursuant to the Authorization for Use of Military Force (AUMF), Pub. L.
107-40, 2(a), 115 Stat. 224, 224 (2001), which permits the use of necessary and appropriate
force [against a narrow set of groups or individuals] in order to prevent any future acts of
international terrorism against the United States. As the Supreme Court held in Hamdi v.
Rumsfeld, 542 U.S. 507, 518, 521 (2004), the power to detain may be inferred from the right to
use force under longstanding law-of-war principles. The Court further explained that [t]he
purpose of detention is to prevent captured individuals from returning to the field of battle and
taking up arms once again. Id. at 518; id. at 519 (although the AUMF does not use specific
language of detention, detention to prevent a combatants return to the battlefield is a
fundamental incident of waging war and thus permitted). The Court concluded that detention is
7
authorized in the narrow circumstances where necessary to prevent return to the battlefield, but
may last no longer than active hostilities. Id. at 519, 520. It also concluded that indefinite or
perpetual detention is not authorized. Id. at 521.
7

The government has long acknowledged that its AUMF detention authority is informed
and limited by these international law-of-war principles. See Respts Mem. Regarding the Gvts
Detention Authority Relative to Detainees Held at Guantanamo Bay at 1, In Re Guantanamo Bay
Detainee Litigation, No. 08-mc-442 (TFH) (D.D.C. Mar. 13, 2009) (dkt. no. 1689) (Principles
derived from law-of-war rules governing international armed conflicts, therefore, must inform
the interpretation of the detention authority Congress has authorized for the current armed
conflict.) (citing Geneva Conventions). The D.C. Circuit has also held that domestic law may
limit the governments detention authority. See Al-Warafi v. Obama, 716 F.3d 627, 629 (D.C.
Cir. 2013). In addition, domestic and international law both specifically require as part of the
governments detention authority that a detainees property, including money and other
valuables, must be returned to him upon repatriation.
U.S. Department of the Army Regulation 190-8, Enemy Prisoners of War, Retained
Personnel, Civilian Internees and Other Detainees (1 Oct. 1997), is domestic law that constrains
the governments AUMF detention authority. See Al-Warafi, 716 F.3d at 629. It applies to all
U.S. armed forces, and implements international law, both customary and codified, relating to
[prisoners of war and civilians] which includes those persons held during military operations

7
As Justice Souter explained in his opinion concurring in the Hamdi judgment, when a court is
asked to infer detention authority from a wartime resolution such as the AUMF, it must assume
that Congress intended to place no greater restraint on liberty than was unmistakably indicated
by the language it used, which, given the qualified necessary and appropriate force language of
the AUMF, necessarily suggests that AUMF detention authority is equally limited. 542 U.S. at
544 (quoting Ex Parte Endo, 323 U.S. 283, 300 (1944)).
8
other than war. Army Reg. 190-8, 1-1(b). The principal treaties relevant to this regulation
are the [Geneva Conventions]. Id. Regulation 190-8 also governs procedures for the transfer
and repatriation of detainees. Id. 3-14 (prisoners of war); 6-16 (civilians). In particular, it
requires that personal property must be returned to the released or repatriated detainee, including
money and other valuables. Id. 3-14(d) (prisoners of war); 6-16(b) (civilians).
8

Army Regulation 190-8 is consistent with the longstanding rule under the law of armed
conflict that a prisoners property is protected from permanent confiscation. For example, the
annexed regulations to the 1907 Hague Convention provide that all of a prisoners personal
belongings, except arms, horses and military papers, remain their property. Annex to the
Hague Convention Respecting the Laws and Customs of War on Land art. 4, Oct. 18, 1907, 36
Stat. 2277, 1 Bevans 631. The rule applies specifically in the context of international armed
conflicts, fought between nation-states and governed by the Third and Fourth Geneva
Conventions. See Geneva Convention (III) Relative to the Treatment of Prisoners of War art. 18,
Aug. 12, 1949, 6 U.S.T. 3316 (Sums of money carried by prisoners of war may not be taken
away from them except by order of an officer, and after the amount and particulars of the owner
have been recorded in a special register and an itemized receipt has been given. . . . and shall be
returned . . . at the end of their captivity.); Geneva Convention (IV) Relative to the Protection of
Civilian Persons in Time of War art. 97, Aug. 12, 1949, 6 U.S.T. 3516 (Monies, cheques,
bonds, etc., and valuables in [civilians] possession may not be taken from them except in

8
In the case of individuals such as Mr. Ameziane, who the government has claimed are not
entitled to prisoner-of-war status, the regulation specifically states that [a]ll personal effects,
including money and other valuables, of the individual must be safeguarded, inventoried and
recorded, and [u]pon release, the [individual] will be given all articles, moneys or other
valuables impounded during internment. Id. 6-3(a), (c)-(e); 6-16(b). Here, the government
has returned what little personal property Mr. Ameziane had at Guantnamo, except for his
money, which the government still holds. See Ex. B.
9
accordance with established procedure. Detailed receipts shall be given therefor. . . . On release
or repatriation, [civilians] shall be given all articles, monies or other valuables taken from them
during internment . . . with the exception of any articles or amounts withheld by the Detaining
power by virtue of its legislation in force. If the property of [a civilian] is so withheld, the owner
shall receive a detailed receipt.).
State practice also establishes the rule against appropriating a detainees property as a
norm of customary international law applicable to non-international armed conflicts, which are
waged with armed groups rather than between nation-states, and which are governed by
Common Article 3 of the Geneva Conventions.
9
See Jean-Marie Henckaerts & Louise Doswald-
Beck, 1 Customary International Humanitarian Law Rule 122 (Intl Comm. of the Red Cross,
Cambridge Univ. Press reprtg. 2009); see also Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of Non-International Armed
Conflicts, June 8, 1977, art. 4(2)(g), 16. I.L.M. 1442.
10

International human rights law likewise further supports the rule that a prisoners
property, including money and other valuables, must be returned to him upon release or
repatriation. See, e.g., Standard Minimum Rules for the Treatment of Prisoners art. 43(2),
adopted by the First U.N. Congress on the Prevention of Crime and the Treatment of Offenders
(1955), approved by the U.N. Econ. & Soc. Council, E.S.C. Res. 663(C) (XXIV) (31 July 1957)
and E.S.C. Res. 2076 (LXII) (13 May 1977) (On the release of the prisoner all [valuables,
clothing and other effects belonging to a prisoner] and money shall be returned to him except in

9
The government concedes that for the purpose of its detention authority at Guantnamo, the
ongoing conflict is governed by Common Article 3. See Exec. Order 13,492, 6, 74 Fed. Reg.
4897, 4899 (Jan. 22, 2009); see also Hamdan v. Rumsfeld, 548 U.S. 557, 628-32 (2006).
10
Examples of state practice relating to Customary International Humanitarian Law Rule 122 are
available at http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule122.
10
so far as he has been authorized to spend money or send any such property out of the institution,
or it has been found necessary on hygienic grounds to destroy any article of clothing. The
prisoner shall sign a receipt for the articles and money returned to him.).
Finally, similar to rules applicable under international law, an individual who is
aggrieved by an unlawful seizure or deprivation of property pursuant to domestic law is entitled
to move for its return when there are no criminal proceedings pending against him. See Fed. R.
Crim. P. 41(g); United States v. Martinson, 809 F.2d 1364, 1366-67 (9th Cir. 1987). In ruling on
such a motion, as in exercising its habeas jurisdiction, a court must take into account all equitable
considerations. See 809 F.2d at 1367; In re Singh, 892 F. Supp. 1, 3 (D.D.C. 1995). Moreover,
where a claimant substantially prevails in the proceeding, he may recover interest. See 28 U.S.C.
2465(b)(1)(C); United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 504 (6th Cir.
1998) (To the extent that the Government has actually or constructively earned interest on
seized funds, it must disgorge those earnings along with the property itself when the time arrives
for a return of the seized res to its owner.).
Accordingly, it is beyond serious dispute that Mr. Ameziane is entitled to the return of his
money with interest, and any other relief that the Court deems necessary and appropriate.
II. The Court Has Equitable Habeas Authority to Remedy the
Injury to Mr. Ameziane Caused by the Deprivation of His Property

There is no serious dispute that this Court has equitable habeas authority to fashion a
practical remedy to mitigate the specific harm to Mr. Ameziane caused by his prior detention.
That remedy can take one of two forms here: an order compelling the government to return his
money, or a favorable ruling on the merits of his habeas petition which would have the same
practical effect of compelling the government to return his money, with interest.
Case l:05-cv-00392-UNA Document 35l Filed 03/07/l4 Page l0 of l3
11
As explained in Mr. Amezianes motion for release, the Court has equitable habeas
authority to dispose of this case as justice and law require based on its unique facts and
circumstances. See 28 U.S.C. 2243 (The court shall summarily hear and determine the facts,
and dispose of the matter as law and justice require.). Since the 17th Century, courts in England
and America with authority to dispose of habeas corpus petitions have been governed by
equitable principles. See Sanders v. United States, 373 U.S. 1, 17 (1963); Boumediene v. Bush,
553 U.S. 723, 780 (2008) (citing Schlup v. Delo, 513 U.S. 298, 319 (1995)). Indeed, common-
law habeas corpus was, above all, an adaptable remedy. Its precise application and scope
changed depending upon the circumstances. Boumediene, 553 U.S. at 779; Jones v.
Cunningham, 371 U.S. 236, 243 (1963) (habeas is not a static, narrow, formalistic remedy; its
scope has grown to achieve its grand purpose). In exercising habeas jurisdiction, courts have
equitable discretion to impose flexible, pragmatic remedies that are not limited to an order of
release from custody. See Aamer v. Obama, No. 13-5223, 2014 U.S. App. LEXIS 2513, at *14
(D.C. Cir. Feb. 11, 2014) ([A]lthough petitioners claims undoubtedly fall outside the historical
core of the writ, that hardly means they are not a proper subject of statutory habeas.); see also
Brief of Eleven Legal Historians as Amici Curiae Supporting Petitioner, Holland v. Florida, 130
S. Ct. 2549 (No. 09-5327) (citing cases); Boumediene, 553 U.S. at 780 (common-law habeas
courts often did not follow black-letter rules in order to afford greater protection in cases of non-
criminal detention). The very nature of the writ demands that it be administered with the
initiative and flexibility essential to insure that miscarriages of justice within its reach are
surfaced and corrected. Harris v. Nelson, 394 U.S. 286, 291 (1969). This Court may therefore
exercise its equitable habeas powers to fashion a practical remedy that compels the government
to return Mr. Ameizanes money with interest. See also id. at 300 ([I]n exercising this [habeas]
Case l:05-cv-00392-UNA Document 35l Filed 03/07/l4 Page ll of l3
12
power, the court may utilize familiar procedures, as appropriate, whether these are found in the
civil or criminal rules or elsewhere in the usages and principles of law.).
The Court also retains its jurisdiction over this habeas case notwithstanding Mr.
Amezianes release from Guantnamo. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 238 (1968)
(holding that once the federal jurisdiction has attached in the District Court, it is not defeated by
the release of the petitioner prior to completion of proceedings on such application); id. at 239
([The habeas] statute does not limit the relief that may be granted to discharge of the applicant
from physical custody. Its mandate is broad with respect to the relief that may be granted. It
provides that the court shall . . . dispose of the matter as law and justice require . . . . [and]
contemplate[s] the possibility of relief other than immediate release from physical custody.);
Sibron v. New York, 392 U.S. 40, 55 (1968) (holding that the mere possibility that collateral
consequences may exist is sufficient to preserve a live controversy). Indeed, the D.C. Circuit has
assumed that detainees transferred from Guantnamo may continue to pursue their habeas cases
based on a detailed factual showing that they continue to suffer collateral consequences of their
prior detention that are not speculative and may be redressed by the court. See Gul v. Obama,
652 F.3d 12, 16, 18 (D.C. Cir. 2011).
Here, Mr. Ameziane easily satisfies the requirement of showing that his habeas case is
not moot. As explained above, as a direct consequence of his prior detention at Guantnamo and
the governments persistent claim that he, like all detainees, was properly detained without
charge as part of the Taliban, Al Qaeda or associated forces, the government has refused to
return money that belongs to him. As a consequence, he is presently unable to support himself
and instead must rely on the uncertain, temporary charity of others even the clothes that he
wears are borrowed. He therefore has a substantial interest either in obtaining a court order
13
directing the government to return his property as required by U.S. and international law, which
is minimally necessary to mitigate the injury caused by his prior detention, or proceeding with a
full habeas hearing to obtain a ruling that his detention was unlawful, which would vitiate the
governments alleged basis for withholding his funds. See 391 U.S. at 237-38. In either case, as
with the many years he spent in detention despite his approval for transfer and the governments
representations that he would be released expeditiously, it is clear that the only relief he will
obtain from his present injury is that which this Court compels of the government.
Conclusion
For all of the foregoing reasons, Mr. Amezianes motion should be granted and the Court
should order the government to return his money, with interest, or schedule a full habeas hearing
that will ultimately achieve the same result. The Court should also order any other relief that it
deems necessary and appropriate pursuant to its equitable habeas authority.
Date: New York, New York
March 7, 2014

Respectfully submitted,

/s/ J. Wells Dixon
J. Wells Dixon (Pursuant to LCvR 83.2(g))
Shayana D. Kadidal
Susan Hu (Pursuant to LCvR 83.2(g))
CENTER FOR CONSTITUTIONAL RIGHTS
Tel: (212) 614-6423
Fax: (212) 614-6499
skadidal@ccrjustice.org
shu@ccrjustice.org
Counsel for Djamel Ameziane

1


DJAMEL AMEZIANE (ISN 310),

Petitioner,

v.

BARACK H. OBAMA, et al.,

Respondents.

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

RESPONDENTS OPPOSITION TO PETITIONERS MOTION FOR GRANT OF
HABEAS RELIEF IN THE FORM OF AN ORDER REQUIRING THE
GOVERNMENT TO RETURN PETITIONERS PERSONAL PROPERTY, AND
CROSS-MOTION TO DISMISS.

INTRODUCTION
On March 7, 2014, Petitioner filed a Motion for Grant of Habeas Relief in the
Form of an Order Requiring the Government to Return Petitioners Personal Property
(Petitioners Motion). See ECF No. 351. Petitioner also filed under seal a Supplement
in Support of Petitioners Motion. See ECF Nos. 352, 355. Respondents hereby file their
Opposition to Petitioners Motion, see Minute Order of March 21, 2014, and a Cross-
Motion to Dismiss.
On December 5, 2013, Respondents filed a Notice of Transfer of Petitioner
Djamel Ameziane stating that the United States has relinquished custody of Petitioner
and transferred him to the control of the Government of Algeria. ECF No. 345. On
March 7, 2014, Petitioner filed a motion seeking an order granting what Petitioner
describes as habeas relief in the form of an order requiring the Government to return
approximately 700 British pounds that were not returned to Petitioner when he was
Case l:05-cv-00392-UNA Document 357 Filed 04/ll/l4 Page l of 20

2

transferred out of United States custody, as well as payment of interest on these funds
from the date they were seized.
1
Alternatively, Petitioner requests a full hearing on the
merits of his habeas petition, claiming that an outcome from the hearing favorable to
Petitioner, in turn, will lead to the return of the money. Conceding that the order he seeks
is a matter of first impression for the Court, Petitioner contends that he is entitled to the
return of his personal property under Army Regulation 190-8 and international law it
implements, and that the Court has equitable habeas authority to order the Government to
return his property. Respondents oppose Petitioners Motion and cross-move to dismiss
this case as moot.
Petitioners Motion must be denied because his claim for the return of his
personal property is not cognizable as a habeas corpus claim. Petitioner cites to no
habeas case where a court has ordered the return of a prisoners or detainees personal
property, and courts in every circuit have held that claims for the return of property are
not habeas claims. Because Petitioners personal property claim is not a proper habeas
claim, it is barred by 28 U.S.C. 2241(e)(2), which withdraws court jurisdiction over any
non-habeas claim that relates to any aspect of a detainees current or former detention or
transfer. Therefore, the Court does not have jurisdiction over Petitioners claim.
In addition to this jurisdictional bar, Petitioners appeal to Army Regulation 190-8
as a substantive basis for his claim to return of property is flawed. The regulation cannot
be properly invoked in this particular habeas setting and, in any event, does not require
the judicial relief Petitioner seeks.

1
Petitioners recitation of the procedural history of this case prior to Petitioners transfer,
Petitioners Motion at 2, is inaccurate. See Respondents Response to Petitioners
Motion for Order of Release at 3-13 (ECF Nos. 318, 319) (filed under seal).
Case l:05-cv-00392-UNA Document 357 Filed 04/ll/l4 Page 2 of 20

3

Furthermore, Petitioners habeas case is altogether moot and should be dismissed because
the United States has relinquished custody of Petitioner and he has not suffered any
collateral consequence of his detention that can be redressed by this Court. Even if the
Court were to determine or had previously determined that Petitioner was entitled to a
writ of habeas corpus, Department of Defense policy, developed to prevent the potential
use of detainee funds to support terrorist organizations or activities, would still require
that the currency seized from Petitioner at the time of his capture not be returned to him
upon his transfer from United States custody. And, as discussed above, Petitioners case
otherwise cannot serve as a proper vehicle for a claim for return of property.
Accordingly, Petitioner has suffered no collateral consequence from his detention that
would be affected by a successful outcome for him in his habeas case or that properly
could be redressed by this Court. Therefore, Petitioners case is moot; his Motion should
be denied; and this case should be dismissed.
BACKGROUND
On December 5, 2013, Petitioner was transferred out of United States custody to
the custody and control of the Government of Algeria. Exhibit 1 (Declaration of Jay
Alan Liotta, Principal Director for the Office of Rule of Law and Detainee Affairs in the
Office of the Under Secretary of Defense for Policy) at 3-4. Joint Task Force
Guantanamo (JTF-GTMO) prepares a travel package for all departing detainees that
includes a Koran in the detainees language, a blanket, two sets of clothing (pants and
smocks), two pairs of underwear, prayer caps, socks, shower shoes, slip-on shoes, a
towel, washcloth, toothbrush, tooth paste, shaving cream, deodorant, shampoo, razor, and
a comb. Liotta Decl. at 7. Petitioner received this travel package when he left

4

Guantanamo Bay. Id. at 8. With the exception of the monetary funds that were seized
from Mr. Ameziane at the time of capture, all remaining items that he had at the time of
capture or later acquired at Guantanamo were transported with him when he left the
detention facility at Guantanamo and returned to Algeria. Id. at 8. Mr. Ameziane is not
being detained in Algeria. See Petitioners Motion at 3; Exhibit A to Petitioners Motion
at 6.
Department of Defense policy is to return to departing detainees all of the
property with which they arrived at Guantanamo and all property they accumulated
during their time at the facility, except for three general categories of material:
contraband, potential law enforcement evidence, and money that was in the possession of
a detainee at the time of his capture. Liotta Decl. at 9-11. The policy to retain money
associated with detainees is based on a strong national security interest in preventing
these funds from being used in a manner that would adversely impact the safety and
security of the United States. Id. at 11. Pursuant to this policy, JTF-GTMO continues
to hold 740 British pounds, 429,000 Afghanis, and 2,300 Pakistani rupees that were
seized from Mr. Ameziane at the time of his capture. Id. at 11.
The policy to retain contraband, law enforcement evidence, and currency is
uniformly applied to all detainees in Department of Defense custody at Guantanamo.
Liotta Decl. at 9, 12. No distinctions are made based on a detainees status or whether
they have sought or obtained habeas corpus relief. Id. Further, no distinction has been
made based on the amount of money held by JTF-GTMO in relation to a specific
detainee. Id. at 12. No detainees who have been transferred or released by the

5

Department of Defense from Guantanamo have ever been provided with inventoried
funds attributable to them upon their departure. Id.
ARGUMENT
I. The Court Does Not Have Jurisdiction Over Petitioners Claim for
Return of Property.

Petitioner concedes at the outset of his argument that his claim presents a matter
of first impression involving Guantanamo detainees. Petitioners Motion at 5. Indeed,
Petitioner cites no case in which a habeas court has ordered the return of a former
prisoners or detainees personal property. In fact, such claims are not proper habeas
claims, and the Court lacks jurisdiction over Petitioners claim.
A. Petitioners Claim for Return of his Personal Property is Not a Claim
that is Cognizable in Habeas Corpus.

As noted above, Petitioner cites to no case in which a habeas court has ordered the
return of a former prisoners or detainees personal property. In fact, courts have
consistently held that property-related claims are not within the scope of the writ of
habeas corpus, which has historically and consistently been utilized as a means to obtain
release of a natural person from confinement. See, e.g., Rumsfeld v. Padilla, 542 U.S.
426, 435 (2004) (stating that habeas corpus has been a proceeding against some person
who has the immediate custody of the party detained, with the power to produce the body
of such party before the court or judge, that he may be liberated if no sufficient reason is
shown to the contrary.) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)).
In an unpublished per curiam opinion in the domestic prison context, the Court of
Appeals concluded that an inmate seeking return of his property through a writ of habeas
corpus had brought a claim for non-habeas relief. In re Hill, No. 04-5436, 2005 WL

6

613262, at *1 (D.C. Cir. Mar. 15, 2005). Consequently, the Court of Appeals denied the
habeas petition because the court has no authority to order the return of petitioners
property. Id. Similarly, also in the prison context, another Judge of this Court has stated
that while a habeas petition is a vehicle capable of challenging the basis of a
governmental restriction on a persons liberty, [a] habeas petition is not capable of
addressing private property rights . . . . Prentice v. State of Michigan Court of Appeals,
No. 09-CV-230 (HHK), 2009 WL 1956274 at *1 (D.D.C. July 9, 2009) (Kennedy, J.).
These decisions are consistent with a long line of cases from other jurisdictions
holding that claims for return of lost, damaged, or confiscated property are not cognizable
in a writ of habeas corpus. Indeed, courts in every circuit have held that property claims
cannot be raised in habeas. See, e.g., Whiting v. United States, No. 97-2033, 1998 WL
1281294 at *2 (1st Cir. June 26, 1998) (concluding that the district court understandably
dismissed the motion [seeking return of property] without prejudice on the ground that it
was not cognizable in a habeas proceeding) (unpublished); Anaya v. Smith, No.
3:11CV779, 2014 WL 315277 at *27 n.7 (N.D. Ohio Jan. 28, 2014) (holding that claim
challenging the seizure of property is not cognizable on federal habeas review);
Weaver v. Sanders, No. CV 13-3269-FMO (JPR), 2013 WL 2147806 at *1-2 (C.D. Cal.
May 16, 2013) (dismissing habeas claim brought by inmate seeking to get his property
back or receive the fair value of it); Nance v. Heley, No. 11CV1173 (ARR), 2012 WL
2953740 at *2 (E.D.N.Y July 19, 2012) (concluding that Petitioners claim to recover
his personal property is not cognizable under habeas review); Buchanan v. Johnson, 723
F. Supp. 2d 722, 726-27 (D. Del. 2010) (Considering that the instant proceeding is one
for federal habeas relief, the court does not have the authority to order the return of

7

petitioners property.); Hall v. Norris, No. 09-CV-4078, 2010 WL 5071201 at *1 (W.D.
Ark. Dec. 9, 2010) (Because Petitioner's claim for relief seeks the return of forfeited
property, it is not cognizable in a federal habeas corpus proceeding. Reasonable jurists
would not find this conclusion debatable.); Veal v. Superintendent, No. 3:08-CV-3-TS,
2009 WL 4799935 at *2 (N.D. Ind. Dec. 8, 2009) (Finally, Veal alleges that there was
approximately $400 worth of personal property taken from his cell. This is in essence a
state tort claim that is not cognizable in this habeas proceeding.); Starr v. Ward, No. 04-
CV-0787-CVE-PJC, 2006 WL 2474914 at *1 (N.D. Okla. Aug. 25, 2006) (The Court
finds that claims relating to Petitioners dispute over personal property allegedly seized
from Petitioner by Department of Corrections personnel are not cognizable in this habeas
action.); Olajide v. United States Bureau of Immigration and Customs Enforcement, 402
F. Supp. 2d 688, 694-95 (E.D. Va. 2005) (dismissing immigration detainees habeas
claim alleging that officials have stolen some of his personal property including his
money and luggage); Bowen v. United States, No. 7:05-CV-37 (CDL), 2005 WL
1676668 at *2 (M.D. Ga. June 29, 2005) (dismissing habeas petition seeking return of
currency because a writ of habeas corpus is not the proper vehicle for the type of relief
petitioner seeks); Turner v. Johnson, 46 F. Supp. 2d 655, 675-76 (S.D. Tex. 1999)
(holding that a petition for a writ of habeas corpus is an improper method to raise a
claim that a typewriter and other personal property were confiscated, lost, or destroyed
by prison officials); Ronson v. Drohan, No. 89-CIV-7842 (RWS), 1990 WL 128925 *1
(S.D.N.Y. Aug. 28, 1990) (holding that inmates claims that he was wrongfully deprived
of property by the State is not considered here, as it is not cognizable by a habeas court);
Fayerweather v. Bell, 447 F. Supp. 913, 915 (M.D. Pa. 1978) (dismissing inmates

8

habeas claim brought under 28 U.S.C. 2241 for wilful and wrongful taking of his
personal property).
Nor is there any support that claims seeking the return of property could be raised
in habeas at common law. See David Clark and Gerard McCoy, The Most Fundamental
Legal Right: Habeas Corpus in the Commonwealth 48 n.95 (2000) (The remedy is still
limited to persons and cannot be used to reclaim property unlawfully seized by others.);
see also Ex Parte Watkins, 28 U.S 193 (1830) (stating that the purpose of the writ is to
liberate an individual from an unlawful imprisonment). At common law, the writ of
replevin, not the writ of habeas corpus, was the proper procedural vehicle to seek return
of property. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 78 (1972) (Replevin at common
law was an action for the return of specific goods wrongfully taken or distrained. ).
2

Accordingly, Petitioners claim for the return of his personal property is not
cognizable in habeas.
3

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


9

B. The Court Does Not Have Jurisdiction Over Petitioners Claim for the
Return of Money.

As explained above, Petitioners claim for the return of the money seized at the
time of his capture is not a claim that is cognizable in habeas. Because the claim is a
non-habeas claim regarding an aspect of his detention at or transfer from Guantanamo
Bay, the Court lacks jurisdiction over the claim under 28 U.S.C. 2241(e)(2).
Federal courts are courts of limited subject-matter jurisdiction. E.g., Al-Zahrani
v. Rodriguez, 669 F.3d 315, 317-318 (D.C. Cir. 2012). Accordingly, for a federal court
to exercise jurisdiction, the Constitution must have supplied to the courts the capacity to
take the subject matter and an Act of Congress must have supplied jurisdiction over it.
Id. Here, through Section 7 of the Military Commission Act of 2006 (MCA), 28
U.S.C. 2241(e)(2), Congress has exercised its constitutional prerogative, not to grant,
but to withdraw from the federal courts jurisdiction to adjudicate non-habeas claims by
Guantanamo detainees regarding aspects of their detention or transfer. Section 7
addresses habeas claims in its subsection (e)(1), while subsection (e)(2) provides:

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

28 U.S.C. 2241(e)(2) (emphasis added). The Court of Appeals has squarely held that
section 2241(e)(2) is a valid exercise of congressional power. Al-Zahrani, 669 F.3d at
318-20 (upholding the continuing applicability of the section 2241(e)(2) bar to our
jurisdiction over treatment cases).

10

Petitioners claim for the return of the money that was seized at the time of his
capture, was held by the Government during his detention, and was retained upon
Petitioners transfer, see Liotta Decl. at 8-12, is clearly a non-habeas claim relating to
an aspect of his detention or transfer, and, thus, is barred by 28 U.S.C. 2241(e)(2).
4

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

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

Petitioner cites to Army Regulation 190-8 (AR 190-8) and Al Warafi v. Obama,
716 F.3d 627 (D.C. Cir. 2013), for the proposition that the Governments detention
authority under the Authorization for Use of Military Force, as informed by the laws of
war, is limited by AR 190-8 in that, according to Petitioner, it requires the Government to
return money that was seized upon Petitioners capture. See Petitioners Motion at 7-8.
Petitioner cites to provisions of AR 190-8 that concern the return of personal property

4
The Court of Appeals recent decision in Aamer v. Obama, 742 F.3d 1013 (D.C. Cir.
2014), is not to the contrary. Aamer involved a challenge to the practice of enteral
feeding at Guantanamo, and the Court of Appeals panel, with one judge dissenting, held
that Guantanamo detainees could challenge their conditions of confinement in habeas.
Aamer focused solely on the current scope of statutory habeas and examined prior
Court of Appeals habeas cases to reach the conclusion that one in custody may
challenge the conditions of his confinement in a petition for habeas corpus. Id. at 1031-
32. Accordingly, as explained by the Aamer panel, because 28 U.S.C. 2241(e)(1) no
longer legitimately bars habeas claims by Guantanamo detainees under Boumediene v.
Bush, 553 U.S. 723 (2008), Guantanamo detainees can pursue conditions of confinement
claims in their habeas cases. Aamer, 742 F.3d at 1030-32. As explained supra with
respect to the instant case, however, there is no precedent in statutory habeas or common
law habeas for habeas jurisdiction over a claim for the return of personal property.
Aamer, therefore, is inapposite.
5
Petitioner appeals to the Courts equitable powers, suggesting that the Court can use
those powers to provide the remedy he seeks. The Courts equitable powers, however,
cannot overcome that Petitioners claim is not a proper habeas claim and that jurisdiction
over the claim otherwise has been withdrawn by 28 U.S.C. 2241(e)(2). Cf. Gul, 652
F.3d at 22 (Equity is not a substitute for meeting the requirements of Article III.).
Case l:05-cv-00392-UNA Document 357 Filed 04/ll/l4 Page l0 of 20

11

and effects to enemy prisoners of war (EPWs), retained personnel (RPs)
6
, and
civilian security internees (CIs). See AR 190-8 3-14(d), 6-16(b), and 6-3.
Assuming for purposes of argument, but without conceding, that Petitioner may appeal to
provisions of the regulation applicable to EPWs, RPs, and CIs, Petitioners reliance on
AR 190-8 and Al Warafi is misplaced, as explained below, and does not give rise to a
proper habeas claim.
1. Army Regulation 190-8 Cannot Be Invoked in this Habeas Case under Al
Warafi.

Army Regulation 190-8 performs a number of functions, including to help
implement certain international law obligations of the United States, such as those
reflected in the 1949 Geneva Conventions, with respect to the treatment of EPWs, RPs,
and CIs in the context of armed conflicts to which the Geneva Conventions apply, and
provides that, [i]n the event of conflicts or discrepancies between this regulation and the
Geneva Conventions, the provisions of the Geneva Conventions take precedence. AR
190-8 1-1(a), (b), and (b)(4). In Section 5 of the Military Commissions Act of 2006,
Congress prohibited the invocation of the Geneva Conventions as a source of rights in a
habeas proceeding. See Military Commissions Act of 2006, Pub. L. No. 109-366, sec. 5,
120 Stat. 2600, 2631 (codified at 28 U.S.C. 2241 note); see also Al Warafi v. Obama,
716 F.3d 627, 629 (D.C. Cir. 2013); Al Adahi v. Obama, 613 F.3d 1102, 1111 n.6 (D.C.
Cir. 2010). The Al-Warafi Court, however, concluded that AR 190-8 expressly
incorporates aspects of the Geneva Conventions relevant to the claims made in that case

6
RPs include certain types of military medical and religious personnel. See AR 190-8 at
33 (defining Retained Personnel).
Case l:05-cv-00392-UNA Document 357 Filed 04/ll/l4 Page ll of 20

12

in which the petitioner, a Guantanamo detainee, asserted he was a type of medical
personnel entitled to release. The Court stated as follows:
Army Regulation 190-8 is domestic U.S. law, and in a habeas proceeding
such as this, a detainee may invoke Army Regulation 190-8 to the extent
that the regulation explicitly establishes a detainees entitlement to release
from custody.

Al-Warafi, 716 F.3d at 629 (emphasis added). Here, of course, Petitioner Ameziane is
not invoking AR 190-8 for the purpose of obtaining his release. Petitioner relies upon
AR 190-8 for the proposition that he is entitled to the return of the money, not for his
release from custody, which has already occurred. Because Petitioner is not utilizing and
cannot utilize AR 190-8 to argue for his release, Petitioner may not invoke the regulation
under the plain language of Al Warafi, and Petitioner further may not appeal in this case
to the Geneva Conventions, as implemented by AR 190-8, as a source of rights to support
his claim for the return of the money.
7

7
Even if AR 190-8 were applicable to this case, the Regulation does not substantively
validate Petitioners claim in this matter because it does not inexorably require the return
of all detainee property without qualification. Multiple sections of AR 190-8
contemplate that not all personal property necessarily be returned by a detaining power to
a detainee when the detainee is transferred. See AR 190-8 3-14(d) (referring to [a]ll
confiscated property that can be released) (emphasis added); AR 190-8 3-14(f)
(referring to confiscated property that cannot be released); AR 190-8 3-14(g)(3)
(referring to the disposition of confiscated property); AR 190-8 6-16(b) (the theater
commander may direct that any impounded currency or articles be withheld).
Petitioner also mistakenly contends that customary international law supports his
position that Respondents are obligated to return the entirety of Petitioners property. See
Petitioners Motion at 9. The authority that Petitioner cites is inapposite, as it focuses on
the offense of pillage. See id. (citing Jean-Marie Henckaerts & Louise Doswald-Beck, 1
Customary International Humanitarian Law Rule 122 (Intl Comm. of the Red Cross,
Cambridge Univ. Press reprtg. 2009) (discussing pillage); Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
NonInternational Armed Conflicts (Protocol II), art. 4(2)(a)(g), June 8, 1977, 1125
U.N.T.S. 609 (listing pillage among other offenses without discussion). Respondents
have not pillaged Petitioners property, as pillage is defined as the taking of the personal
belongings of detainees with the intent of unlawful appropriation for private or

13

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

AR 190-8 also makes clear that if there is a dispute regarding a detainees
personal property that is not returned to him upon his transfer, it is not a claim that can be
brought by the former detainee against the detaining power or a claim cognizable in
court. Section 6-3(b)(2) states that [a]ny claim by a CI for compensation for personal
effects, money, or valuables stored or impounded by the United States and not returned
upon repatriation or any loss alleged to be the fault of the United States or its agents will
be referred to the country to which the CI owes allegiance. Thus, if there is a dispute
regarding impounded monies, it will be referred to the detainees home country for
resolution. A judicial remedy in U.S. courts is not contemplated.
Moreover, the Third Geneva Convention itself does not contemplate a judicial
remedy for Petitioners claim. The Article 18 Commentary to Geneva Convention III
(GC III) states as follows regarding the personal articles of prisoners of war after
captivity:
But if such articles and monies are not returned at the end of captivity, the
prisoner of war cannot make a claim against the former Detaining Power.
It is therefore suggested at the conference of Government Experts that
such compensation should be incumbent rather upon the Power of origin
of the prisoner concerned, and that it would then be for the Power of
origin to arrange for a general solution of the question with the Detaining
Power, within the context of the peace treaty.

Art. 18 Commentary to GC III.
8

personal use. See Henckaerts & Doswald-Beck, supra, at 185, 493. As discussed
above, Respondents seizure of Petitioners money is based on legitimate and reasonable
security goals. See Liotta Decl. at 11.

8
Article 18 of Geneva Convention III concerns the property of prisoners of war.

14

Similarly, Article 68
9
of Geneva Convention III states that [a]ny claim from a
prisoner of war for compensation in respect of personal effects, monies or valuables
impounded by the Detaining Power under Article 18 [of GC III] and not forthcoming on
his repatriation, or in respect of loss alleged to be due to the fault of the Detaining Power
or any of its servants, shall likewise be referred to the Power on which he depends. In
the same vein, the commentary on paragraph 2 of Article 68 of Geneva Convention III
states as follows in pertinent part: In fact, however, at the end of captivity a prisoner of
war will have no opportunity to make a claim against the Detaining Power. The
Convention therefore makes the Power on which he depends responsible for
compensating him. All claims must therefore be referred to the latter Power through the
intermediary of the Protecting Power.
10
At the end of the commentary, it states that
once the victim has received compensation from the Power on which he depends,
[11]

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

For all these reasons, Petitioners reliance on AR 190-8 is misplaced. Neither AR

9
Article 68 of Geneva Convention III concerns claims for compensation for prisoners of
war.

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

15

190-8 nor the international law it implements requires or authorizes this Court to order
the return of a detainees personal property or gives rise to a proper habeas claim.
II. This Case is Moot and Should Be Dismissed.
The United States has relinquished custody of Petitioner, and he is currently in
Algeria and no longer detained. Liotta Decl. at 3-4; Petitioners Motion at 3; Exhibit
A to Petitioners Motion at 6. Because Petitioner is no longer in U.S. custody, this case is
moot and should be dismissed in its entirety. Petitioner argues that his case is not moot
because he continues to suffer collateral consequences as a result of his prior detention.
See Petitioners Motion at 12. For the reasons described below, however, Petitioner has
not suffered any collateral consequences that can be redressed by this Court in this habeas
case, and the case should be dismissed.
In Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011), the Court of Appeals addressed
the issue of mootness with respect to habeas cases by former Guantanamo detainees who
had been transferred out of the custody and control of the United States. The Court
affirmed Judge Hogans dismissal of over 100 habeas petitions of former Guantanamo
Bay detainees, holding that the petitioners had suffered no redressable injury under
Article III. Id. at 14. While reserving the question whether the collateral consequences
doctrine applied to former Guantanamo detainees,
13
the Court of Appeals held that, even

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

16

if the doctrine applied, it could not save from mootness the petitions filed in these
cases. Id. at 16.
The Court of Appeals rejected any presumption that a former detainee suffers
collateral consequences, stating that we cannot merely presume a former detainee faces
collateral consequences sufficient to keep his petition from becoming moot upon his
release. Gul, 652 F.3d at 17. A former detainee must instead make an actual
showing his prior detention or continued designation burdens him with concrete
injuries. Id. (quoting Spencer v. Kemna, 523 U.S. 1, 14 (1998)). The Court further
noted that [a]s no continuing injury is to be presumed , the burden of demonstrating
jurisdiction is properly borne by the [petitioners].
Petitioner contends that as a direct consequence of his prior detention at
Guantanamo and the governments persistent claim that he, like all detainees, was
properly detained without charge as part of the Taliban, Al Qaeda or associated forces,
the Government has refused to return money that belongs to him and as a consequence,
he is presently unable to support himself. Petitioners Motion at 12. The loss of
Petitioners money is not a collateral consequence of his prior detention or continued
designation that can be redressed by this Court in this habeas case, however. As
explained above, a claim for the return of personal property is not cognizable in a habeas
corpus case. Additionally, the Governments retention of the money that was seized at
the time of Petitioners capture is independent of any claim by Petitioner to habeas relief
or the outcome of his habeas case. As explained by Jay Alan Liotta, Principal Director
for the Office of Rule of Law and Detainee Policy in the Office of the Under Secretary of

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

17

Defense for Policy, Department of Defense, the Department of Defenses policy has been
and is to retain all monies of former Guantanamo detainees in DoD custody seized upon
the detainees capture, regardless of their detention status and whether they have sought
or obtained habeas corpus relief. See Liotta Decl. at 9, 12. Thus, even if this Court
had made or were to make a determination on the merits of Petitioners habeas case, any
such determination would not lead to the return of Petitioners money under Department
of Defense policy, see id., nor would it give rise to a proper habeas claim for return of the
money, as discussed supra.
As explained by Principal Director Liotta, DoDs policy of not returning money
to Guantanamo detainees is based on a strong national security interest in preventing
these funds from being used in a manner that would adversely impact the safety and
security of the United States. Liotta Decl. at 11. Because terrorist organizations such
as al-Qaida rely on financing and support networks to sustain operations and launch
attacks, efforts to counter terrorist financing have played a critical role in U.S.
counterterrorism strategy. Id. These efforts include disrupting terrorist financing
networks and stopping the flow of money to terrorist organizations. Id. Financial
support is integral to terrorist support activities, including those conducted by former
Guantanamo detainees who reengage in terrorist activities or support for such activities,
because money is necessary for recruitment, training, and equipment. Id. (noting
confirmed reengagement in terrorist or insurgent activities of former Guantanamo
detainees). Because money can be as useful to a terrorist organization as a weapon, the
Department of Defense mitigates the threat that a detainee released from Guantanamo

18

may pose by not returning any of his financial instruments or currency that might be used
to adversely impact the safety and security of the United States.
14
Id.
In Gul, an issue analogous to that presented in this case arose as to the No Fly
List. The former detainees in Gul argued, inter alia, that their habeas cases were not
moot because as long as they were designated as enemy combatants, they would suffer
the collateral consequence of being on the No Fly List and thus being barred from
flights entering the United States. Gul, 652 F.3d at 19. The Court of Appeals, however,
rejected this argument because an order granting a former detainees habeas petition
would not lead to his removal from the No Fly List Id. The Court explained that any
individual who was a detainee held at Guantanamo Bay id. (quoting 49 U.S.C.
44903(j)(2)(C)(v)), was to be included on the No Fly List. Thus, petitioners would be
barred from flights entering the United States regardless of whether a court declares they
were unlawfully detained. Id. The Court further explained that [a]n order granting a
detainees habeas petition would not mean his exoneration, nor would it be a
determination he does not pose a threat to American interests; it would mean only that the
Government has not proven the detainee more likely than not satisfied the Authorization
for Use of Military Force, (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001),

14
Because DoDs policy implements the mitigation of threat of Guantanamo detainees
transferred from United States custody, the matter is properly vested in the Executive,
and judicial intervention with respect to the policy would not be appropriate. Cf. Awad
v. Obama, 608 F.3d 1, 11 (D.C. Cir. 2010) (Whether a detainee would pose a threat to
U.S. interests if released is not at issue in habeas corpus proceedings in federal courts
concerning aliens detained under the authority conferred by the AUMF.); Al-Quraishi v.
Nakhla, 728 F. Supp. 2d 702, 721 (D. Md. 2010) (Since the power to seize or destroy
enemy property is so broad, military commanders enjoy ample discretion to determine
what property should be seized or destroyed to further the war effort without giving rise
to civil liability.); see also Ludecke v. Watkins, 335 U.S. 160, 170 (1948) (analyzing a
detainees potency for mischief is a matter of political judgment for which judges
have neither technical competence nor official responsibility).

19

detention standard, including being part of a force associated with al Qaeda or the
Taliban. Id.
By analogy, here, DoDs longstanding policy is to not return money to former
Guantanamo detainees upon their transfer or release regardless of their detention status or
whether they have been granted a writ of habeas corpus. Liotta Decl. at 9, 12. Similar
to the No Fly List, the policy applies to all detainees who have been held at
Guantanamo by the Department of Defense.
15
Thus, any determination on the merits of
Petitioners habeas case would not lead to the return of Petitioners money under
Department of Defense policy, nor would it give rise to a proper habeas claim for return
of the money, as discussed supra. Petitioner, therefore, has not established any concrete
injury from his detention that can be redressed by this habeas court.
Because the United States has relinquished custody of Petitioner and Petitioner
cannot establish any collateral consequence of his detention that can be redressed by this
habeas court, this case is moot and should be dismissed.
CONCLUSION
For the reasons explained above, Petitioners Motion should be denied and
Respondents Motion to Dismiss should be granted.

Dated: April 11, 2014 Respectfully submitted,

STUART F. DELERY
Assistant Attorney General

15
Petitioner concedes that the governments position is not based on anything that Mr.
Ameziane has done, but rather on a general policy applicable to all former detainees,
and that the Governments position is based solely on Mr. Amezianes prior detention at
Guantanamo . . . . Petitioners Motion at 5-6.

20

JOSEPH H. HUNT
Branch Director

TERRY M. HENRY
Assistant Branch Director

/s/ Daniel M. Barish
ANDREW I. WARDEN (IN Bar No. 23840-
49)
DANIEL M. BARISH (D.C. Bar No.
448263)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue N.W.
Washington, DC 20530
Tel: (202) 305-8970
Fax: (202) 616-8470
Andrew.Warden@usdoj.gov

Attorneys for Respondents


x

Civil Action No. 05-392 (ESH)

DJAMEL AMEZIANE,

Petitioner,

v.

BARACK OBAMA, et al.,

Respondents.

:
:
:
:
:
:
:
:
:
:
:
x

REPLY IN FURTHER SUPPORT OF MOTION FOR GRANT OF HABEAS
RELIEF IN THE FORM OF AN ORDER REQUIRING THE GOVERNMENT TO
RETURN PETITIONERS PERSONAL PROPERTY, AND OPPOSITION TO THE
GOVERNMENTS CROSS-MOTION TO DISMISS THIS HABEAS CASE

Petitioner Djamel Ameziane, by and through his undersigned counsel, respectfully
submits this memorandum (1) in reply in further support of his motion for an order granting
habeas relief in the form of an order requiring the government to return his personal property,
and (2) in opposition to the governments cross-motion to dismiss his habeas petition. Mr.
Amezianes motion should be granted and the governments cross-motion should be denied.
Preliminary Statement
Mr. Ameziane has filed a motion to get his money back because the government has
unreasonably withheld it since his transfer five months ago. It may not seem like a large sum,
but it is his life savings and he needs it in order to survive in Algeria to purchase food and
clothing, and support other basic human needs. In its opposition brief, the government does not
dispute that it left Mr. Ameziane utterly destitute, with virtually nothing but his prison uniform;
that it has the money at issue, including approximately 700 (GBP); and that the money is his
Case l:05-cv-00392-UNA Document 36l Filed 05/09/l4 Page l of 29
2
personal property. The government also concedes that the money was not withheld as
contraband or law enforcement evidence, or based on his alleged conduct. In addition, the
government does not seriously dispute that the return of Mr. Amezianes money upon transfer is
contemplated by domestic law, the laws of war, and human rights law, or that the Court has
equitable habeas authority to fashion a practical remedy as law and justice require here.
The government claims that it has withheld Mr. Amezianes money pursuant to a
purported policy that the Defense Department applies to all Guantnamo detainees without
distinction. The government concedes that the policy is not the subject of any formal Defense
Department issuance, but has failed and refused to provide other information about it, including
whether or where it is memorialized, what it actually says, whether or when or how it was
adopted and by whom, whether exceptions to the policy exist or have been made previously, and
whether it has the force of law.
1
Indeed, it is unclear whether an agency rule or policy actually
exists, or whether this is merely a self-serving determination (or perhaps a litigation position)
offered for this particular case by a Defense Department official who seems to believe that all
Guantnamo detainees are potentially dangerous terrorists because they were held at
Guantnamo.
2
But in any event the alleged policy is not entitled to deference as a matter of law.
3

The government also contends that even if domestic and international law provide for the
return of a detainees money and other personal property upon transfer, those authorities do not

1
See Email from government counsel refusing to provide discovery (attached as Reply Ex. A).
2
See Decl. of Jay Alan Liotta 11 (attached to Gvt. Br.) (dkt. no. 357-1) (Liotta Decl.).
3
To the extent that the Court determines the policy is relevant to its resolution of Mr.
Amezianes motion or the governments cross-motion, Mr. Ameziane requests that the Court
order the government to provide discovery or schedule an evidentiary hearing so that Mr.
Ameziane may question Mr. Liotta about the policy. See 28 U.S.C. 2243, 2246.
Case l:05-cv-00392-UNA Document 36l Filed 05/09/l4 Page 2 of 29
3
contemplate a judicial remedy in U.S. courts. The government is wrong as a matter of law, and
in any event does not address many of the arguments cited by Mr. Ameziane in his motion.
In addition, the government contends that the Court lacks jurisdiction to compel the
return of Mr. Amezianes money. The government argues that his claim is not cognizable in
habeas, but ignores that its sole basis for withholding his money (Al Qaeda uses money to launch
attacks) is inextricably intertwined with a central question tested by this habeas case (whether
Mr. Ameziane was part of Al Qaeda). The government alleges that al-Qaeda rel[ies] on
financing and support networks to sustain operations and launch attacks; it is possible that
former detainees will use their returned money to help finance terrorist activities; money is as
dangerous[ ] as a weapon; and retention mitigates the threat that a detainee released from
Guantnamo Bay may pose by removing from his possession any . . . currency that might be
used to adversely impact the safety and security of the United States.
4

Mr. Ameziane filed this habeas case to challenge the legality of his detention and erase
any notion that he is a terrorist or terrorist sympathizer, and the government cites no authority
barring this Court from granting his request for relief.
The government finally argues that Mr. Amezianes motion should be denied and his
habeas case should be dismissed as moot because he has been released from Guantnamo, he
cannot establish any collateral consequence of his prior detention that is redressible by a
favorable ruling on his habeas petition, and the Court lacks jurisdiction over non-habeas claims
pursuant to 28 U.S.C. 2241(e)(2). The governments arguments should be rejected for several
reasons, including because 2241(e)(2) is unconstitutional and therefore void. Construing the

4
Liotta Decl. 11.
4
Courts habeas authority to afford the limited relief requested would avoid any such difficult
constitutional questions.
In sum, if the government believes that Mr. Ameziane presents a possible risk to the
United States, it may employ well-established, congressionally-authorized procedures to block
the assets of specially designated terrorists, which, unlike the governments unilateral action
here, would trigger legal remedies that would allow him to contest the seizure and recover his
money. The government has not done so, of course, because Mr. Ameziane poses no threat.
Argument
I. The Government Does Not Seriously Dispute that U.S. and International Law
Contemplate the Return of Mr. Amezianes Personal Property, and No Authority
Prohibits this Court from Granting Habeas Relief to Enforce that Right

The government contends that the Court lacks habeas jurisdiction to order the return of
Mr. Amezianes money. It claims that neither Army Regulation 190-8 nor international law
requires or authorizes the Court to order return of the money. The government also argues that
Mr. Amezianes claim is not cognizable in habeas. The government is wrong in each respect.
A. The Government Has Waived Opposition to Several Arguments Raised
by Mr. Ameziane in Support of His Entitlement to the Return of His Money

As an initial matter, Mr. Ameziane argues in his opening brief that he is entitled to the
return of his money under the 1907 Hague Convention, the Fourth Geneva Convention, and
international human rights law. See Mot. at 8-10. Because the government does not address
these arguments in its brief, the Court should deem them conceded and any opposition waived.
The government likewise does not dispute that the Court has broad, equitable authority to order
habeas relief that is not limited to an order of release from custody; that the Court may dispose of
this habeas case as law and justice require; and that the Court may utilize ordinary civil rules in
5
order to fashion appropriate relief, including an award of interest on the money withheld. Id. at
10-12 (citing 28 U.S.C. 2243 and Harris v. Nelson, 394 U.S. 286, 291 (1969)).
B. Al-Warafi Does Not Bar Mr. Amezianes Reliance on Army Regulation 190-8
The government argues that Army Regulation 190-8 cannot be invoked in this habeas
case under Al-Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013). The government points to
language from that decision stating that a detainee may invoke Army Regulation 190-8 to the
extent that the regulation explicitly establishes a detainees entitlement to release from custody.
Id. at 629. Citing no other authority, the government asserts that this language means Mr.
Ameziane may not invoke the regulation because he is not arguing for release. Gvt. Br. at 12.
But Al-Warafi did not involve the same issues as Mr. Amezianes motion, and as such the Circuit
had no opportunity to prescribe any limit to the applicability of Army Regulation 190-8. There
is also no basis for a court to conclude that the regulation may be invoked only in part by a
habeas petitioner who seeks an order of release, or may be enforced by a U.S. court only to the
extent that it compels an order of release. The regulation is domestic U.S. law that applies in its
entirety. See Al-Bihani v. Obama, 619 F.3d 1, 12 (D.C. Cir. 2010) (Kavanaugh, J., concurring in
the denial of rehearing en banc) ([A]cting pursuant to congressional authorization, the
Executive Branch has promulgated numerous legally binding rules that regulate wartime conduct
of the military [including Army Regulation 190-8]. . . . Those laws, along with many other
statutes and regulations, together constitute a comprehensive body of domestic U.S. laws of
war.); id. at 13 ([D]omestic U.S. law [is] enforceable in U.S. courts.); id. at 14 n.3 (190-8 has
force of law); see also Service v. Dulles, 354 U.S. 363, 388 (1957) (agency is obligated to
follow its regulations and may not selectively apply their provisions). Habeas relief is also not
limited to orders of release. See Aamer v. Obama, 742 F.3d 1023, 1030 (D.C. Cir. 2014)
6
([A]lthough petitioners claims undoubtedly fall outside the historical core of the writ, that
hardly means they are not a proper subject of statutory habeas.).
C. The Government Misreads U.S. and International Law, Which Are Intended
to Facilitate Rather than Limit the Return of a Detainees Personal Property

The government also argues that Army Regulation 190-8 and the Third Geneva
Convention provisions that it implements as domestic law many not be judicially enforced
because disputes regarding impounded money must be referred to a detainees home country for
resolution. Gvt. Br. at 2, 13-14. The government further implies that resolution by the
detainees home country is the only method of resolution, which is plainly wrong. Nothing in
the regulation or under international law more generally purports to bar a judicial remedy in U.S.
courts. Indeed, Al-Warafi illustrates the contrary a court must apply Army Regulation 190-8
because it has the force of law. The purpose of the regulation and international law that it
implements, both treaty-based and customary, is unambiguously to ensure that detainees held
during armed conflict are able to get their money and other personal property back upon
repatriation. See Mot. at 7-10 (citing provisions for return of money).
5

The government also misreads the specific provisions on which it relies. It cites 6-
3(b)(2) of Army Regulation 190-8, which states in part that disputes about compensation for lost
or impounded money will be referred to the detainees home country. The government also cites
the Commentary to Article 18 of the Third Geneva Convention, which likewise states in part that

5
Citing Section 5 of the Military Commissions Act of 2006, the government argues that a
detainee may not invoke the Geneva Conventions as a source of rights. Gvt. Br. at 11-12.
Putting aside the fact that Mr. Ameziane relies on domestic law as a source of rights, this
provision is unconstitutional because it prescribes rules of decision to the Judicial Department
and is tantamount to allowing one party to a controversy to decide it in its own favor. United
States v. Klein, 80 U.S. 128, 146 (1872). The provision also notably contravenes Hamdan v.
Rumsfeld, 548 U.S. 557, 630-32 (2006), which finally resolved the question of whether Common
Article 3 of the Geneva Conventions applies in these cases.
7
if money is not returned at the end of captivity, a detainee cannot make a claim against the
former Detaining Power. Gvt. Br. at 13. But contrary to the governments contention, these
provisions do not purport to establish a legal barrier to seeking recovery from the Detaining
Power. Rather, as the Commentary plainly shows these provisions recognize that at the end of
hostilities between nation-states a detainee may not as a practical matter have an opportunity to
seek relief from the Detaining Power (because he may not have time before transfer, or may
already have been returned home, or may otherwise lack the ability to bring a claim directly
against the Detaining Power in the wars aftermath). See Intl Comm. of the Red Cross,
Commentary on Geneva Convention (III) Relative to the Treatment of Prisoners of War 170-71
(Jean S. Pictet ed. 1960) [Commentary]. Thus, the Commentary suggest[s] that the
detainees own country should take responsibility for compensating him, and a general
solution to such claims should be worked out between state parties to the conflict within the
context of [a] peace treaty because [t]his solution would certainly be more advantageous for
the prisoner of war. Id. at 171 (emphasis added). In other words, these provisions are intended
to help detainees get their property back rather than to limit or prohibit them from doing so.
6

Any suggestion that Mr. Ameziane must get his money back in the context of a peace
treaty also makes no sense in the context of a war without apparent end in which the United

6
The government also cites the Commentary to Article 68 of the Third Geneva Convention.
Gvt. Br. at 14. That provision recognizes that if money is not returned at the end of captivity the
prisoner of war retains the right to make a claim for it based on a receipt provided to him at the
time of his transfer; but [i]n fact, however, at the end of captivity a prisoner of war will have no
opportunity to make a claim against the Detaining Power and thus must have a mechanism for
obtaining relief in the context of a peace treaty negotiated between the state parties to the
conflict. Commentary at 337 (emphasis added). Again, the obvious reading of this provision is
to ensure that personal property including money is returned to detainees at the time of their
repatriation in the most advantageous way possible rather than to restrict their ability to get it
back based on their status as former prisoners (which, of course, would make no sense at the end
of hostilities).
8
States claims to be engaged in a world-wide armed conflict with a non-state actor such as Al
Qaeda. See Gvt. Br. at 14 n.10 (citing cases in which war reparations claims were extinguished
by peace treaties at the end of hostilities and thereby became claims of the state).
Customary international law further confirms that detainees like Mr. Ameziane are
entitled to the return of their money upon repatriation. See Mot. at 9 (citing ICRC Customary
International Humanitarian Law Rule 122). The government attempts to distinguish Rule 122 on
the ground that it prohibits pillage, which involves unlawful appropriation of property. Gvt. Br.
at 12 n.7.
7
But again, the government reads this provision too narrowly to restrict a detainees
ability to get his money back rather than to ensure its safekeeping during detention and facilitate
its return upon transfer. As state practice relating to Rule 122 illustrates, the prohibition against
pillage in the context of detained persons is not so limited. Indeed, in non-international armed
conflict many states (notably including close U.S. allies Canada, France, Israel and the United
Kingdom) appear simply to refer back to the Third Geneva Convention and principles of armed
conflict applicable to prisoners of war. See Mot. at 9 n.10 (examples of state practice available at
http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule122). For example, the United Kingdom
appears to apply the procedures for processing prisoners of war and safeguarding their personal
property, and regulations like those incorporated in Army Regulation 190-8 that guarantee the
return of the property upon repatriation:
Money that is the private property of the prisoner of war is either credited to his
account or returned to him at the end of captivity. . . . Articles of value may be
taken for safe custody only. A record must be made and a receipt given. The
articles must be returned intact at the end of captivity.

7
Rule 122 addresses pillage only in the context of property belonging to civilians and persons
hors de combat, who are deprived of their liberty; pillage as a prohibited method of warfare is
addressed separately in Customary International Humanitarian Law Rule 52 (available at
http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule52).
9
Id.; see also United Kingdom Ministry of Defence, The Joint Service Manual of the Law of
Armed Conflict 8.25(g), (h) (2004).
8

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

The government argues that Mr. Amezianes motion for the return of his money is not
cognizable in habeas. Gvt. Br. at 5-8. The government is wrong for several reasons.
First, to the extent that the government continues to suggest that habeas relief is limited to
an order of release, see id. at 5, 9, that argument has been squarely rejected by the D.C. Circuit.
See Aamer v. Obama, 742 F.3d 1023, 1030 (D.C. Cir. 2014) ([A]lthough petitioners claims
undoubtedly fall outside the historical core of the writ, that hardly means they are not a proper
subject of statutory habeas.). Mr. Amezianes claim is also plainly cognizable in habeas
because the harm flows directly (and exclusively) from the fact of his prior detention. See id. at
1036 (The illegality of a petitioners custody may flow from the fact of detention, the duration
of detention, the place of detention, or the conditions of detention . . . . In all such cases . . . he
may employ the writ to remedy such illegality.) (citations omitted). Indeed, taken to its logical
extreme there can be no serious question that the governments decision to withhold a detainees
property would operate as a seizure of his corpus and fall within the core of the Courts habeas
jurisdiction for example, if the government decided unilaterally to withhold upon transfer a
detainees clothing or essential medication, or perhaps a prosthetic limb, such that the ultimate
consequence of the governments conduct could foreseeably include death or bodily harm. Like
the concrete harm outlined in Mr. Amezianes opening brief, such significant restraints exceed

8
As in this country, the United Kingdom also recognizes that the law of armed conflict may be
enforced through civil litigation. Id. 16.1(h). See also Hamdan v. Rumsfeld, 548 U.S. 557
(2006) (invalidating Guantnamo military commissions for failure to comply with the Uniform
Code of Military Justice or Common Article 3 of the Geneva Conventions).
10
those ordinarily imposed on the public (including other former prisoners or parolees), and are
enough to invoke the help of the Great Writ. Jones v. Cunningham, 371 U.S. 236, 242-43
(1963) (holding that habeas includes non-physical governmental restraints on an individuals
liberty, such as conditions of parole); id. at 243 (Of course, that writ always could and still can
reach behind prison walls and iron bars. But it can do more. It is not now and never has been a
static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose the
protection of individuals against erosion of their right to be free from wrongful restraints upon
their liberty. While petitioner[ ] [has been released] from immediate physical imprisonment, it
imposes conditions which significantly confine and restrain his freedom.).
As noted above, the government also does not dispute that the Court has broad, equitable
habeas authority to fashion appropriate relief based on the facts and circumstances of the case,
and in doing so may utilize or analogize to ordinary civil rules to award relief such as interest on
the money withheld. See supra pp.4-5; Mot. for Release at 10-12 (redacted) (dkt. no. 343-1)
(citing 28 U.S.C. 2243 and Harris v. Nelson, 394 U.S. 286, 291 (1969)). The government
likewise does not address Mr. Amezianes claim that a courts general equitable powers may be
invoked in order to seek the return of property. See Mot. for Release at 10 (redacted) (dkt. no.
343-1) (citing United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987)).
The government instead argues that because no habeas court has granted the specific
relief that Mr. Ameziane seeks here, he has not asserted a proper habeas claim. Gvt. Br. at 2, 5,
10 n.4. In this particular context, however, the fact that no court has granted a Guantnamo
detainees request for the return of his property is meaningless because to our knowledge no
Case l:05-cv-00392-UNA Document 36l Filed 05/09/l4 Page l0 of 29
11
detainee has made such a request to the courts previously.
9
In addition, at common law habeas
corpus afforded broad relief appropriate to the circumstances of the particular case. See Paul D.
Halliday, Habeas Corpus: From England to Empire 176 (2010) ([The] Kings Bench issued the
writ by reasoning not from precedents, but from the writs central premise: that it exists to
empower the justices to examine detention in all forms. . . . There were no real precedents, but
there was nothing any more surprising about using the writ [in evolving ways].). Indeed,
habeas ensures that errors [are] corrected and justice should be done . . . even where law ha[s]
not previously provided the means to do so. . . . There was and is another word for this vast
authority to do justice, even in the absence of previously existing rules or remedies: equity. Id.
at 87; Boumediene v. Bush, 553 U.S. 723, 780 (2008) (habeas courts not constrained by black-
letter rules from providing greater protection in cases of non-criminal detention); Jones v.
Cunningham, 371 U.S. 236, 243 (1963) (habeas is not a static, narrow, formalistic remedy; its
scope has grown to achieve its grand purpose). See generally Br. of Legal Historians and
Habeas Corpus Experts as Amici Curiae Supporting Petrs Petition for Writ of Certiorari,
Trinidad y Garcia v. Thomas, 133 S. Ct. 845 (Nov. 8, 2012) (No. 12-6615) (available at
http://www.lawfareblog.com/wp-content/uploads/2012/11/Trinidad-y-Garcia-Cert-Amicus.pdf).

9
Counsel are informed that at least two former detainees requested the return of their property,
which the government denied that it possessed, and no further relief was pursued in court. This
is not to say that the government has not left other detainees utterly destitute. See The Report of
the Constitution Projects Task Force on Detainee Treatment ch. 8, at 284 (2013) (quoting
former detainee from the UK Bisher al-Rawi: When I was [first] released from Guantnamo, I
did not have a penny and I did not have any clothes. Thats a fact, I only had the clothes that
were on me. Nothing else and not a penny in my pocket. And I was [47] years old . . . and not a
penny in my pocket. . . . [Most of the people] leaving GTMO . . . they havent got anything.
There must be a system to assist them to become normal.) (alterations in original) (available at
http://detaineetaskforce.org/pdf/Full-Report.pdf).
Case l:05-cv-00392-UNA Document 36l Filed 05/09/l4 Page ll of 29
12
The governments contention that habeas courts have barred claims such as Mr.
Amezianes is also incorrect. In support of its argument, the government cites several mostly-
pro se prisoner cases, none of which is binding on this Court and none of which supports the
sweeping proposition for which the government cites it. Gvt. Br. at 5-8. Not a single case cited
by the government is remotely illustrative or relevant to the instant case, where the government
has wrongfully withheld a detainees property based on the mere fact of his prior detention,
which he claims was unlawful. Rather, for example, the cases variously involve petitioners who
do not appear to have been imprisoned; who alleged incomprehensible claims; who alleged
mere negligence and other tort claims again prison officials for lost property; who made
claims for property that either did not belong to them, was seized as law enforcement evidence,
or was properly retained on the merits; and whose habeas claims were dismissed for unrelated
reasons including mistaken filing, failure to exhaust state remedies, and res judicata or collateral
estoppel. Other decisions reject habeas jurisdiction over conditions of confinement claims,
which, as noted, is squarely addressed in Aamer. And none provides meaningful analysis of
whether claims to recover property are cognizable in habeas; the issues are summarily resolved.
In the case In re Hill, No. 04-5436, 2005 U.S. App. LEXIS 4280 (D.C. Cir. Mar. 14,
2005), for example, a per curiam opinion that was four sentences long, the D.C. Circuit
dismissed a prisoners pro se case because it was not filed in the proper district where his
immediate custodian was located. The court also dismissed his claim for non-habeas relief,
without prejudice, because the court has no authority to order the return of petitioners
property. But the court offered no explanation of what property was at issue or what specific
form of relief was requested with respect to the property. Moreover, it seems that the case below
was docketed not as a habeas case but as an action pursuant to 42 U.S.C. 1983, which was
13
promptly dismissed by Judge Collyer (apparently on the same day that it was docketed). See Hill
v. United States, No. 04-cv-01349 (D.D.C.).
10
Accordingly, the D.C. Circuit did not publish its
opinion because the panel concluded it lacked precedential value. See D.C. Cir. R. 36(e)(2).
In sum, the government cites no authority that would prohibit this Court from exercising
habeas jurisdiction over Mr. Amezianes motion for the return of his money. To the contrary,
the Court has equitable habeas authority to grant relief as justice requires in this case given the
truly appalling nature of what has happened to Mr. Ameziane. The Court should further interpret
its habeas authority, including its authority under 28 U.S.C. 2241 and 2243, broadly to avoid
the serious constitutional problems would otherwise arise concerning 2241(e)(2). See infra
Part III; Zadvydas v. Davis, 533 U.S. 678, 689-90 (2001) (construing statute to avoid serious
constitutional concerns); Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (construing statute
concerning aliens not formally admitted to the United States to avoid constitutional issues).
II. This Habeas Case Is Not Moot Because the Court May Grant Effective Relief

As the D.C. Circuit held in this case, a case is not moot unless it is impossible for the
court to grant any effectual relief whatever. Ameziane v. Obama, 699 F.3d 488, 492 (D.C. Cir.
2010) (quotation marks omitted). Citing Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011), the
government argues that Mr. Amezianes habeas case should be dismissed because he is no longer
detained at Guantnamo and he has not suffered any collateral consequences of his prior
detention that can be redressed by the Court. Gvt. Br. at 3, 15-19. The government claims that
the loss of Mr. Amezianes life savings cannot be remedied by the Court because even if he
prevailed in habeas the government would not return his money pursuant to its policy to retain
the money of any detainee held at Guantnamo regardless of the facts and circumstances of the

10
It appears from the District Court docket that the petitioner filed numerous pro se actions.
14
particular case. Id. at 16-17. To be clear, the government claims the right to retain the property
of anyone ever held at Guantnamo, whether mistakenly brought there or not, including the
proverbial little old lady in Switzerland who unwittingly donates money to what she thinks is a
charity that helps orphans in Afghanistan, whom the government once claimed authority to
detain for the duration of hostilities. See In re Guantanamo Detainee Cases, 355 F. Supp. 2d
443, 475 (D.D.C. 2005). The governments contention is as overbroad as it is baseless.
11

11
The government continues to argue that the collateral consequences doctrine should not apply
to Guantnamo detainee cases. Gvt. Br. at 15 n.13. Mr. Ameziane contends it does apply, that
collateral consequences should be presumed, and that the burden of proof to establish mootness
should be on the government. The D.C. Circuit held in Gul that collateral consequences would
not be presumed and that a detainee must make an actual showing that his prior detention or
continued enemy-combatant designation burdens him with concrete injuries, but it did so
because Guantanamo and designation as an enemy combatant are recent phenomena; we have
no basis for inferring they routinely have collateral consequences. 652 F.3d at 17. Whatever
the case may have been at the time Gul was decided, there is now a clear factual record of the
burdens and disabilities that former detainees continue to suffer upon their release. See, e.g., The
Report of the Constitution Projects Task Force on Detainee Treatment ch. 8 (2013) (available at
http://detaineetaskforce.org/pdf/Full-Report.pdf). As the governments brief makes clear, the
Guantnamo cases are unique and simply unprecedented with regard to the damaging stigma that
is associated with prior detention stigma that would be mitigated if not eliminated by a court
ruling that a detainees detention was unlawful. See Gvt. Br. at 17-18 (suggesting all detainees
held were by definition part of Al Qaeda and therefore present a risk of reengag[ing]). For
example, the harm includes irresponsible recidivism claims and bare allegations of involvement
in controversial incidents despite an admitted lack of any supporting evidence. See, e.g., Liotta
Decl. 11 (reciting wildly overblown recidivism statistics); Leaving Guantnamo: Policies,
Pressures and Detainees Returning to the Fight, House Armed Servs. Comm., 112th Congr.
(Comm. Print 2012) (same). Compare also, e.g., Adam Goldman, Former Guantanamo
Detainee Implicated in Benghazi Attack, Wash. Post, Jan. 7, 2014 (U.S. officials suspect that a
former Guantanamo Bay detainee played a role in the attack on the American diplomatic
compound in Benghazi, Libya.), with David D. Kirkpatrick, U.S. to List Libyan Groups and
Militant Tied to Benghazi Attack as Terrorists, N.Y. Times, Jan. 8, 2014 (The designation was
also expected to apply to . . . a former inmate at the United States military prison in Guantnamo
Bay . . . . but officials briefed on the designations and the intelligence reports said that there was
no evidence linking him to the attack.) (emphasis added).
15
Mr. Ameziane has demonstrated actual harm that may be remedied by an order of this
Court granting him habeas relief. As explained in his opening brief, Mr. Ameziane has been
forced to rely on the uncertain, temporary charity of others to support himself since his forced
transfer because the government will not give back his money. The government concedes in its
opposition brief that it has withheld the money not based on Mr. Amezianes conduct at any time
but rather based on the fact that he was detained at Guantnamo for about twelve years. See
Liotta Decl. 12. Asserting in substance that everyone held at Guantnamo was part of Al
Qaeda, the government contends that retention of detainees money is necessary to mitigate the
threat that the detainee will use that money to harm the United States upon release, [b]ecause
money can be [ ] useful to a terrorist organization like Al Qaeda. Gvt. Br. at 17. The logic that
Guantnamo detainees are terrorists because they were held at Guantnamo is circular, of course,
and the purported concern that they would use their money to harm the United States rather than
buy clothes and food is entirely speculative without reference to the facts of their particular
cases. But the harm to former detainees like Mr. Ameziane is actual and undisputed here.
There is also no serious question that the Court may remedy the harm to Mr. Ameziane
by granting habeas relief and ordering the government to return his property. Alternatively, the
Court could grant his habeas petition on the ground that he is not part of Al Qaeda, the Taliban or
associated forces, which would vitiate the governments purported basis for withholding his
money. Any suggestion that seizure of Mr. Amezianes money was a necessary pre-condition of
his transfer is baseless as reflected by the governments prior, unqualified representations that
there was no longer any military need to detain him and his detention was no longer at issue,
seizure of his money was plainly irrelevant to his transfer. Indeed, having relied on those
representations as a basis to avoid a ruling on the merits of his habeas petition, the government
16
should be judicially estopped from asserting now that Mr. Ameziane presented a threat that
required retention of his money. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply because his interests have changed, assume a
contrary position, especially if it be to the prejudice of the party who has acquiesced in the
position formerly taken by him.) (internal citation and quotation omitted); Zedner v. United
States, 547 U.S. 489, 504 (2006) (generally, judicial estoppel prevents a party from prevailing
in one phase of a case on an argument and then relying on a contradictory argument to prevail in
another phase) (internal citation and quotation omitted).
12

The governments self-serving conduct is also neither binding on the Court nor entitled to
judicial deference as a matter of law. Given the paucity of information about the policy provided
by the government, combined with its refusal to provide any measure of discovery about where
the policy resides, what it actually states, whether it has ever been applied before to block the
return of a detainees property, and ultimately whether it has the force of law, there is no basis to
conclude that the policy constrains this Courts habeas authority or otherwise precludes relief in
the form of an order requiring the government to return the money. Cf. United States v. Mead
Corp., 533 U.S. 218, 228 (2001) (agencys informal interpretation of statute not entitled to
deference). For the same reason the Court should not give the self-styled policy any weight
when conducting its own review on the merits of Mr. Amezianes motion. Id. (where agency
interpretation is not entitled to deference, it is reviewed de novo and entitled only to weight

12
Mr. Ameziane does not ask the Court to determine whether he poses a threat to the United
States. The government long ago conceded that he does not and should be released. Thus, the
governments claim that threat mitigation is a matter properly vested in the Executive to the
exclusion of the Judiciary is irrelevant. Gvt. Br. at 18 n.14.
17
that will depend upon the thoroughness evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements, and all those factors which give it power
to persuade, if lacking power to control) (citation and quotation marks omitted).
The government next claims that its retention of detainee funds regardless of whether
they prevail in habeas moots this case because it is similar to the placement of a detainee on the
No Fly List, which was rejected in Gul as insufficient to show collateral consequences of prior
detention. Gvt. Br. at 18-19. The governments analogy is inapt. Gul rejected the claim that
detainees suffer cognizable harm by being placed on the No Fly List because that designation is
mandated by a congressional statute and is an entirely separate barrier imposed by that law.
Gul v. Obama, 652 F.3d 12, 19 (D.C. Cir. 2011). Gul also noted the unique interest served by
No Fly List designations, which is to control entry into the United States. Id. (citing Kiyemba v.
Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010)). The court further explained that the decision to
exclude someone from the United States is informed by a number of factors in immigration
law, none of which is whether the individual had been detained at Guantnamo and designated as
an enemy combatant. Id. at 19-20.
Here, of course, the alleged policy at issue does not have the force of law, is not entitled
to deference or weight, and does not involve unique interests such as controlling entry into the
United States. The only factor in determining whether a detainees funds should be withheld is
whether he was properly held at Guantnamo and thus (at least according to one government

18
official) by definition was part of Al Qaeda a central question tested through habeas.
13
An
individual who is placed on the No Fly List is also notably entitled to challenge his designation.
See 49 U.S.C. 44903(j)(2)(G)(i); 44926(a); 46110; Latif v. Holder, 686 F.3d 1122, 1125-26
(9th Cir. 2012). Yet the government apparently contends that no similar remedies should be
available to detainees like Mr. Ameziane whose money it seizes unilaterally regardless of the
allegations against them.
Moreover, if the government were truly concerned that Mr. Ameziane might use his
money to harm the interests of the United States, it already has an available, congressionally-
prescribed remedy. It could seek to add him to the List of Specially Designated Nationals and
Blocked Persons (SDN List), which includes individuals and companies owned or controlled
by, or acting for or on behalf of, targeted countries, as well as individuals, groups, and entities,
such as terrorists and narcotics traffickers designated under programs that are not country-
specific. Office of Foreign Assets Control, SDN List (available at http://www.treasury.gov/
resource-center/sanctions/SDN-List/Pages/default.aspx). Individuals who are added to the SDN
List may have their assets frozen pursuant to various provisions of law, including 50 U.S.C.
1702(a)(1)(C). But again, an individual added to the SDN List has available remedies to
challenge his designation and recover his blocked property. See, e.g., 31 C.F.R. 501.807. By

13
The governments isolated statement that its policy of withholding detainees money is
analogous to the transfer requirements of the National Defense Authorization Act for Fiscal
Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (Dec. 26, 2013) (NDAA), also has no bearing on
this case. See Liotta Decl. 11. Whatever that vague statement was intended to mean, the
NDAA was enacted after Mr. Amezianes transfer. The transfer restrictions also do not apply to
detainees who prevail in habeas. NDAA 1035(a)(2) (court order exception); see also Mot. for
Release at 17-20 (redacted) (dkt. no. 343-1) (addressing 2013 NDAA restrictions). Thus to the
extent the government might claim that it would continue to withhold Mr. Amezianes money
regardless of whether he prevailed in habeas because retention would be required by the NDAA
threat-mitigation requirement, see Gvt. Br. at 18 & n.14, that argument is meritless.
19
contrast, Mr. Ameziane, who no one seriously contends is a terrorist, is not afforded the same
protections as a specially designated terrorist.
III. The Jurisdiction-Stripping Provision of 28 U.S.C. 2241(e)(2) Is Unconstitutional
The government argues that Mr. Amezianes motion should be denied and his habeas
petition should be dismissed on the ground that the Court lacks jurisdiction pursuant to 28 U.S.C.
2241(e)(2). Gvt. Br. at 2, 8 nn.2-3, 9-10. Section 2241(e)(2) is void to the extent that it
purports to strip federal courts of federal question jurisdiction. It therefore does not foreclose
this Court from hearing such claims.
14

A. Section 2241(e)(2) Violates Article III
1. The Constitution Forbids Removal of All
Federal Court Jurisdiction over Federal Questions

Section 2241(e)(2) purports to eliminate all jurisdiction (both original and appellate) in
all courts (both federal and state) over various types of claims relating to the detention and
transfer of enemy combatants. The Constitution forbids such a broad elimination of all federal
jurisdiction over federal question claims like those at issue here.
The text of Article III states:
Section 1. The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. . . .

Section 2. The judicial Power shall extend to all Cases, [arising under federal
law];to all Cases affecting [foreign officials];to all Cases of admiralty and
maritime Jurisdiction;to Controversies [between six sets of governmental
and/or diverse parties].

In all Cases affecting [foreign officials and states], the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the supreme Court

14
Mr. Ameziane also contends that 2241(e)(2) does not apply because he was not properly
detained as an enemy combatant. But see Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014).
20
shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.

U.S. Const. art. III, 1-2. Section 2 uses imperative language (shall extend) to make clear
that the judicial Power must include all Cases involving federal questions (those arising
under this Constitution, the Laws of the United States, and Treaties made . . . under their
Authority).
15
And the first sentence of Section 1 ensures that some federal court whether the
Supreme Court or some lower federal courts created by Congress will exercise this judicial
power, again using imperative language (shall be vested).
The clause in Section 1 giving Congress discretion over the structure of the lower federal
courts and the clause in Paragraph 2 of Section 2 allowing Congress to make exceptions to the
Supreme Courts appellate jurisdiction cannot be read in isolation from the sections mandating
that [t]he judicial Power . . . shall be vested in federal courts and shall extend to all cases . . .
arising under federal law. Congress does not have the option to eliminate all lower federal
courts and simultaneously to restrict the Supreme Courts appellate jurisdiction without
limitation. Instead, read together, the first three paragraphs of Article III mandate that some

15
The judicial Power must also extend to all Cases in the other two mandatory categories
of Section 2 Ambassadors and Admiralty. But out of the nine categories of Cases and
Controversies set forth in Section 2, only in the three sets of Cases must some form of
federal jurisdiction lie. See Akhil R. Amar, A Neo-Federalist View of Article III: Separating the
Two Tiers of Federal Jurisdiction, 65 B.U.L. Rev. 205, 261-62 (1985). In other words, these
three sets of Cases (involving federal questions, ambassadors, and admiralty) comprise a
mandatory tier of cases in which (unlike the other six sets of Controversies involving
governmental and/or diverse parties) state courts were not permitted to be the final word; at
some point, a federal court must be able to rule on the issue, even if only on appellate review
from a state court system. Id. Of course, as to Ambassador cases, original federal jurisdiction in
the Supreme Court is guaranteed by Section 2 2. That leaves only Cases, in Law and Equity,
arising under federal law, and admiralty cases (which were considered to arise in neither law
nor equity, see Akhil R. Amar, Article III and the Judiciary Act of 1789, 138 U. Pa. L. Rev.
1499, 1513 (1990)). Thus, putting aside the Ambassador cases reserved for the original
jurisdiction of the Supreme Court, and the state-vs.-state controversies that remain in the
Supreme Courts original jurisdiction after the 11th Amendment, Article III reserves for
mandatory federal court review only claims involving uniquely federal subject matter cases
arising under federal law and admiralty. Just such uniquely federal questions are at issue in
the present case.
21
federal court must have some form of jurisdiction (whether appellate or original) over all Cases
. . . arising under federal law. This requirement can be satisfied by vesting original federal-
question jurisdiction in the district courts (as has existed consistently since 1875); or, if original
jurisdiction is left to state courts, by allowing an avenue for appeal to some federal court at some
point in the life of the case (as has existed consistently since the Founding, see, e.g., 25 of the
first Judiciary Act, which expressly authorized appellate review of federal questions in the
Supreme Court).
16

The history of the drafting of Article III and the confirmation debates confirm this view.
See generally 1 Max Farrand, The Records of the Federal Convention of 1787 (1911) (Randolph;
Yates notes). The ratification debates in the several states produced almost no suggestions by
[the Constitutions advocates] that Congress could delimit the sphere of federal court
jurisdiction, Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided
Quest for the Original Understanding of Article III, 132 U. Pa. L. Rev. 741, 810 (1984), and
Alexander Hamiltons famous defenses of the federal judiciary in The Federalist Nos. 78-82 are
consistent with the notion of mandatory federal jurisdiction over the three sets of Cases in
Section 2. See The Federalist No. 81 (power of Congress to create inferior federal courts is
evidently calculated to obviate the necessity of having recourse to the Supreme Court in every
case of federal cognizance) (emphasis added); The Federalist No. 82 (The evident aim of the
plan of the convention is that all the causes of the specified classes, shall for weighty public

16
The 1789 Judiciary Act, 25, 1 Stat. 73, 85-87, granted the Supreme Court appellate
jurisdiction over federal questions (more precisely, denials of federal claims or exemptions)
arising on appeal from state court systems, see generally Amar, Article III and the Judiciary Act
of 1789, 138 U. Pa. L. Rev. at 1515-17, and the current original general federal question
jurisdiction in district courts has been continuously available since 1875. See Jurisdiction and
Removal Act of 1875, 1, 18 Stat. 470 (codified at 28 U.S.C. 1331(a)); see also Judiciary Act
of 1801, 11, 2 Stat. 89, 92 (first creating plenary federal question jurisdiction in district courts).
Case l:05-cv-00392-UNA Document 36l Filed 05/09/l4 Page 2l of 29
22
reasons receive their original or final determination in the courts of the Union.) (emphasis
added); see also 1 Annals of Congress 831-32 (J. Gales ed. 1789) (Rep. Smith, in debates over
Judiciary Act, stating Article III allows no discretion, then, in Congress to vest the judicial
power of the United States in any other tribunal than in the Supreme Court and the inferior courts
of the United States.). See generally Clinton, 132 U. Pa. L. Rev. 741.
The U.S. Supreme Court thus has never upheld a complete preclusion of all federal
judicial fora for federal claims, and has applied the strongest of presumptions against preclusion
of such claims.
17
Article III demands some federal court review whether original or appellate
over all federal question claims. See Martin v. Hunters Lessee, 14 U.S. (1 Wheat.) 304, 329,
331 (1816) (the whole judicial power set forth in Section 2 must . . . be vested in some
[federal] court, by congress, at all times, . . . either in an original or appellate form ); see also
3 Joseph Story, Commentaries on the Constitution of the United States 1589 (1833) (One of
two courses only could be open for adoption; either to create inferior courts under the national
authority, to reach all cases fit for the national jurisdiction, which either constitutionally or
conveniently, could not be of original cognizance in the Supreme Court; or to confide
jurisdiction of the same cases to the state courts, with a right of appeal to the Supreme Court.).
Because 28 U.S.C. 2241(e)(2) purports to eliminate all such review over Mr. Amezianes
claims arising under U.S. and international law, it is unconstitutional and void.

An unconstitutional jurisdictional statute must be disregarded as void. Marbury v.
Madison, 5 U.S. 137, 177, 180 (1803); see also United States v. Klein, 80 U.S. 128, 147-48

17
See, e.g., Felker v. Turpin, 518 U.S. 651 (1996) (upholding provisions depriving district courts
of jurisdiction over second or successive habeas petition because the Supreme Court retained
original jurisdiction); Reno v. AADC, 525 U.S. 471 (1999) (upholding severe but not complete
restriction of federal judicial review); see also Bowen v. Mich. Acad. of Family Physicians, 476
U.S. 667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415
U.S. 361, 366-67 (1974).
23
(1871) (disregarding unconstitutional statute that divested court of jurisdiction and reinstating
judgment obtained under prior statutory scheme); Kiyemba v. Obama, 561 F.3d 509, 512 n.**
(D.C. Cir. 2009) (invalidation of jurisdiction-stripping provision of 28 U.S.C. 2241(e)(1)
necessarily restored the status quo ante, in which detainees at Guantnamo had the right to
petition for habeas under 2241).
2. Al-Zahrani Does Not Require a Contrary Result
The government cites Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. 2012), in support
of its claim that 2241(e)(2) strips this Court of jurisdiction to consider non-habeas claims filed
by Guantnamo detainees. Gvt. Br. at 9. But nothing in the Al-Zahrani opinion indicates that
the D.C. Circuit actually decided that case on properly jurisdictional grounds, or otherwise
foreclosed Mr. Amezianes argument that the Constitution forbids the removal of all federal
court jurisdiction over claims arising under federal law. Indeed, the entire treatment of the Al-
Zahrani plaintiffs constitutional objections to the jurisdictional issue takes up one paragraph in
the panels opinion, with the discussion at best ambiguous as to whether it addresses jurisdiction
proper the power of the court to rule on damages claims or merely whether Congress
intended a remedy to exist. See Al-Zahrani, 669 F.3d at 319-20 (But the only remedy
[plaintiffs] seek is money damages, and, as the government rightly argues, such remedies are not
constitutionally required. . . . As we have recently said, Not every violation of a right yields a
remedy, even when the right is constitutional.) (quoting Kiyemba v. Obama, 555 F.3d 1022,
1027 (D.C. Cir. 2009)); see also Janko v. Gates, 741 F.3d 136, 145-47 (D.C. Cir. 2014) (citing
Al-Zahrani without addressing Article III issues); Hamad v. Gates, 732 F.3d 990, 1003-06 (9th
24
Cir. 2013) (same).
18
The Al-Zahrani opinion, on this reading, falls into a long line of decisions
using the term jurisdictional loosely
19
to refer to the absence of a valid cause of action. Cf.
Steel Co. v. Citizens for Better Envt, 523 U.S. 83, 89 (1998) (It is firmly established in our
cases that the absence of a valid (as opposed to arguable) cause of action does not implicate
subject-matter jurisdiction, i.e., the courts statutory or constitutional power to adjudicate the
case.) (emphasis in original).
B. The Due Process Clause Also Limits Congresss Power to Strip Jurisdiction
The Fifth Amendment to the Constitution post-dates Article III and contains further
limitations on Congresss ability to modify federal jurisdiction. The D.C. Circuit has repeatedly
confirmed that, to the extent that the provisions of Article III are inconsistent with the due
process clause of the fifth amendment, those provisions of Article III must be considered
modified by the amendment. Bartlett v. Bowen, 816 F.2d 695, 706 (D.C. Cir. 1987) (quotation
marks omitted).
20
As an initial matter, the Due Process Clause suggests that there must be some
federal judicial forum for the enforcement of federal rights. Id.; see also Am. Coal. for

18
The availability of the particular remedy that Mr. Ameziane seeks in this case is not at issue
because the Court unquestionably has equitable authority, in habeas or otherwise, to fashion an
appropriate remedy based on the facts and circumstances of the case. See Boumediene v. Bush,
553 U.S. 723, 779 (2008) (Indeed, common-law habeas corpus was, above all, an adaptable
remedy. Its precise application and scope changed depending upon the circumstances.); United
States v. Martinson, 809 F.2d 1364, 1367 (9th Cir. 1987) (return of money governed by a courts
general equitable powers).
19
See, for example, on this point, a number of recent corrective decisions of the Supreme Court:
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (Title VII 15-emplyee minimum rule not
jurisdictional, and thus subject to waiver); Eberhart v. United States, 546 U.S. 12 (2005) (per
curiam) (seven-day filing period under Fed. R. Crim. P. 33 not jurisdictional, and thus subject to
waiver); Scarborough v. Principi, 541 U.S. 401 (2004) (EAJA element that government action
be not substantially justified was not jurisdictional); Kontrick v. Ryan, 540 U.S. 443 (2004)
(Fed. R. Bankr. P. 4004 deadline not jurisdictional, and thus subject to waiver).
20
Reconsideration en banc was granted and then withdrawn, reinstating the panel opinion. See
Bartlett v. Bowen, 824 F.2d 1240, 1241-42 (D.C. Cir. 1987).
25
Competitive Trade v. Clinton, 128 F.3d 761, 765 (D.C. Cir. 1997) ([A] statute that totally
precluded judicial review for constitutional claims would clearly raise serious due process
concerns.); Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986);
Webster v. Doe, 486 U.S. 592, 603 (1988). Section 2241(e)(2) must then at a minimum be
interpreted to preserve jurisdiction to address the issues raised by Mr. Amezianes case. See
Bataglia v. Gen. Motors, 169 F.2d 254, 257 (2d Cir. 1948) ([T]he exercise of Congress of its
control over jurisdiction is subject to compliance with at least the requirements of the Fifth
Amendment. . . . [I]t must not so exercise that power as to deprive any person of life, liberty, or
property without due process of law or to take private property without just compensation.).
The Due Process Clause also incorporates equal protection principles identical to those
contained in the Fourteenth Amendment against the federal government;
21
it both protect the

21
The Supreme Court has recognized that the Fifth Amendments Due Process Clause embraces
the concept of equal justice under law. Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976).
Accordingly, the Fourteenth Amendments Equal Protection Clause and the Fifth Amendments
Due Process Clause require the same type of analysis. Id.; see Adarand Constructors v. Pena,
515 U.S. 200, 217 (1995) ([T]he equal protection obligations imposed by the Fifth and the
Fourteenth Amendments [are] indistinguishable).
26
rights of aliens within the territorial jurisdiction of the United States as well as citizens.
22

Section 2241(e)(2) violates those principles because by its terms it applies only to aliens. By
drawing categorical distinctions between citizens and aliens even when each is properly

22
U.S. Const. amend. XIV, 1; Plyler v. Doe, 457 U.S. 202, 210 (1982). Due process and
habeas are also inextricably intertwined, see Hamdi v. Rumsfeld, 542 U.S. 507, 525-26 (2004)
(plurality opinion) (discussing interaction of habeas and due process); id. at 555-57 (Scalia, J.,
dissenting) (same), and to the extent habeas jurisdiction has been recognized at Guantnamo at
least some measure of the Due Process Clause also reaches there. See id. at 538 (plurality
opinion) ([A] court that receives a petition for a writ of habeas corpus from an alleged enemy
combatant must itself ensure that the minimum requirements of due process are achieved.);
Boumediene v. Bush, 553 U.S. 723, 770 (2008) (applying the impracticable and anomalous test
for application of constitutional rights outside the United States and concluding that there are
few practical barriers to the running of the writ at Guantnamo); id. at 784-85 (addressing due
process). See also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (The Fourteenth Amendment
to the Constitution is not confined to the protection of citizens. . . . [Its] provisions are universal
in their application, to all persons within the territorial jurisdiction.); Rasul v. Bush, 542 U.S.
466, 487 (2004) (Kennedy, J., concurring) (Guantanamo Bay is in every practical respect a
United States territory where our unchallenged and indefinite control . . . has produced a place
that belongs to the United States, extending the implied protection of the United States to it.);
cf. Hussain v. Obama, No. 13-638, 2014 U.S. LEXIS 2548, at *2 (S. Ct. Apr. 21, 2014) (Breyer,
J., statement respecting the denial of certiorari) (Supreme Court has not determined whether the
Constitution may limit the duration of detention at Guantnamo). Nor can the D.C. Circuits
decision in Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (Kiyemba I), be fairly read to
preclude the application of due process entirely at Guantnamo; that decision addressed only the
narrow question of whether due process authorizes entry into the United States of non-citizens
without property or presence in the country. Id. at 1026-27. Indeed, there is no other way to
read Kiyemba I consistently with subsequent panel decisions of the Circuit. See Kiyemba v.
Obama, 561 F.3d 509, 514 n.* (D.C. Cir. 2009) (Kiyemba II) ([W]e assume arguendo these
alien detainees have the same constitutional rights . . . as . . . U.S. citizens detained by the U.S.
military in Iraq); id. at 518 n.4 (Kavanaugh, J., concurring) ([A]s explained in the opinion of the
Court and in this concurring opinion, the detainees do not prevail in this case even if they are
right about the governing legal framework: Even assuming that the Guantanamo detainees . . .
possess constitutionally based due process rights they would not prevail); Kiyemba v. Obama,
605 F.3d 1046, 1048 (D.C. Cir. 2010) (Kiyemba III) ([P]etitioners never had a constitutional
right to be brought to this country and released.); id. at 1051 (Rogers, J., concurring)
(Whatever role due process and the Geneva Conventions might play with regard to granting the
writ, petitioners cite no authority that due process or the Geneva Conventions confer a right of
release in the continental United States.); cf. Kiyemba v. Obama, 131 S. Ct. 1631, 1631-32
(2011) (Breyer, Kennedy, Ginsburg, Sotomayor, JJ., statement respecting the denial of certiorari)
(third countrys offer to resettle detainees transformed their due process claim seeking entry into
the United States, which, should circumstances change in the future, may be raised again before
the Court).
27
determined to have acted in the very same way, it violates the equal protection component of
the Due Process Clause of the Fifth Amendment. See Graham v. Richardson, 403 U.S. 365, 372
(1971) ([C]lassifications based on alienage . . . are inherently suspect and subject to close
judicial scrutiny.). Citizenship is no bar to belligerency, see Ex Parte Quirin, 317 U.S. 1, 37
(1942), and the Authorization for Use of Military Force (AUMF), Pub. L. 107-40, 2(a), 115
Stat. 224, 224 (2001), draws no such distinction. But 2241(e)(2) deprives only an alien
enemy combatant of the right of access to the courts.
In addition, were this Court to read the statute to eliminate jurisdiction over Mr.
Amezianes motion, the statute would violate the equal protection component of the Fifth
Amendment because it discriminates in the allocation of fundamental rights, and, in particular,
the fundamental right of access to the courts. See, e.g., Plyler v. Doe, 457 U.S. 202, 216-17
(1982); see also 152 Cong. Rec. H7940 (daily ed. Sept. 29, 2006) (statement of Rep. Nadler: If
you pick up two people in New York, one of them is a citizen, they go to the Federal court, and
you accuse them of being unlawful enemy combatants, they go to the regular American system
of justice. One is awaiting citizenship but is a permanent resident, he goes through this other
[system of justice]. He has no rights . . . . That is clearly unconstitutional. It is a denial of equal
protection.). The Supreme Court has applied heightened review to government efforts to
discriminate in access to courts, even based on non-suspect classifications. See, e.g., Tennessee
v. Lane, 541 U.S. 509, 522-23 (2004) (stating that the right of access to the courts is subject to
more searching judicial review under equal protection).
Moreover, a jurisdiction-stripping provision that was intended to apply only to Muslims
violates equal protection principles. No non-Muslim has been detained by the United States
government as an enemy combatant anywhere to our knowledge by the time of or since the
28
enactment of 28 U.S.C. 2241(e)(2). Even a facially neutral law applied in so uniformly
discriminatory a manner triggers strict scrutiny. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356,
373-74 (1886). Congress was clearly aware of this fact. See 152 Cong. Rec. S.10,395 (daily ed.
Sept. 28, 2006) (statement of Sen. Cornyn: Let me just say a word about who that enemy is. . . .
[I]t is an enemy that has hijacked one of the worlds great religions, Islam); id. at S.10,402
(statement of Sen. McConnell: We are a Nation at war, and we are at war with Islamic
extremists.). In such circumstances, courts have applied strict scrutiny to overturn legislation
motivated in part by desire to disfavor members of a suspect class. Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).
23
The Court should apply the same standard
here and invalidate 28 U.S.C. 2241(e)(2).
Conclusion
For all of the foregoing reasons, Mr. Amezianes motion should be granted and the Court
should order the government to return his money, with interest, or schedule a full habeas hearing
that will ultimately achieve the same result. The Court should also deny the governments cross-
motion to dismiss. In addition, the Court should order any other relief that it deems necessary
and appropriate pursuant to its equitable habeas authority.

23
The Supreme Court does not require a plaintiff to prove that [legislative] action rested solely
on . . . discriminatory purposes . . . [If] a discriminatory purpose has been a motivating factor in
the decision, [ ] judicial deference is no longer justified. Arlington Heights, 429 U.S. at 264-65
(emphasis added). The historical background of the decision is [another] evidentiary source,
particularly if it reveals a series of official actions taken for invidious purposes. Id. at 267.
Finally, legislative or administrative history, including especially contemporary statements,
id. at 268, are a third factor. All are present here.
29
Date: New York, New York
May 9, 2014

Respectfully submitted,

/s/ J. Wells Dixon
J. Wells Dixon (Pursuant to LCvR 83.2(g))
Shayana D. Kadidal
Susan Hu (Pursuant to LCvR 83.2(g))
CENTER FOR CONSTITUTIONAL RIGHTS
Tel: (212) 614-6423
Fax: (212) 614-6499
skadidal@ccrjustice.org
shu@ccrjustice.org
Counsel for Djamel Ameziane

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EXHIBIT 1

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