IN THE UNITED STATES DISTRICT COURT FOR THE

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

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

Petitioners ground their requests for the extraordinary remedy of a temporary
restraining order on an equally extraordinary premise: that unprivileged enemy
belligerents detained overseas during a period of ongoing hostilities are entitled to pursue
claims against the military under the Religious Freedom Restoration Act, 42 U.S.C.
2000bb to 2000bb-4 (“RFRA”), despite controlling Circuit precedent to the contrary.
Even more extraordinarily, they do so having introduced no evidence that either of them
even desires to practice his religion, as pertinent here, to pray communally during
Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 1 of 28
Ramadan, or that the circumstances of their detention in any event burden that practice.
Absent this evidence they cannot make out a prima facie case under RFRA, which
requires that they show that their exercise of religious rights not only has been burdened,
but has been substantially burdened. 42 U.S.C. 2000bb-1; also, Gilardi v. U.S. Dept. of
Health and Human Services, 733 F.3d 1208, 1216 (D.C. Cir. 2013). Accordingly, for this
factual reason alone, Petitioner Hassan’s Emergency Application for a Temporary
Restraining Order Prohibiting Respondents From Depriving Petitioner of the Right to
Pray Communally During the Month of Ramadan (ECF No. 1049) (“Hassan Emergency
Application”) and the Petitioner Rabbani’s corresponding identically worded emergency
Application (ECF No. 334) should be denied.
Given Petitioners’ failure to present even a prima facie case, the Court need not
reach Petitioners’ main legal contention, that the recent decision in Hobby Lobby v.
Burwell, Nos. 13-354 & 13-356, 2014 WL 2921709 (U.S. J une 30, 2014), should be
interpreted to apply RFRA to nonresident aliens detained by the military overseas, such
as Petitioners. But even if the Court reaches that issue, Petitioners applications must fail,
as they cannot show the requisite likelihood of success on the merits, or any of the other
three factors necessary for preliminary injunctive relief, for three reasons.
First, Hobby Lobby did not overrule, or even address the issue decided by, the
current binding Circuit precedent, which holds that Guantanamo detainees, as nonresident
aliens outside the United States sovereign territory, are not protected “person[s]” within
the meaning and scope of RFRA. See Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir.
2009) (“Rasul II”). In Hobby Lobby, the Supreme Court held RFRA rights extend to for-
profit closely held corporations, reasoning in part that the Dictionary Act, 1 U.S.C. § 1
2

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 2 of 28
defines a “person” to include “corporations.” 2014 WL 291709 at * 14. That case did
not involve or resolve any other question regarding the meaning of “person” under
RFRA. As a result, that opinion cannot be read as extending RFRA rights to Petitioners:
simply put, the Supreme Court never addressed whether unprivileged enemy belligerents
detained overseas during a period of ongoing hostilities are “persons” to whom RFRA
applies. Because Hobby Lobby neither addressed nor overruled the holding of Rasul II,
it remains binding on this Court. See United States v. Torres, 115 F.3d 1033, 1036 (D.C.
Cir. 1997) (“[d]istrict judges . . . are obligated to follow controlling circuit precedent until
either . . . [the Court of Appeals], sitting en banc, or the Supreme Court, overrule it.”).
Second, even if unprivileged enemy belligerents could be construed as protected
“persons” under RFRA, that statute would still not apply to Petitioners because, as
applied to the leasehold of Guantanamo Bay, RFRA cannot overcome the judicial
presumption against extraterritorial application of statutes. See EEOC v. Arabian
American Oil Co., 499 U.S. 244, 248 (1991) (applying presumption against
extraterritorial application to Title VII).
And lastly, Petitioners cannot avail themselves of RFRA because Congress never
intended that statute to apply to enemy belligerents detained overseas. Indeed, absent
clear guidance from Congress, the judiciary should not imply a remedy under RFRA that
would necessarily interfere with military operations during a time of ongoing hostilities.
Rasul II, 563 F.3d at 559-60 (Brown, J . concurring); Lebron v. Rumsfeld, 670 F.3d 540,
558-559 (4
th
Cir. 2012). Here, the clear guidance from Congress, evidenced in
subsequently enacted statutes, is that RFRA does not apply to detainees such as
Petitioners.
3

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 3 of 28
In summary, because Petitioners have utterly failed to establish a prima facie case
under RFRA, the Court can deny Petitioners’ applications for injunctive relief without
reaching the other legal issues raised by Petitioners’ applications. But if the Court does
reach those other issues, it should still rule as a matter of law that Petitioners claim
cannot succeed on the merits. Accordingly, the Emergency Applications should be
denied.
BACKGROUND
Facts
In seeking to enjoin Respondents, Petitioners allege a paucity of facts to support
their Emergency Applications. In both of their applications, they merely incorporate (1)
the cites regarding the tradition of communal prayer during Ramadan taken from their
initial applications for a preliminary injunction
1
concerning various alleged aspects of
enteral feeding, and (2) allegations by another detainee that detainees who were being
enterally fed were not permitted to pray communally during Ramadan in 2013. Hassan
Emerg. Appl. at 2; Rabbani Emerg. Appl. at 2. Notably absent from Petitioners’ initial
applications or these emergency applications is any averment that Petitioners desire to
participate in communal Ramadan prayers. Nor, critically, have Petitioners otherwise
presented any particularized discussion of the circumstances of their confinement that
supposedly prevent them from participating in Ramadan communal prayers.
The record submitted by Respondents in opposition to Petitioners’ initial
applications for preliminary injunctions establishes, to the contrary, that, the United
States respects, and that J oint Task Force-Guantanamo works, in the absence of any
1
See Petr’s Appl. for Prelim. Inj (ECF No. 1001 in Civ Act. 04-1194) (Hassan Initial Application); Petr’s
Appl. for Prelim. Inj. (ECF No. 308 in Civ. Act. 05-1607) (Rabbani Initial Applicatoin).
4


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 4 of 28
unforeseen emergency or operational issues, to accommodate the religious and cultural
practices of the detainees, including during Ramadan. See, e.g, Resps’ Opp. To Pet’s
App. For Prelim Inj. (ECF No. 1020, Civ. Act. 04-1194), Ex 1. ¶ 34. For detainees who
require enteral feeding, J TF-GTMO modifies the hours of enteral feeding to
accommodate the hours of the Ramadan fast. Id. Accordingly, any necessary enteral
feedings are administered after sundown each day during Ramadan. Id. At the end of
Ramadan, detainees may participate in morning Eid prayer, and feast meals are offered to
all detainees, including those who are engaged in non-religious fasting. Id.
The Government also makes numerous religious accommodations in Petitioners’
living environment that allow for communal prayer. Petitioners are currently housed in
Camp 5, see, e.g., Rabbani Initial Appl.at 13, which is a general population, maximum
security, single-cell detention facility. See Review Of Department Compliance With
President’s Executive Order On Detainee Conditions Of Confinement at 11 (“Walsh
Report”) (attached as Exhibit 1).
2
All detainees in Camp 5 are offered a minimum of two
hours of outdoor recreation per day. Id. at 45, 47. No detainees are held in isolation. Id.;
see also Decl. of B. Vargo, ¶7 (attached as Exhibit 2).
3
All detainees housed in Camp 5
have multiple opportunities for daily interaction with other detainees and camp personnel.
Ex. 1, Walsh Report at 45, 47; Ex. 2, Vargo Decl. ¶ 7. Significantly here, detainees are
also permitted to speak to one another from their cells and participate in uninterrupted
group prayer (led by a block detainee prayer leader of their choosing) multiple times per
2
Due to the time constraints associated with these emergency applications, Respondents have attached the
2009 Walsh Report which has been submitted in previously in Guantanamo Bay litigation. While the
report is from 2009, the facts cited in this brief remain accurate today.

3
As with the Walsh report, due to the time constraints associated with this filing, Respondents have
attached the Vargo Declaration, which was previously submitted in Guantanamo Bay litigation. While the
declaration is from 2008, the facts recited in this brief remain accurate.
5


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 5 of 28
day. Ex. 1, Walsh Report at 25; Ex. 2, Vargo Decl. at ¶ 7. To facilitate this, the food tray
access doors of the prayer leaders are lowered (that is, opened) to allow call to prayer on
each cell block. Ex. 1, Walsh Report at 25.
4
Out of respect for the communal prayer
time, guard movement and activity is limited to only those actions required to maintain
security. Id. Additionally, visual signals are placed on each block signifying quiet time,
and each detainee cell includes an arrow pointing towards Mecca. Id. Further, the
Department of Defense advises that the guard force at Guantanamo is trained to
understand and safeguard the traditions observed during the Islamic Holy Month of
Ramadan, including by honoring prayer times as describe above.
Thus, the only competent evidence in the record in this matter is that the
Government takes substantial measures to accommodate Petitioners’ religious beliefs,
measures that effectively permit him to engage in communal Ramadan prayers, if he
wishes to do so.
Statute
RFRA provides that the “Government shall not substantially burden a person’s
exercise of religion” unless the government “demonstrates that application of the burden
to the person -- (1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §
2000bb-1. The Act applies to “all federal law” and the implementation of that law,
“whether statutory or otherwise,” adopted both before and after the passage of RFRA. Id.
4
Even when fully secured with feed tray slots closed, cells in Camps 5 allow easy communication between
adjacent cells, and other cells within a group of cells or cell block. Walsh Report at 45, 47. With a raised
voice an individual detainee located in a cell on one end of a block can readily and effectively
communicate with a detainee on the opposite end of the block. Id. This free communication is not
discouraged. Id.

6


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 6 of 28
§ 2000bb-3(a). The Act defines “government” as “a branch, department, agency,
instrumentality, and official (or other person acting under color of law) of the United
States, or a covered entity.” Id. § 2000bb-2(1). A “covered entity,” in turn, “means the
District of Columbia, the Commonwealth of Puerto Rico, and each territory and
possession of the United States.” Id. § 2000bb-2(2). RFRA also gives a “person” whose
religious exercise has been burdened a statutory right of action. 42 U.S.C. § 2000bb-1(c).
Case Law
In Hobby Lobby the Supreme Court considered whether RFRA applied to protect
the activities of closely held, for-profit corporations. 2014 WL 2921709 at *12. The
Court described RFRA as having been enacted in response to the Court’s decision in
Employment Division v. Smith, 494 U.S. 872 (1990), id. at *7-*8, and as having
expanded the protection of religious exercise beyond that required under the First
Amendment. Id. at *8.
5
Turning to the issue of whether RFRA applied with respect to
government requirements related to the activities of for-profit corporations, the Court
considered whether the term, “person,” as used in RFRA included the closely held
corporations before the Court. Id. at *14. The Court noted that “person” was not
defined in RFRA and, therefore, it referenced the Dictionary Act, 1 U.S.C. § 1, which
provides definitions of certain terms used in statutes, “unless the context indicates
otherwise.” Id. The Court explained that “unless there is something about the RFRA
context that ‘indicates otherwise,’” the inclusion of “corporations” within the Dictionary
Act definition of “person” meant the closely held corporations before the Court were
5
Smith determined that “neutral, generally applicable laws may be applied to religious practices even
when not supported by a compelling governmental interest.” See City of Boerne v. Flores, 521 U.S. 507,
514 (1997). This approach “repudiated the method of analyzing free-exercise claims” that had been used
for decades. Hobby Lobby, 2014 WL 2921709 at *7.
7


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 7 of 28
within the scope of RFRA. 2014 WL 2921709 at *14. Noting that prior cases had
entertained RFRA claims by nonprofit corporations, the Court found no reason that for-
profit, closely held corporations should not also be included within the meaning of
“person” and the scope of RFRA, especially since for-profits could, like nonprofits,
pursue religious or charitable aims over mere profit. Id. at *14-*15.
The Court also rejected an argument that RFRA did not protect for-profit
corporations because none of the Supreme Court’s pre-Smith decisions squarely held that
a for-profit corporation had free-exercise rights. The Court concluded that RFRA did not
“merely restore this Court’s pre-Smith decisions in ossified form” or allow a plaintiff to
raise a RFRA claim only if the plaintiff “fell within a category of plaintiffs one of whom
had brought a free-exercise claim that this Court entertained in the years before Smith.”
Id. at *7. The Court also noted that “the one pre-Smith case involving the free-exercise
rights of a for-profit corporation suggests, if anything, that for-profit corporations possess
such rights.” Id. at *17.
Finally, the Court made clear that it was only deciding the limited question before
it: whether closely held, for-profit corporations were protected under RFRA. In
addressing the Government’s argument that RFRA could not have been intended to apply
to for-profits because of practical difficulties in “ascertain[ing] the sincere ‘beliefs’ of a
corporation,” including those of large, publicly traded corporations, the Court explained
that the case did not involve publicly traded corporations, and, “[i]n any event, we have
no occasion in these cases to consider RFRA’s applicability to such companies.” Id. at
*18; see id. at *19 (“[W]e hold that a federal regulation’s restriction on the activities of a
for-profit closely held corporation must comply with RFRA.”).
8

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 8 of 28
As explained below, Hobby Lobby has not overruled Rasul II, and this Court is
not free to disregard that binding precedent. Further, Petitioners are not otherwise
entitled to the injunction they seek.
ARGUMENT

“Temporary restraining orders . . . are ‘extraordinary remed[ies] that should be
granted only when the party seeking the relief, by a clear showing, carries the burden of
persuasion.’” Lofton v. D.C., --- F.Supp.2d ---- , CV 13-1959 (RBW), 2013 WL 6710352
at *2 (D.D.C. Dec. 20, 2013) (quoting Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290, 297 (D.C.Cir.2006)). Because of the extraordinary nature of this relief,
courts should grant temporary restraining orders sparingly. Barton v. District of
Columbia, 131 F. Supp. 2d 236, 242 (D.D.C. 2001) (citing Moore v. Summers, 113 F.
Supp. 2d 5, 17 (D.D.C. 2000)).
6
A party seeking a temporary restraining order must
establish four factors: (1) that it is likely to succeed on the merits, (2) that it is likely to
suffer irreparable harm in the absence of the preliminary injunction, (3) that the balance
of equities tips in its favor, and (4) that the public interest favors the injunction. Winter v.
Natural Res. Defense Council, 555 U.S. 7, 20 (2008);
7
see also Aamer v. Obama, 742
F.3d 1023, 1038 (D.C. Cir. 2014).
8

6
Though the cases Respondents cite concerning the standards for issuing temporary restraining orders
address motions for preliminary injunctions, “[i]n determining whether to issue a temporary restraining
order, the Court must apply the same standard that is applied to preliminary injunctions.” Lofton, 2013 WL
6710352 at *2 (citing Hall v. Johnson, 599 F.Supp.2d 1, 3 n.2 (D.D.C.2009)).

7
In Winter, the Supreme Court held that a party must always demonstrate that irreparable harm is likely—
not just possible—before a preliminary injunction may issue. 555 U.S. at 22. By so holding, the Court
appears to have rejected the test then existing in the Ninth Circuit (and in this Circuit), by which the
requisite degree of likelihood of success and the degree of harm to the party seeking the injunction were
balanced. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843-844
(D.C. Cir. 1977) (if movant demonstrates that balance of equities tips sharply in its favor, it need only show
a possibility of success on the merits and vice versa). Rather, post-Winter, it appears that parties seeking
preliminary injunctions must now fully satisfy all four factors before a preliminary injunction may be
entered. The Court of Appeals, however, has specifically reserved the question of Winter’s effect on the
9


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 9 of 28
Petitioners seek a temporary injunction prohibiting Respondents from preventing
their participation in communal prayers during Ramadan. Petitioners argue that the
Supreme Court’s decision in Hobby Lobby compels rejection of the Court of Appeals’
decision in Rasul II that Guantanamo detainees such as Petitioners are not “persons”
within the scope of RFRA, thus entitling Petitioners to the injunctions they seek.
Petitioners are not entitled to the injunction, however. First, Petitioners cannot
demonstrate a likelihood of success because, even if RFRA applied to Petitioners, they
have not made a factual demonstration that their religious exercise has been
“substantially burdened” within the meaning of RFRA; Petitioners merely ask the Court
to assume that substantial burden exists. Petitioners also cannot demonstrate a likelihood
of success on their RFRA claims despite the Hobby Lobby decision because “[d]istrict
judges . . . are obligated to follow controlling circuit precedent until either . . . [the Court
of Appeals], sitting en banc, or the Supreme Court, overrule it.” United States v. Torres,
115 F.3d 1033, 1036 (D.C. Cir. 1997). Even if Petitioners were correct that Hobby Lobby
called into question some aspects of Rasul II, the case neither considered nor addressed
the issue decided in Rasul II—whether “person” as used in RFRA includes a nonresident
alien outside sovereign United States territory—and it cannot be said to have
“overrule[d]” Rasul II. Thus, this Court remains bound by Rasul II. Even beyond Rasul
Holiday Tours-balancing test, finding in all cases post-Winter that the plaintiff would not have prevailed
even under the balancing test. See, e.g., Sherley v. Sebelious, 644 F.3d 388, 393 (D.C. Cir. 2011).

8
The Aamer majority held that conditions-of-confinement challenges could be adjudicated in habeas cases,
explicitly rejecting the Government’s argument that section 7 of the Military Commissions Act, 28 U.S.C.
§ 2241(e)(2), jurisdictionally barred those challenges by Guantanamo Bay detainees. 742 F.3d at 1034-35.
Nevertheless, the Government objects to Petitioners’ motion as jurisdictionally barred under the MCA
despite Aamer’s holding, not to reargue here what has been foreclosed there, but to preserve that objection.


10


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 10 of 28
II, Petitioners also cannot demonstrate a likelihood of success on their claims because
RFRA does not apply extraterritorially to Guantanamo Bay and, in any event, Congress
did not intend the statute to apply to enemy forces detained by the military overseas. For
the same reasons, Petitioners cannot satisfy the remaining three factors they are required
to establish to obtain an injunction.
I. PETITIONERS HAVE FAILED TO ALLEGE A PRIMA FACIE CASE
UNDER RFRA

Under RFRA, the federal government “shall not substantially burden a person’s
exercise of religion” unless that burden is the least restrictive means to further a
compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial
burdens on the exercise of religion trigger the compelling interest requirement.”
Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added).
9
Petitioners
bear the burden to establish a prima facie claim under RFRA by proving three elements:
(1) a substantial burden imposed by the federal government on a (2) sincere (3) “exercise
of religion.” 42 U.S.C. 2000bb-1; see also, Gilardi v. U.S. Dept. of Health and Human
Services, 733 F.3d 1208, 1216 (D.C. Cir. 2013) (“‘[T]he Act requires a claimant to
“‘allege[] a substantial burden on [his] religious exercise.’”) (citing Kaemmerling v.
Lappin, 553 F.3d 669, 677 (D.C.Cir. 2008)); Sample v. Lappin, 424 F. Supp. 2d 187, 192
(D.D.C. 2006).
To establish a prima facie RFRA claim, “a plaintiff must present evidence
sufficient to allow a trier of fact rationally to find” that these three elements exist.
9
As initially drafted, RFRA prohibited the government from imposing any “burden” on free exercise.
Congress subsequently added the word “substantially” “to make it clear that the compelling interest
standards set forth in the act” would apply “only to Government actions [that] place a substantial burden on
the exercise of” religion. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen.
Kennedy); see id. (statement of Sen. Hatch).
11


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 11 of 28
Navajo Nation v. U.S. Forest Service, 535 F.3d 1058, 1068 (9th Cir. 2008). In the
present case, Petitioners have put forth no evidence to support their RFRA claims, most
notably nowhere in the record—not here, nor in the record submitted and subsequently
supplemented multiple times on their Initial Applications—do Petitioners even assert that
they desire to participate in communal prayer during Ramadan. Nor do Petitioners
demonstrate by reference to the specific circumstances of their detention that their
participation in communal Ramadan prayer has otherwise been substantially burdened.
This failure of proof is fatal to this application for a temporary restraining order.
In fact, the sum total of evidence put forward by Petitioners to support their
claims consists solely of a description of the importance of certain religious ceremonies
during Ramadan and various newspaper reports about Ramadan at Guantanamo Bay. See
Hassan Initial Appl. at 13-14; Rabbani Initial Appl. at 18-19. In addition, both
applications describe a conversation Petitioners’ counsel had with a detainee (not
Petitioners) in J uly 2013. Id. The detainee felt he was being “blackmailed” into eating
because if he did not eat, he would be put into isolation preventing him from attending
communal prayers during Ramadan in 2013. Id.
These few alleged facts cannot support a RFRA claim, let alone the extraordinary
remedy of a temporary restraining order. Simply put, the record contains no evidence
that Petitioners’ ability to exercise their religion is substantially burdened. For this
reason alone, the Court need not reach the remaining issues raised by Petitioners’
emergency applications.
12

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 12 of 28
II. PETITIONERS CANNOT DEMONSTRATE A LIKELIHOOD OF SUCCESS
ON THE MERITS BECAUSE THIS COURT REMAINS BOUND BY RASUL
II

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

Id.
10
In Aamer v. Obama, 742 F.3d 1023, 1043 (D.C. Cir. 2014), the Court of Appeals
further described the rationale for its holding in Rasul II: “Congress, we reasoned,
intended the term ‘person’ to ‘be read consistently with similar language in constitutional
provisions, as interpreted by the Supreme Court at the time Congress enacted RFRA’ in
1993, and held that decisions such as . . . Eisentrager . . . and . . . Verdugo-Urquidez . . .
10
The Court of Appeals was revisiting its analysis of the issue contained in Rasul v.Myers, 512 F.3d 644
(D.C. Cir. 2008) (Rasul I), which was vacated by the Supreme Court and remanded for further
consideration in light of Boumediene v. Bush, 553 U.S. 723 (2008). Rasul II, 563 F.3d at 528.
13


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would have led Congress to presume that the term did not encompass nonresident aliens.”
See Allaithi v. Rumsfeld, __ F.3d ___, 2014 WL 2575417 at *6 (D.C. Cir. J une 10, 2014).
Petitioners argue that Hobby Lobby establishes “indisputably that Petitioner[s]
enjoy RFRA protections” and “makes Rasul a dead letter.” E.g. Hassan Emerg. Appl. at
5, 7. As noted above, however, in Hobby Lobby the Supreme Court interpreted RFRA in
deciding an altogether different issue than whether alien detainees held outside the United
States are entitled to RFRA protections. The Court in Hobby Lobby considered only
whether RFRA applied to protect the activities of closely held, for-profit corporations.
2014 WL 2921709 at *12, *19. “District judges . . . are obligated to follow controlling
circuit precedent until either . . . [the Court of Appeals], sitting en banc, or the Supreme
Court, overrule it.” United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997).
Here, it cannot be said that Hobby Lobby has overruled Rasul II; indeed, Hobby Lobby
neither addressed nor considered, much less decided, the issue determined in Rasul II,
that is, whether nonresident aliens outside sovereign U.S. territory can be considered
“persons” under RFRA. “Questions . . . neither brought to the attention of the court nor
ruled upon, are not to be considered as having been so decided as to constitute
precedents.’” Cooper Indust., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004)
(quoting Webster v. Fall, 266 U.S. 507, 511 (1925)); cf. Whitacre v. Davey, 890 F.2d
1168, 1172 (D.C.Cir.1989) (“We cannot count as controlling a decision that never
touched upon the issue we confront.”); see also Miller v. Gammie, 335 F.3d 889, 900 (9
th

Cir. 2003) (before governing precedent can be disregarded, intervening higher court
decision must undercut prior precedent “in such a way that the cases are clearly
irreconcilable”). Petitioner reaches his conclusion that Rasul is a “dead letter” only by
14

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 14 of 28
selectively quoting Hobby Lobby, often out of context, attempting to twist the case to
make it speak to an issue that the Supreme Court had no occasion to consider and that is
of an entirely different character than whether a certain type of domestic corporation is
covered by the statute.
First, Petitioners argue that “[c]ontrary to the D.C. Circuit’s supposition in Rasul,
Congress did not intend for the scope of ‘persons’ protected by RFRA to be restricted by
‘then-existing Supreme Court precedents.’” E.g., Hassan Emerg. Appl. at 4 (quoting
Hobby Lobby, 2014 WL 2921709 at *16); see also id. at 5 (“Hobby Lobby wholly
undermines Rasul by holding that pre-Smith Supreme Court case law does not restrict the
scope of” persons protected by RFRA). Petitioners, however, mischaracterize Hobby
Lobby. As explained above, the Court in Hobby Lobby rejected the argument that any
protection extended under RFRA had to be grounded in pre-Smith First Amendment case
law. The case, however, did not hold, as Petitioners would have the Court believe, that
any pre-Smith case law on any topic had no relevance to the interpretation of RFRA.
11

The Court of Appeals’ approach in Rasul II, while referencing the intent of
Congress to “incorporate the standard governing free exercise claims” pre-Smith, 563
F.3d at 532, relied on broader principles governing the constitutional rights of non-
resident aliens. Rasul II explained that in enacting RFRA, “Congress legislated against
the background of precedent establishing that nonresident aliens were not were not
among the ‘person[s]’ protected by the Fifth Amendment, and were not among ‘the
people’ protected by the Fourth Amendment.” 563 F.3d at 533 (internal citations
omitted). Thus, Congress would have had to have intended that “person” in RFRA be
11
Indeed, the Court had no problem relying upon pre-Smith case law that supported application of RFRA to
for-profit corporations. See 2014 WL 2921709 at *17.

15


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 15 of 28
interpreted differently than how the term is construed for purposes of constitutional law
in rights-related contexts. The Court of Appeals in Rasul II rejected such a textual
disconnect.
12
See id. While the Supreme Court in Hobby Lobby rejected the proposition
that protections under RFRA are limited to those specifically addressed in specific and
identical pre-Smith First Amendment case law, it did not address and had no occasion to
address the specific contextual factors relied upon by the Court of Appeals in Rasul II to
conclude that “person” under RFRA did not include nonresident aliens detained outside
the United States.
Second, Petitioners note that Hobby Lobby relied upon the definition of “person”
in the Dictionary Act in interpreting RFRA. E.g. Rabbani Emerg. Appl. at 5. From this,
Petitioners argue that inclusion of the term “individuals” within the Dictionary Act’s
definition of “person” necessarily means that “person” includes all “flesh-and-blood
human beings,” including noncitizens, regardless of circumstance or whether they are in
or resident in the United States. See id. (“that the detainees are at Guantanamo Bay
changes nothing”). That as Hobby Lobby observed, the Dictionary Act itself provides
that its definitions do not apply if “the context indicates otherwise.” 2014 WL 2921709
at *14. And Rasul II relied on such contextual factors in concluding that the term
“person” does not include non-resident aliens. Hobby Lobby did not consider or address
these matters, nor did it hold that the Dictionary Act’s definition of person applies
12
Notably, no such issue presented itself in Hobby Lobby given that corporations have both Fifth and
Fourth Amendment rights. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978)
(listing cases).
16


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without qualification to all RFRA claims.
13
Hobby Lobby only concerned the application
of RFRA to closely held for-profit corporations.
Further, even in addressing the application of RFRA to for-profit corporations, the
Supreme Court limited its holding to closely held for-profits, explicitly declining to reach
the issue of coverage of publicly traded, for-profit corporations. See 2014 WL 2921709
at *18. The Court simply saved for another day the issue of whether considerations of
context or other factors would dictate that publicly traded for-profit corporations be
included, or not, within RFRA’s coverage. See id. There would have been no reason for
the Court to so limit the reach of its decision had the Court been operating under the
simplistic view advocated by Petitioners, that is, that any “individual” or “corporation”
would be a “person” under RFRA by virtue of the language of the Dictionary Act,
regardless of any other consideration. The Supreme Court simply did not go that far with
respect to “corporations.” Likewise here, this Court cannot go so far as to conclude that
“person” under RFRA now includes any individual, even if a nonresident, noncitizen held
in military detention outside the United States.
At bottom, the Court in Hobby Lobby did not consider the definition of “person”
in RFRA as applied to nonresident aliens held by the U.S. military in detention overseas.
It did not address or consider Rasul II’s holding that, for purposes of deciding whether to
extend RFRA protections to such individuals, Congress had legislated against a backdrop
of decisions “establishing that nonresident aliens were not were not among the
13
Accordingly, Petitioners can get no mileage from the Supreme Court’s comment, made in the context of
addressing the issue of whether RFRA attempted to “ossify” pre-Smith case law, asking whether a
“resident noncitizen” should be excluded from RFRA protection simply because there was no pre-Smith
case entertaining free-exercise claims by a resident noncitizen. See 2014 WL 2921709 at *17; E.g. Rabbani
Emerg. Appl. at 5. If anything, the Court’s limitation of its rhetorical example to a U.S. “resident” alien
supports that the Court eschewed delving into issues related to RFRA coverage for noncitizens who are not
resident in the United States.

17


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‘person[s]’ protected by the Fifth Amendment, and were not among ‘the people’
protected by the Fourth Amendment,” 563 F.3d at 533.
At a minimum, it certainly cannot be concluded that Hobby Lobby definitely
overruled Rasul II or now requires this Court to disregard that Court of Appeals
precedent. See Torres, 115 F.3d at 1036; see also Cooper Indust, 543 U.S. at 170. This
Court need not definitively resolve the precise impact of Hobby Lobby on Rasul II; the
Court need only determine whether Hobby Lobby clearly overruled Rasul II such that the
Court is free to disregard it. See Torres, 115 F.3d at 1036. Such a conclusion cannot be
reached here. This Court should continue to adhere to Rasul II, and under Rasul II
Petitioners cannot succeed on the merits of their RFRA claim.
III. PETITIONERS CANNOT DEMONSTRATE A LIKELIHOOD OF
SUCCESS ON THE MERITS BECAUSE RFRA DOES NOT APPLY
EXTRATERRITORIALLY TO GUANTANAMO BAY

In Rasul II the D.C. Circuit held that Guantanamo Bay detainees were not
among the category of protected persons under RFRA, reasoning that the detainees were
non-resident “aliens located outside sovereign United States territory at the time their
alleged RFRA claim arose.” 512 F.3d 644, 672 (2008); see Allaithi, 2014 WL 2575417
at * 6 (affirming prior holding). Consequently, the detainees’ extraterritorial location
provides a separate, dispositive basis to deny the requested temporary restraining order.
Simply put, Congress did not extend RFRA rights to the United States leasehold at
18

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 18 of 28
Guantanamo Bay.
14
So even if the detainees would now qualify as “persons” under
RFRA, they still may not invoke that statute’s protections.
15

It is well settled that courts presume Congress does not intend its legislation to
apply extraterritorially unless it has clearly manifested its intent to do so. EEOC v.
Arabian American Oil Co., 499 U.S. 244, 248 (1991). This judicial presumption against
extraterritorial application of statutes recognizes the “commonsense notion” that
Congress generally legislates with domestic concerns in mind, and not to dictate the
rights of another country’s citizens abroad or to otherwise interfere with another
country’s sovereignty. Smith v. United States, 507 U.S. 197, 205 n.5 (1993).
16
Of note,
this presumption is not defeated just because a statute may address some types of
extraterritorial application; the question of the breadth of Congress’ desired overseas
reach for the statute remains. Mircosoft Corp., 550 U.S. at 456. That Congress itself has
disavowed Guantanamo Bay as sovereign U.S. territory, Detainee Treatment Act §
14
See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, Art. III, T.S. No. 418
(noting that Cuba retains “ultimate sovereignty” over the territory leased to the United States at
Guantanamo Bay, though the United States may exercise “complete jurisdiction and control”).

15
RFRA’s lack of extraterritorial application to Guantanamo Bay concededly affects not just the
unprivileged enemy belligerents detained there, but also the citizens and resident aliens who live and work
there. The military members and civilians residing at Guantanamo Bay, however, have First Amendment
rights by virtue of their status, rights they brought with them to the Naval Station. See Reid v. Covert, 354
U.S. 1, 5-6 (1957) (applying Fifth Amendment rights to relatives accompanying military members assigned
to United States bases overseas).

16
Applying this presumption, the Supreme Court has routinely found that Congress did not intend for
various statutes to apply overseas. See Morrison v. Nat’l Australia Bank Ltd., 130 S.Ct. 2869 (2010)
(United States securities laws do not apply to transactions on foreign exchanges); Micorosoft Corp. v.
AT&T Corp, 550 U.S. 437 (2007) (United States patent laws do not generally apply to overseas
infringements); Smith v. United States, 507 U.S. 197 (1993) (Federal Tort Claims Act (FTCA) does not
apply to injuries occurring in Antarctica); EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) (Title
VII does not apply to United States citizen employed by an United States company overseas); United States
v. Spelar, 338 U.S. 217 (1949) (FTCA does not apply to injury on leased overseas military base); Foley
Bros. v. Filardo, 336 U.S. 281 (1949) (Eight Hour Wage Law does not apply to work performed for the
United States in the Middle East). But see Rasul v. Bush, 542 U.S. 466 (2004) (federal habeas statute
applies to unprivileged enemy belligerents detained at Guantanamo Bay); Vermilya-Brown Co. v. Connell,
335 U.S. 377 (1948) (Fair Labor Standards Act applies to leased overseas naval base).

19


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1005(g), 10 U.S.C. § 801 note,
17
—and the Supreme Court has acknowledged this lack of
formal sovereignty, Boumediene, 553 U.S. at 753—confirms the presumption should
apply Guantanamo Bay.
Here, Congress having failed to clearly state that it intended RFRA to apply to
leaseholds like Guantanamo Bay, the statute cannot overcome the presumption against
extraterritorial application. RFRA provides a cause of action to “persons whose religious
exercise is substantially burdened by government.” 42 U.S.C. § 2000bb(b)(2). It defines
“government” as “a branch, department, agency, instrumentality, and official (or other
person acting under color of law) of the United States, or of a covered entity.” 42 U.S.C.
§ 2000bb-2(1). A “covered entity,” in turn, means the District of Columbia, the
Commonwealth of Puerto Rico, and each territory and possession of the United States.”
42 U.S.C. § 2000bb-2(2).
As framed by these definitions, the issue is whether RFRA’s reference to
“territories and possessions” is a clear statement that Congress intended to apply the
statute to anyone at Guantanamo Bay.
18
Numerous statutes use phrases such as
“territories and possessions,” see Vermilya-Brown, 335 U.S. at 387 (listing statutes), and
17
Section 1005(g) provides:

(g) United States defined.--For purposes of this section, the term ‘United States’, when used in a
geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act [8 U.S.C.A. §
1101(a)(38)] and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

18
Under the presumption against extraterritorial application, the issue is where in the world does RFRA
apply to bar a branch, department, agency, instrumentality, or official of the United States or of a covered
entity from substantially burdening the free exercise of religion. That the members of the J oint Task
Force—Guantanamo at Guantanamo Bay may be officials of the United States does not answer this
question. Rather, the status of those officials is a necessary but not sufficient condition to raise the issue of
the applicability of RFRA. For even given their status as officials of the United States, the question
remains whether RFRA applies to their actions at Guantanamo Bay. Put another way, the actions of the
United States in Guantanamo are not subject to RFRA unless RFRA applies extraterritorially to
Guantanamo.

20


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the application of those phrases depends upon the context and purpose of the statute. As
the Supreme Court stated in Vermilya-Brown, “[t]he word ‘possession’ is not a word of
art, descriptive of a recognized geographical or governmental entity.” Id. at 386. What
entities fall within the term “territory and possession” thus varies from statute to statute,
depending upon the “motive and purpose” of the statute: “our duty as a Court is to
construe the word ‘possession’ as our judgment instructs us the lawmakers, within
constitutional limits, would have done had they acted at the time of the legislation with
the present situation in mind.” Id. at 388.
19

In many contexts, the phrase “territories and possessions” has been construed to
encompass only areas in which the United States exercises sovereign authority. See, e.g,,
People of Saipan v. Department of the Interior, 502 F.2d 90, 95 (9
th
Cir. 1974) (holding
that the Trust Territory of the Pacific Islands “is not a territory or possession, because
technically the United States is a trustee rather than a sovereign”); District of Columbia
Nat’l Bank v. District of Columbia, 348 F.2d 808, 812 (D.C. Cir. 1965) (recognizing that
“a territory or possession may not tax the instrumentality of its sovereign without the
latter’s consent”); see also Presidential Proclamation No. 5928, 54 Fed. Reg. 777 (1988)
19
As set out above, Guantanamo Bay is not a “territory or possession” as that term is used in RFRA.
Although the Supreme Court held in Vermilya-Brown that “possession” as used in the Fair Labor Standards
Act (FLSA) included a leased military base on Bermuda, it did so because Congress, rather than using the
word “possession” to refer to a type of government, used it to define the type of commerce subject to that
statute. 335 U.S. at 379 (noting the statute explicitly applied to commerce “among the several States or
from any State to any place outside of thereof,” with “State” defined to include “any Territory or
possession of the United States”). The narrowness of this holding was subsequently confirmed by two
other opinions that came down shortly thereafter, one in the same term and the other in the next, opinions
that refused to impute extraterritorial intent to either the FTCA or the Eight Hour Law (which governed
working hours and overtime for individuals working on contracts for the United States). See Foley Bros. v.
Filardo, 336 U.S. 281(1948) (refusing to apply the Eight Hour Wage law to work performed overseas for
the United States by a United States citizen working for a United States company, despite statutory
language applying the Law to “[e]very contract made to which the United States . . . is a party”); United
States v. Spelar, 338 U.S. 217 (1949) (holding that the Federal Tort Claims Act did not allow a cause of
action for an injury to United States citizen on a leased overseas military base because the injury fell within
the statute’s exception for “any claim arising in a foreign country”).
21


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 21 of 28
(extending “the territorial sea of the United States of America, the Commonwealth of
Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Mariana Islands, and any other territory or possession
over which the United States exercises sovereignty”).
Congress enacted RFRA against the general background of these cases, and
RFRA’s language suggests that this narrower definition is what Congress had in mind. In
the statute as originally drafted, “government” was defined as including agencies and
officials of the United States, a State, or a subdivision of a State. The statute then
provided that “the term ‘State’ includes the District of Columbia, the Commonwealth of
Puerto Rico, and each territory and possession of the United States.” 42 U.S.C. §
2000bb-2(2) (1993).
20
In this context, “territory and possession” appears in a list of
sovereign governments bound by RFRA. That suggests that the phrase refers to the
traditional definition of territories and possessions as areas over which the United States
is sovereign. In any event, the phrase is not a clear statement sufficient to overcome the
presumption against extraterritorial application.
21

Consequently, RFRA does not apply to Guantanamo Bay. Although the Supreme
Court in Rasul v. Bush, 542 U.S. 466, 481 (2004), held that jurisdiction for purposes of
20
After the Supreme Court invalidated RFRA as applied to the states in 1997, see Hobby Lobby, 2014 WL
2921709 at *7-*8, Congress amended RFRA to delete reference to states, and instead included the
“territory and possession” language in the definition of “covered entities.” There is no indication, however,
that Congress intended a substantive change by doing so.

21
Legislative history provides no assistance in resolving the question of Congressional intent to apply
RFRA to Guantanamo Bay. Only one statement is possibly relevant, that of Senator Thurmond made
during consideration of the Religious Land Use and Institutionalized Persons Act, which included some
minor amendments to RFRA. See 146 Cong. Rec. S7791, 7993 (Sept. 5, 2000) (statement of Sen.
Thurmond). In these off-the-cuff remarks, the Senator merely related unconfirmed anecdotes concerning
RFRA’s possible impact on the military overseas., This solitary, post-enactment statement by one Senator
whose objection did not carry the day simply does not support an implication that Congress intended RFRA
to constrain the Executive worldwide, let alone at the Guantanamo Bay detention facility. See Reno v.
Bossier Parish School Bd., 520 U.S. 471, 484 (1997).

22


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the habeas statute extended to Guantanamo Bay, the Court did not find that Guantanamo
itself was a federal territory. Also, while the Court specifically discussed the historical
reach of the writ of habeas corpus to “so-called ‘exempt jurisdictions,’ where ordinary
writs do not run, and all other dominions under the sovereign’s control,” id. at 482,
RFRA does not have a similarly long, historical reach.
22

In summary, Congress did not intend to extend RFRA to Guantanamo Bay.
Acting against a backdrop of cases construing the term “territories or possessions” to be
limited to those over which the United States exercises sovereignty, Congress had only
“domestic concerns in mind” when it enacted RFRA. As both the Supreme Court and
Congress agree that formal sovereignty is lacking here—see Boumediene, 553 U.S.
at753; Detainee Treatment Act of 2005 § 1005(g)—the presumption against
extraterritorial applications of statutes applies here with full force. Consequently, the
Court should find that RFRA does not apply to the actions of the military officials
charged with detaining the unprivileged enemy belligerents at Guantanamo Bay.
Regardless, however, it is even more clear that RFRA should not be construed to
apply to a context that Congress clearly did not envision – the detention of unprivileged
enemy belligerents by the military overseas during ongoing hostilities. Military
operations during wartime have traditionally been left to the discretion of the Executive.
Courts are reluctant to interpret statutes in ways that allow litigants to interfere with the
22
Nor does Boumediene counsel a different result. There, the Supreme Court was concerned solely with
the separation-of-powers issues embodied in the Suspension Clause, see 553 U.S. at 765-766, and not with
the extraterritorial reach, or not, of a statute. Further, while the Court held that Guantanamo detainees have
a procedural right under the Suspension Clause to file a habeas petition, and thus receive judicial review of
“both the cause for detention and the Executive’s power to detain,” id. at 783, the Court emphasized that
its decision “does not address the content of the law that governs petitioners’ detention,” id. at 798. Thus,
the Court did not purport to address the applicability of a statute, such as RFRA, to detention, or conditions
of confinement, at Guantanamo.

23


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 23 of 28
mission of the nation's military, preferring that Congress explicitly authorize suits that
implicate the command decisions of those charged with national defense. Lebron v.
Rumsfeld, 670 F.3d 540, 558-559 (4
th
Cir. 2012). Thus, “unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to intrude upon the authority
of the Executive in military and national security affairs.” Department of Navy v. Egan,
484 U.S. 518, 530 (1988); see, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953);
Burns v. Wilson, 346 U.S. 137, 142, 144 (1953); Gilligan v. Morgan, 413 U.S. 1, 10
(1973).
In RFRA, Congress did not “specifically provid[e]” for the statute’s extension to
noncitizen enemy beligerents detained by the United States military overseas. Even if the
Court were to conclude that there is no explicit textual basis in the statute to prohibit suits
brought by nonresident aliens held at Guantánamo, courts may go beyond the text in
certain exceptional cases where “the literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.” Rasul II, 563 F.3d at 535
(Brown, J ., concurring) (citing Nat'l Pub. Radio, Inc. v. FCC, 254 F.3d 226, 230 (D.C.
Cir.2001)).
23
Here, literal application of RFRA’s language to detainees held at
Guantánamo presents just such an exceptional situation. See id.
As J udge Brown pointed out in her concurring opinion, Congress, in drafting
RFRA, “was not focused on how to accommodate the important values of religious
toleration in the military detention setting.” Rasul II at 535-36. The Fourth Circuit also
has recognized that there are strong reasons to believe that RFRA does not apply to
23
To justify departure from the literal application of a statute, a party must “show that, as a matter of
historical fact, Congress did not mean what it appears to have said, or that as a matter of logic and statutory
structure, it almost surely could not have meant it.” Nat’l Public Radio, 254 F.3d at 230 (internal
quotations omitted).
24


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 24 of 28
unprivileged enemy belligerents detained by the military. Lebron, 670 F.3d at 557. In
Lebron, a former detained enemy belligerent, who was a U.S. citizen detained in the
United States, alleged that his treatment during detention violated, among other things,
his federal statutory rights under RFRA, and he sought a damages remedy against U.S.
officials. In rejecting that the former detainee had a clearly established RFRA claim, the
court said that “to permit recovery in this case would be at odds with the positions of the
two coordinate branches to whom our Constitution has entrusted primary responsibility
for the conduct of military affairs.” Id. The court emphasized that when Congress
wishes to legislate with respect to the military, it does so with precision and it does so
both unmistakably and typically in those sections of the U.S. Code that apply to the
military. Id at 558-59. Citing J udge Brown’s concurrence in Rasul II, the court likewise
determined that it had no indication that Congress even considered the prospect of RFRA
actions brought by unprivileged enemy belligerents with anything like the care that it has
customarily devoted to matters of such highly sensitive military importance. Id. at 559-
60.
And, in fact, when Congress did legislate with regard to actions brought by enemy
belligerents, it made its intention clear that it did not intend RFRA to apply in the military
overseas detention context, for Congress has attempted, in no uncertain terms, to prevent
the detainees from asserting conditions-of-confinement claims in the courts.
In the Military Commissions Act of 2006 (MCA), Pub. L. No. 109–366, 120 Stat.
2600 (same) (codified in 28 U.S.C. § 2241(e)), for example, Congress made “crystal
clear” its intent to eliminate all forms of judicial review for Guantanamo detainees,
including in pending cases, except for the narrow review provisions provided for in the
25

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 25 of 28
Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739 (DTA). See
Bismullah v. Gates, 551 F.3d 1068, 1073 (D.C. Cir. 2009) (stating that “Congress’s
overriding goal throughout was to limit the judicial review available to detainees”). The
MCA expansively barred courts from considering both “an application for a writ of
habeas corpus” and “any other action against the United States or its agents relating to
any aspect of the detention, transfer, treatment, trial, or conditions of confinement.” See
28 U.S.C. 2241(e); see 152 Cong. Rec. S10403 (Sept. 28, 2006) (Sen. Cornyn) (MCA
“will substitute the blizzard of litigation instigated by Rasul v. Bush [542 U.S. 466
(2006)]” “with narrowly limited procedural review of the basis for detention”). Thus,
when Congress has spoken regarding conditions of confinement claims by military
detainees such as Petitioners held overseas, it has been to prevent such claims. See
Aamer, 742 F.3d at 1030 (stating that “Congress undoubtedly intended to preclude
federal courts from exercising jurisdiction over any claims brought by Guantanamo Bay
detainees”) (emphasis in original); Bismullah, 551 F.3d at 1073 (“The Congress’s
primary objective . . . was to limit the avenues for and scope of judicial review available
to detainees.”). Literal application of RFRA’s language to detainees held at Guantánamo,
thus, would “produce a result demonstrably at odds with the intentions of its drafters.”
Aamer is not to the contrary. Aamer merely analyzed the “current scope of
statutory habeas” to reach the conclusion that “one in custody may challenge the
conditions of his confinement in a petition for habeas corpus.” See Aamer, 742 F.3d at
1032. Aamer said nothing about the substantive law that would govern such claims, nor
did it purport to resolve what statutory rights, if any, Guantanamo Bay detainees would
be able to assert in such proceedings. Cf. at 1039 (“assum[ing] without deciding that the
26

Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 26 of 28
constitutional right to be free from unwanted medical treatment extends to nonresident
aliens detained at Guantanamo”).
24
For the reasons explained above, Congress could not
have intended that RFRA apply to permit claims by individuals such as Petitioners,
detained by the military overseas during ongoing hostilities, and Petitioners cannot look
to that statute to support their claims for injunctive relief.
CONCLUSION
Having not even averred that they desire to pray communally during Ramadan or
established that their religious exercise is substantially burdened at Guantanamo,
Petitioners have failed to even allege a prima facie case that his conditions of
confinement violate RFRA. For this fundamental reason alone, they are not entitled to
the extraordinary remedy of a temporary restraining order. Moreover, they are also not
entitled to such relief because Hobby Lobby does not require that this Court disregard the
binding precedent of this Circuit that unprivileged enemy belligerents detained at
Guantanamo Bay may not invoke RFRA. Further, Petitioners also may not appeal to
RFRA because it does not apply extraterritorially or to alien enemy belligerents detained
at Guantanamo. There being no basis for the requested relief, and for all the reasons
stated in Respondents’ previous opposition briefs to Petitioners’ initial applications,
Petitioners’ Emergency Applications should be denied.

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

27


Case 1:04-cv-01194-UNA Document 1051 Filed 07/08/14 Page 27 of 28
8 J uly 2014 Respectfully submitted,

STUART F. DELERY
Assistant Attorney General

J OSEPH H. HUNT
Director, Federal Programs Branch

TERRY M. HENRY
Assistant Branch Director

/s/ Ronald J . Wiltsie
RONALD J . WILTSIE (D.C Bar No. 431562)
ROBERT J . PRINCE
TIMOTHY B. WALTHALL
J AMES J . SCHWARTZ (D.C. Bar No. 468625)
Trial Attorneys
United States Department of J ustice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, DC 20530
Tel: (202) 307-1401
ronald.wiltsie@usdoj.gov


28

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
















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












Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 1 of 6
2
Table of Contents
Table of Contents............................................................................................................................ 2
List of Appendices .......................................................................................................................... 3
Executive Summary...................................................................................................................... 4
Introduction................................................................................................................................... 6
Methodology.................................................................................................................................. 7
Authorities................................................................................................................................... 8
Guantánamo Detention Policy and Practice .............................................................................. 8
Input from External Sources ....................................................................................................... 9
Orientation to Camp Operations .............................................................................................. 10
Joint Medical Group ................................................................................................................. 13
Joint Intelligence Group............................................................................................................ 15
Findings........................................................................................................................................ 16
Shelter ....................................................................................................................................... 17
Hygiene ..................................................................................................................................... 20
Clothing and Bedding ............................................................................................................... 21
Food and Water ........................................................................................................................ 23
Religious Practice..................................................................................................................... 25
Recreation................................................................................................................................. 27
Sleep.......................................................................................................................................... 29
Detainee Discipline System....................................................................................................... 30
Detainee Compliance with Camp Rules and Vetting Criteria.................................................. 32
Intellectual Stimulation............................................................................................................. 34
Mail ........................................................................................................................................... 36
Protection from Violence .......................................................................................................... 38
Protection from Violence – Use of Force ................................................................................. 40
Protection from Violence—Forced Cell Extractions................................................................ 42
Protection from Violence—Shackling....................................................................................... 44
Protection from Sensory Deprivation—Solitary Confinement ................................................. 45
Protection from Sensory Deprivation—Human-to-Human Contact......................................... 47
Protection from Humiliation..................................................................................................... 49
Healthcare Services—Quality of Care and Access................................................................... 51
Medical/Dental Confidentiality of Medical Records and Information..................................... 54
Medical Ethics—Medical Treatment of Hunger Strikers.......................................................... 56
Healthcare Personnel Management—Behavioral Science Consultants (BSC) ........................ 59
Interrogation............................................................................................................................. 61
Outside Access to Detainees ..................................................................................................... 64
Attorney Access to Detainee-Clients......................................................................................... 66
Detainees Ordered or Approved for Release............................................................................ 68
Repatriation/Transfer ............................................................................................................... 70
Conclusions.................................................................................................................................. 72
Glossary ....................................................................................................................................... 75
Bibliography................................................................................................................................ 78

Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 2 of 6
11
The camps are numbered in the order in which they opened. However, they can be categorized
as follows: Communal Living Camp – Camp 4; Maximum Security Camps - Camps 1 through
3, 5 (including Camp 5 Echo Block), 6, and 7; Pre-Release-Transfer –Camp Iguana; and, Limited
Use – Camp Echo. The following describe each camp.

Communal Living Camp

Camp 4, first occupied in February 2003, offers communal living, numerous recreation facilities,
education and intellectual stimulation programs, and houses detainees considered the most
compliant with camp rules. Unlike other camps, Camp 4 offers communal living in open-bay
barracks with open access to fresh air in outdoor recreation and communal facilities throughout
the day. It includes additional access to large recreation areas equipped with a basketball court,
volleyball court, and soccer facility, during a specified four-hour period each day. Camp 4 has a
media center equipped with satellite television, bench seating, and a classroom used to teach
literacy and art.

Maximum Security

Camp 1, which became operational in April 2002, is an open-air facility with approximately 200
steel mesh single cells. Cells in this style camp offer the least unencumbered square feet of
living space. Cells face each other, arranged in rows, with an equal number of cells on each side
of the block. Camp 1 includes an outdoor exercise area for each block, equipped with a treadmill
or elliptical machine.

Camp 2 and Camp 3 are adjoining facilities. The cells are similar to Camp 1. Camps 2 and 3
became operational in October 2002, with a current capacity of about 400 detainees. Each Camp
has 10 adjoining blocks of 24 to 48 cells each, and offer access to sunlit spaces throughout the
day with the same sort of outdoor recreation facilities as Camp 1 for each block. Two cells in
Camp 3 are now available for use as a movie room for detainees.

Camp 5, a maximum-security facility built in April 2004, is a climate-controlled single cell
facility with a capacity to hold 100 detainees. All occupied cells have a clear window to permit
entry of sunlight. The facility resembles a hub and spoke design. The hub consists of a centrally
located automated control center that enables staff to control all operations throughout the
building, including ingress/egress, opening and closing of doors and other operations. The
spokes consist of four, 2-story wings, each with two rows of adjoining cells that face each other,
and one additional wing for administrative offices. Three outdoor recreation facilities are
accessible from adjacent wings. The building has a climate controlled meeting room for legal
representation and separate movie rooms on each tier for detainee use at specified periods
throughout the day.

Camp 5 Echo (part of Camp 5), first occupied by detainees in April 2008, is an open air facility
with 24 individual adjoining steel mesh cells arranged in two parallel and equal rows – similar to
Camp 1. The recreation facilities are similar to those found in Camps 1, 2, and 3, equipped with
treadmills, elliptical machines and soccer balls; enabling a total of four detainees to participate in
recreation simultaneously in four adjacent yards.
Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 3 of 6
25
Religious Practice

A. Legal/Policy Authority. Under DoDD 2310.01E, detainees are to be provided the
opportunity for free exercise of their religion, consistent with requirements of detention.
Additional reference material may be found in GPW (Art. 34), GCC (Art. 93), and AR 190-8 (6-
7), which provide for complete latitude in the exercise of religious duties, including attendance at
services, if they comply with the prescribed disciplinary routine. In addition, ministers of
religion who are detainees should be allowed to minister freely to members of the community.

B. Detainee/NGO Input. Use a Muslim Chaplain (when available) to train the guard force on
how to be culturally and religiously sensitive to the detainees, including maintaining silence
during prayer time. Respect religious items and books and provide regular prayer times.
Provide for group prayer at all camps.

C. Practice/Implementation. All detainees are provided one Koran in the language of their
choice, in addition to an Arabic Koran and TafSeer. All detainees are provided prayer beads,
cap, rug, and current prayer schedule.
25
These items are retained by all detainees regardless of
disciplinary status, unless deliberately used for self-harm or as a weapon. Guards and staff have
received specialized cultural and religious sensitivity training. Cultural and religious
considerations are also taken into account when assigning detainees to housing areas. Guards
observe silence during all prayer times.

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

The team observed that the Koran was respected at all times. Guards followed applicable
guidance and did not touch the Koran, unless specifically authorized to do so by CJDG. We
observed that the guards also took special precautions to respect the Koran when detainees would
hold it and refuse to put it down before entry of an FCE team.

Due to cultural sensitivities, modified frisk searching procedures are in place that respect the
detainee’s groin area, and guards are not allowed to conduct frisk searches of this area. Guards
are limited to grasping the waistband of detainees’ trousers, and shaking the pants.

D. Team Analysis. All detainees are given wide latitude in the exercise of their religious beliefs
and they are able to retain religious items at all times. Concerns raised in the early years of
detention operations at Guantánamo highlighted the importance of respect for the religious

25
See Appendix 12, Figures 7-2, 7-5 through 7-9, and 7-12.
Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 4 of 6
45
Protection from Sensory Deprivation—Solitary Confinement

A. Legal/Policy Authority. Common Article 3. Under DoDD 2310.01E, detainees are to be
treated humanely and respected as human beings. Sensory deprivation is not authorized.
Additional reference material may be found in GPW (Art. 13, 17, 21, 22), GCC (Art. 27. 30-33,
84), and AR 190-8 (1-5, 6-1), which provides for individual or collective accommodations; and,
where possible, to group detainees by nationality, language, or custom. Except for disciplinary
or penal sanctions, detainees may not be held in “close confinement.”

B. Detainee/NGO Input. Keep solitary confinement to a minimum. Solitary confinement must
only be used as a deterrent against bad behavior and nothing else. Limit the amount of time in
solitary confinement. The mental health of detainees in solitary confinement should be checked
regularly by physicians. Stop holding detainees in Camps 5 and 6 in solitary confinement.

C. Practice/Implementation. Detainees in Guantánamo are never placed in solitary confinement
or isolation. All detention spaces and cells have been built to support a program that enhances
the safety and security of both detainees and staff members alike. All detention cells, except in
Camp 7, permit easy communication and interaction with other detainees in adjoining cells. In
addition, all detainees are allowed times outside of their cells daily for communal recreation with
other detainees in open air adjoining recreation spaces. Compliant detainees are offered no less
than four hours recreation daily, and even noncompliant detainees in a discipline status are
offered two hours recreation daily. Discipline is administered through a process of reduced
levels of privileges, and not by use of isolation or solitary confinement. Detainees in Camp 7 are
housed in cells that do not permit communication with adjacent cells. Detainees in Camp 7 also
do not have the same level of socialization as detainees in other camps in Guantánamo.
37
To
mitigate the potential adverse effects of less socialization, Camp 7 detainees are offered the
opportunity to socialize daily through four hours of recreation, and weekly through two hours of
socialization management. This is a program that seeks to maintain detainees’ mental well-being
through intellectual stimulation.

D. Team Analysis. Solitary confinement is normally defined as confinement of a detainee in
isolation from other detainees, and is not a procedure authorized for or applied to any detainees.
Contrary to many criticisms, the facility designs of Camps 5 and 6 exceed those typical of
medium and maximum-security detention facilities throughout the United States in terms of
design, cell configuration, cell space, and ease of communications between cells. It is worth
noting that JTF-Guantánamo handles detainees who are a threat to themselves, other detainees,
or staff in the same way that detention facilities across the United States do so, through the use of
single cells in maximum-security facilities. In fact, these cells, and many of the practices of JTF-
Guantánamo in its maximum-security facilities, are utilized to mitigate threats posed by
detainees to themselves, other detainees, and staff. JTF-Guantánamo has medium security
facilities (Camp 4 and soon certain areas of Camp 6) available to detainees who follow camp
rules and refrain from acts that could threaten themselves, other detainees, and staff. As
described elsewhere in the report, JTF-Guantánamo has a vetting program to move detainees
within and between camps, depending upon their behavior and threat level. Detainees are well

37
Commander, USSOUTHCOM has consistently sought to maximize socialization and intellectual stimulation
during the time detainees have been held in Camp 7.
Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 5 of 6
47
Protection from Sensory Deprivation—Human-to-Human Contact

A. Legal/Policy Authority. Common Article 3. Under DoDD 2310.01E, detainees are to be
treated humanely and respected as human beings. Sensory deprivation is not authorized.
Additional reference material may be found in GPW (Art. 13, 17, 21, 22), GCC (Art. 27. 30-33,
84), and AR 190-8 (1-5, 6-1), which provides for individual or collective accommodations; and,
where possible, to group detainees by nationality, language, or custom. Except for disciplinary
or penal sanctions, detainees may not be held in “close confinement.”

B. Detainee/NGO Input. Cease using sensory deprivation methods, such as goggles, during
movements of detainees between camps or any other areas. Detainees should be allowed phone
calls, video-teleconferences, and visits from family members. Immediate family members that
are detainees should be allowed to visit or be housed together. Ensure proper translation of all
information. Expand access to outside news (in several relevant languages) with little or no
censorship.

C. Practice/Implementation. Sensory deprivation is defined in FM 2.22-3 as an arranged
situation causing significant psychological distress due to a prolonged absence, or significant
reduction, of the usual external stimuli and perceptual opportunities. Sensory deprivation is
prohibited. The use of goggling and earmuffs for security purposes is not prohibited in DoD
policy or directives. FM 3-19.40 specifically contemplates the use of such devices for security
purposes.

During security transports of detainees outside of their respective camps, it is necessary to
temporarily apply shielding devices for security purposes only. Blackened goggles and ear
muffs are only placed on detainees for transports outside of their respective camps. These
devices are immediately removed upon arrival to the point of destination.

For all detainees, except those in Camp 7, telephone calls are continually offered on a rotational
basis through the population, and all detainees are offered at least one call quarterly, and more
frequently if logistically possible.
38
Additionally, telephone calls can be approved for
humanitarian purposes upon request.

Camps 1-6, Echo and Iguana offer ample human-to-human contact daily. Detainees are housed
within either individual adjoining cells or communal bays, and are allowed to see and speak in
conversational tone with neighboring detainees in cells/bays, and while at recreation periods.
Most of the detainees are offered recreation for a minimum of four hours daily, and detainees in
a discipline status are offered at least two hours of recreation daily with other detainees in either
adjoining or shared recreation areas. In addition, the guard force maintains a minimum of 3-
minute checks on all detainees, and routine medical checks are conducted daily.

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

38
For a photo of a telephone room, see Appendix 12, Figure 11-1.
Case 1:04-cv-01194-UNA Document 1051-1 Filed 07/08/14 Page 6 of 6
Case 1:05-cv-01704-RMU Document 87-1 Filed 07/11/08 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
USAMA HASSAN ABU KABIR,
et al
Petitioners
v.
GEORGE . BUSH, et al..
Respondents.
)
)
)
) Civil Action
J
)
)
)
)
DECLARA TJON OF BRUCE E. VARGO
05-CV-1704 (JR)
I, Bruce E. Vargo, pursuant to 28 U.S.C. § 1746, hereby declare and say as follows:
1. l am a Colonel in the United States Army with over 23 years of active duty service. l
currently serve as the Commander of the Joint Detention Group (JDG) for the Joint Task Force -
Guantanamo Bay Naval Base ("JTF-GTMO"). ! am responsible for all aspects of detention
operations for Camp Delta. I have served in this position since 30 June 2007. The information
provided in this declaration is based on my personal knowledge or information obtained in the
course of my official duties.
2. lt is my responsibility, among others. to see that the detention mission at Guantanamo is
performed in a humane manner that protects the safety and security of the detainees and the
military personnel at JTF-GTMO. lam familiar with all of the areas of detention within JTF-
GTMO, including the conditions and operational policies and procedures for each detention area.
3. Every detainee at JTF-GTMO is housed in an area that provides adequate shelter and
ventilation. Every detainee at JTF-GTMO has full time access to potable drinking water, a toilet,
a sleeping area.
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2
each detention area within JTF-GTMO receive regular opportunities for recreation and regular
opportunities to maintain adequate personal hygiene. There are no soiitary confinement
detention areas at JTF-GTMO. Jn all detention areas, detainees have regular contact with other
detainees, guards, medical corpsmen who are present on the blocks and are available to conduct
med pass four times daily and sick call once a week, and other personnel involved in the delivery
of other services to detainees. As explained below, detainees are able to communicate with
other detainees either face-to-face or by spoken word from their cells throughout the day.
4. There are multiple facilities of varying levels of security at JTF-GTMO in which detainees
can be housed. Detainees are housed in accordance with their compliance with camp rules.
Detainees who are highly compliant are typically housed in Camp 4. Detainees who are not
classified as highly compliant are typically housed in the other facilities.
5. Camp 4 is a medium security, communal living detention facility, in which detainees reside in
open bays, with approximately five detainees per bay. They are able to recreate groups for up
to 20 hours per day, including three hours per day in the large recreation area. Detainees are able
to play games such as soccer, basketball and volleyball in the large recreation area. Detainees in
Camp 4 receive items such as athletic footwear, additional uniforms, and access to movies and
recorded television programs, in addition to the basic and comfort items issued in all other
camps. As in the other Camps, detainees in Camp 4 are constantly monitored by guard staff and
regularly visited by medical personnel, the International Committee of the Red Cross (ICRC),
and are moved in and out of their cell blocks for various reasons, including daily recreation,
medical appomtm<:nts
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3
6. Camp 4 also constitutes JTF-GTMO's most dangerous environment because of the detainees'
ability to plan and act as a group. In 2005, a detainee plot was uncovered to commandeer a food
service truck and use the vehicle to inj urc or kill guard staff On 18 May 2006, guard staff
members, upon entering a housing block. were attacked by detainees inside. A guard was
beaten with a baton and other instruments were used to assault and threaten other guards.
Eventually, less than lethal weapons were employed by the guard staff in order to regain control
of the housing block and rescue the guard staff Immediately after the guard staff was rescued,
detainees in several other cell blocks began rioting and physically damaging their housing
blocks. By the time the incident was finally over, several hundred thousand dollars worth of
damage had been inflicted, requiring repairs that, to date, are not folly completed. Because of
this potential for group violence, detainees placed in Camp 4 axe constantly assessed for their
compliance levels, propensity for indiscipline, and population suitability.
7. Unlike Camp 4, other camps in the JDG area of responsibility, specifically Camps 5 and 6,
are comparable to. and modeled after single cell detention maximum security facilities in the
United States. No detainees are held in isolation. Detainees are permitted to speak to one
another from their cells and participate in uninterrupted group prayer (led hy a block detainee
imam of their choosing) five times per day. All detainees housed in these camps have multiple
opportunities for daily interaction with other detainees and camp personnel. The cells have solid
walls, but detainees can talk with other detainees in adjoining cells and with detainees housed
near them, as well as with guards, medical staff, library and mail delivery personnel.
"vhen
fully secured \Vith feed closed, cells Camps S 6
other w1rrn n a group or Is
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Case 1:05-cv-01704-RMU Document 87-1 Filed 07/11/08 Page 4 of 7
4
Camp 5 and "pods" in Camp 6). With a raised voice, an individual detainee located in a cell on
one end of a block or pod can readily and effectively communicate with a detainee on the
opposite end of the block or pod. This free communication is not discouraged. facL for the
duration of the five separate thirty-minute prayer calls during each day, feed tray slots are opened
to facilitate just such co111munication betvveen detainees order to coordinate prayer call.
Additionally, detainees in these camps receive a minimum of two hours of outdoor recreation per
day in single detainee recreation areas. Detainees vvho are not in a disciplinary status are
permitted to recreate with another detainee in the same recreation yard and with other detainees
who are in adjacent recreation areas. All recreation areas are formed with standard chain link
fencing which facilitates easy communication between them. Detainees are also allowed two
books and one magazine to be in their possession at any given time. Detainees in these camps
are also permitted to send and receive regular maii, ICRC mail, and legal (privileged) mail (if
they are represented by counsel). Detainees in these camps are viewed every three minutes by
guard s t   f t ~ regularly visited by medical personnel, routinely visited by the !CRC, and transferred
in and out of their cells for various reasons, including daily recreation, medical appointments,
intelligence interviews, and legal visits. All camps are lit by a combination of natural and
artificial light.
8. Both the camp in which a detainee is housed and the privileges which are afforded
detainee are determined largely by the detainee and his activities while in detention. As with any
detention or correctional institution. custody and control measures at JTF-GTMO are in place to
maintain good personnel
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Case 1:05-cv-01704-RMU Document 87-1 Filed 07/11/08 Page 5 of 7
5
the current population of Camp 4 (e.g., whether the detainee's disposition is compatible with the
cmTent population of the camp). Only after detainee is successfolly is a 1no\re into
Camp 4 ordered. Once in Camp 4. a detainee is subject to immediate removal for acts of
indiscipline and can be removed for a failure to assimilate into current population.   ~    
detainees in Camp 4 are advised of this policy upon entry into Camp 4.
9. On 2 July 2008, some detainees were moved from Camp 6 to Camp 4, using the vetting
process described above. As with all detainees placed in Camp 4, these detainees will continue
to be assessed for their compliance levels, propensity for indiscipline. and population suitability.
As noted above, once in Camp 4, the JDG exercises a near zero tolerance policy for infractions
&'1d detainees who fail to comply with camp rules are removed to other camps. A detainee
housed in Camp 4, therefore, controls, through his behavior, whether he remains in the camp or
is moved to one of the more restrictive camps.
I 0. Although other Uighers were moved to Camp 4 on 2 July 2008, the petitioners in this case,
Bahtiyar Mahnut (!SN 277) and Arkin Mahmud (ISN l 03), were not moved into Camp 4 at that
time. Instead, these two detainees remain housed in Camp 6 due to their history of misconduct.
a. Since March 2003. !SN l 03 has committed 92 disciplinary infractions. consisting of
32 failures to comply with the guard force, 9 citations for possession of contraband, 6 citations
for damage to government property, I offense requiring a forced cell extraction, I attempted
assault on the guard force, 13 assaults on the guard force. 6 citations for participating in mass
disturbances, 1 7 threats to guard force, 6 cit;1t1cms for provoking
exposure
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6
consisting of 4 faiiurcs to comply with the guard force in April, 2 in March, and l in February; l
citation for possession of contraband in May and one in February; 2 assaults on guard staff in
May; J attempted assault in ApriL J threat to the guard force in May; and 2 instances of
provoking words ApriL
b. Since March 2003, !SN 277 has committed 44 disciplinary infractions, consisting of
17 failures to comply, 7 citations for possession of contraband, I attempted assault on the guard
force, 8 assaults on the guard force, 4 citations for provoking words and gestures, 2 citations for
damage to government property, 2 offenses requiring forced eel! extraction, 2 citations for
participating in a mass disturbance, and I threat to the guard force. In 2008 alone, !SN 277 has
committed 6 infractions consisting of 2 failures to comply with the guard force in March, 1
citation for possession of contraband in May, 2 assaults on guard staff in March. and l
attempted assault in February.
11. Consistent with JTF-GTMO practice, the behavior of !SN 103 and !SN 277 will continue to
be assessed and their eligibility for placement in Camp 4 will be reevaluated on a regular basis.
12. It is noteworthy that in March 2007, several members of the detained Uighur population
were transferred from Camp 6 to Camp L where they were eligible to receive a greater range of
privileges. The transferred detainees were then notified that their behavior and compliance \vith
camp rules could possibly lead to a further transfer to Camp 4. From March until June of 2007,
several Uighur detainees in Camp l. including ISNs ] 03 and 277, committed a myriad of
March 2007,
l 03 vvas cited fcjr a mass disturbance and
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7
l 3. All Uighur detainees in Camp 6 reside on the same pod. Since March 2008, the Uighur
detainees in Camp 6 have enjoyed extended and more flexible recreation times, as have other
detainees Camp 6. They, and other qualified detainees, arc also permitted to engage dual
recreation, which allows for two detainees in a single recreation yard, vice less compliant
detainee standard of only one detainee per recreation yard. These qualified detainees are also
allowed extended shower and dining times
14. I have been informed that counsel for ISNs 103 and 277 have filed a motion demanding
these two detainees be transferred to Camp 4. As noted above, placement in Camp 4 is based on
an assessment of detainee compliance with camp regulations and Camp 4 population suitability.
These criteria prevent transfer to Camp 4 of detainees who are instigators, habitual offenders of
camp regulations, violent detainees, suicide risks, detainees with psychological issues, and those
who are, or are suspected to be, disruptive to their follow detainees. As described above, a
review of !SN ] 03 's record indicates 92 disciplinary infractions, with ! 5 in 2008 alone,
including assault and threats of assault to the guard force in May. A review of !SN 27Ts
record indicates 44 disciplimi.ry infractions, with 6 infractions in 2008 alone, including
possession of contraband in May, two assaults on guard staff in March, and an attempted assault
in February. Based upon a totality of their conduct and proximity to camp disturbances, the
behavior of ISNs l 03 and 277 is inconsistent with a transfer to Camp 4.
1 declare under the penalty of perjury under the laws of the United States that the
foregoing is true and correct
2008.
Case 1:04-cv-01194-UNA Document 1051-2 Filed 07/08/14 Page 7 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


MOHAMMED AHMAD GHULAM
RABBANI (ISN 1461),

Petitioner,

v.

BARACK H. OBAMA, et al.,

Respondents.

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






O R D E R
Upon consideration of Petitioner’s Emergency Application For A Temporary
Restraining Order Prohibiting Respondents From Depriving Petitioner Of The Right To
Pray Communally During The Month Of Ramadan, Respondents’ opposition thereto, and
Petitioner’s reply, it is hereby ORDERED that the Application is DENIED.


_________________ ___________________________
Date The Honorable Gladys Kessler
United States District J udge



Case 1:04-cv-01194-UNA Document 1051-3 Filed 07/08/14 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA


IMAD ABDULLAH HASSAN (ISN 680),

Petitioner,

v.

BARACK H. OBAMA, et al.,

Respondents.

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








ORDER

Upon consideration of Petitioner’s Emergency Application For A
Temporary Restraining Order Prohibiting Respondents From Depriving Petitioner Of The
Right To Pray Communally During The Month Of Ramadan and Respondents opposition
thereto, it is hereby ORDERED that the application is DENIED.

_________________ ___________________________
Date The Honorable Gladys Kessler
United States District J udge



Case 1:04-cv-01194-UNA Document 1051-3 Filed 07/08/14 Page 2 of 2

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