Alhassan, Rasheed v. Hagee, Michael W. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2446
RASHEED ALHASSAN,
Petitioner-Appellant,
v.
GENERAL MICHAEL W. HAGEE,
Commandant, United States Marine Corps,
and
MAJOR JON D. QUEHL,
United States Marine Corps,
Respondents-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 1076—Michael M. Mihm, Judge.
ARGUED DECEMBER 3, 2004—DECIDED SEPTEMBER 1, 2005
Before BAUER, EASTERBROOK, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Lance Corporal Rasheed
Alhassan sought a discharge from the United States Marine
2 No. 04-2446
Corps as a conscientious objector but his request for
conscientious objector status was denied. Alhassan peti-
tioned the district court for relief under habeas corpus but
the district court denied his petition finding that the
Marine Corps had a basis in fact for denying him status as
a conscientious objector because he made his request
immediately after learning of his imminent departure to
Iraq and he never expressed any anti-war religious senti-
ment until he was about to be deployed. We agree with the
district court’s well reasoned opinion and affirm.
I. BACKGROUND
Rasheed Alhassan (“Alhassan”) enlisted in the United
States Marine Corps Reserve (“Marine Corps”) in July 2002
for a term of eight years. At the time of Alhassan’s enlist-
ment, he was twenty-one years old and declared that he
was not a conscientious objector. When he enlisted,
Alhassan also stated that he did not, nor did he ever have,
“a firm, fixed, and sincere objection to participation in war
in any form or to the bearing of arms because of religious
belief or training.” Unattached App. to Appellant’s Br. at 82
(hereafter referred to as “Unattached App.”).
In October 2002, Alhassan successfully completed boot
camp at Camp Pendleton, California and attended seven-
teen days of follow-up training at the Marine Combat
Training Battalion, which trains all non-infantry Marines
in the skills essential to operate in a combat environment.
After completing additional training for his military
occupational specialty as a motor vehicle operator, the
Marine Corps assigned Alhassan to Charlie Company 6th
Engineering Support Battalion (“the Unit”), located in
Peoria, Illinois.
When Alhassan reported to the Unit on January 19, 2003,
Gunnery Sergeant J.K. Howard informed Alhassan that the
Unit had been activated in support of Operation Iraqi
No. 04-2446 3
Freedom. According to Howard’s notes, Alhassan responded
to this news by stating that he probably would not be able
to attend Bradley University in the fall, and by expressing
concern that his mother would be going through divorce
proceedings during his absence. Significantly, Alhassan did
not mention any ethical or religious concerns that would
prevent him from deploying to Iraq.
Six days later, the Marine Corps transferred Alhassan’s
unit to Camp Pendleton for training in preparation for
overseas deployment. Alhassan then requested and applied
for conscientious objector status. After filing that applica-
tion, Alhassan was interviewed by various military officials,
pursuant to the Marine Corps’s policy governing conscien-
tious objector applications.
In his interview with Captain D.A. Dansak, a Navy
psychiatrist on February 9, 2003, Alhassan said that he
“‘found Jesus’ and accepted Him.” Alhassan also stated that
he had attended a few Sunday services but had not chosen
a particular religion to follow and had not been baptized in
any church. Alhassan also mentioned that he had not
discussed this recent religious “conversion” with his
girlfriend. Captain Dansek concluded that Alhassan was
suffering from “routine military stress, mobilizing,” but
otherwise concluded that Alhassan was fit for deployment.
After Captain Dansek completed his report, Commander
Ron Howard, a Navy chaplain, interviewed Alhassan and
reported that although he determined Alhassan’s belief that
killing is wrong was sincere, he found Alhassan’s “faith . .
. very immature at this point and not well developed.”
On March 3, 2003, Major Randy L. Anderson conducted
a hearing to consider Alhassan’s request for discharge as a
conscientious objector. During the hearing, Alhassan was
given an opportunity to express or present any evidence in
support of his application for conscientious objector status.
Alhassan answered Major Anderson’s questions and
4 No. 04-2446
submitted a sworn statement. On March 10, 2003, Major
Anderson concluded in a written report that while Alhassan
appeared to be sincere in his beliefs, he did not consider
him within the definition of a conscientious objector as
provided for in Marine Corps Order 1306.16E, the guide-
lines which govern classification of conscientious objectors.1
In reaching this conclusion, Major Anderson reasoned that
Alhassan’s conscientious objection did not manifest itself
until Alhassan’s unit was activated and about to deploy
overseas to Iraq. In addition, when informed that his Unit
had been activated, Alhassan did not mention any conscien-
tious objection to war but instead focused on his enrollment
in college and the well-being of his mother.
On April 15, 2003, Major Anderson’s report, along with
Alhassan’s rebuttal, was forwarded to Lieutenant Colonel
J.D. Lloyd, Commanding Officer, Headquarters Battalion.
After reviewing the report and rebuttal, Colonel Lloyd
recommended that Alhassan’s request for conscientious
objector status be denied. Colonel Lloyd agreed with Major
Anderson’s findings except he found that “[Petitioner] did
not satisfy his burden of ‘demonstrating a sincere opposition
to war in any form based upon his religious beliefs and
convictions.’ ” Unattached App. at 14.
On April 24, 2003, in accordance with Marine regulations,
the entire record was reviewed by R.L. Price, a Marine
1
Marine Corps Order 1306.16E provides:
Consistent with the policy contained in the references and this
Order, an application for classification as a conscientious
objector may be approved for any individual:
(1) Who is conscientiously opposed to participation in war in any
form;
(2) where opposition is founded on religious training and belief;
and
(3) whose position is sincere and deeply held.
No. 04-2446 5
Officer and attorney in the Staff Judge Advocate’s Office of
Commander Marine Forces Reserve. Mr. Price found the
record “complete and legally sufficient.” L.S. Taylor, Acting
Commander, Marine Forces Reserve, forwarded Alhassan’s
record to the Commandant of the Marine Corps, General
Michael W. Hagee. Alhassan submitted a rebuttal, and
after reviewing both documents, General Hagee denied
Alhassan’s request for conscientious objector status.
Alhassan petitioned the district court for habeas corpus
relief but the court rejected his petition, finding that the
Marine Corps had a basis in fact for denying Alhassan’s
conscientious objector status. Alhassan timely appeals.
II. ANALYSIS
A. Standard of Review
A petition seeking habeas corpus relief is appropriate
under 28 U.S.C. § 2241 when a defendant is challenging the
fact or duration of his confinement. Preiser v. Rodriguez,
411 U.S. 475, 490 (1973); Waletzki v. Keohane, 13 F.3d
1079, 1080 (7th Cir. 1994). Section 2241 requires that the
petitioner be in “custody”. 28 U.S.C. § 2241(c)(3) (2005).
However, this term does not necessarily mean physical
detention in jail, but can also mean a restraint of liberty.
Peyton v. Rowe, 391 U.S. 54, 66 (1968). Servicemen are
sufficiently in “custody” to invoke the provisions of Section
2241 and may do so after exhausting all avenues of admin-
istrative relief. Parisi v. Davidson, 405 U.S. 34, 35 (1972);
Schlanger v. Seamans, 401 U.S. 487, 489 (1971); Oestereich
v. Selective Serv. Sys. Local Bd., 393 U.S. 233, 235 n.5
(1968).
In order to prevail, the government has the burden of
proving that there was a “basis in fact” for its denial of
Alhassan’s application. Estep v. United States, 327 U.S. 114,
122 (1946); United States ex rel. Okerlund v. Laird, 473
6 No. 04-2446
F.2d 1286, 1288-89 (7th Cir. 1973). Our review of a decision
supported by a basis in fact standard of review is limited,
and has been described by the ninth circuit as “the narrow-
est review known to the law.” Woods v. Sheehan, 987 F.2d
1454, 1456 (9th Cir. 1993) (quoting Koh v. Sec’y of the Air
Force, 719 F.2d 1384, 1385 (9th Cir. 1983)); see also
Okerlund, 473 F.2d at 1289. The reviewing court does not
weigh the evidence for itself or ask whether there is
substantial evidence to support the military officials’ denial
of the applicant’s request for conscientious objector status.
Witmer v. United States, 348 U.S. 375, 380-81 (1955).
Rather, the court “search[es] the record for some affirmative
evidence” to support the government’s overt or implicit
finding that the applicant “has not painted a complete or
accurate picture of his activities.” Dickinson v. United
States, 346 U.S. 389, 396 (1953). In other words, the
reviewing court should look for some proof that is incompat-
ible with the applicant’s claims. Id.B. “Basis in Fact” Analysis
A conscientious objector has no constitutional or statutory
right to be discharged from active service after voluntary
enlistment. Roby v. United States Dep’t of the Navy, 76 F.3d
1052, 1055 (9th Cir. 1996); Sanger v. Seamans, 507 F.2d
814, 817 (9th Cir. 1974); DeWalt v. Commanding Officer,
476 F.2d 440, 442 (5th Cir. 1973). Service members’ rights
to request conscientious objector status derive from military
regulations. See Parisi v. Davidson, 405 U.S. 34, 38 n.2
(1972). The Department of Defense (“DOD”) has imple-
mented procedures for service members to apply for consci-
entious objector status. 32 C.F.R. § 75. As such, the Marine
Corps has promulgated a regulation that executes the DOD
procedures. Marine Corps Order 1306.16E, supra note 1. As
described earlier, under Marine Corps Order 1306.16E,
Alhassan must show first that he is conscientiously opposed
No. 04-2446 7
to participation in war in any form. Second, that this
opposition is based on religious training and beliefs, and
third, that his position is sincere and deeply held. Id.
Alhassan argues here that the Marine Corps’s denial of
his application had no basis in fact. The Marine Corps does
not challenge Alhassan’s assertion that he is conscien-
tiously opposed to war in any form. However, relying on the
reports of Major Anderson, Lieutenant Colonel Lloyd, and
the final decision of General Hagee, it challenges Alhassan’s
ability to satisfy the second and third prongs of Marine
Corps Order 1306.16E.
We find that there was some basis in fact for the decision
of the Marine Corps to deny Alhassan’s application.
Because the “ultimate question in conscientious objector
cases is the sincerity of the registrant,” Witmer, 348 U.S. at
381, we review the record for “some inference of insincerity
or bad faith.” Id. at 382. Within the “basis in fact” standard
of review, we have found that “a belated conscientious
objector application following assignment is a proper
element for consideration.” Okerlund, 473 F.2d at 1289.
On July 22, 2002, Alhassan enlisted for eight years in the
Marine Corps Reserve. On January 23, 2003, less than a
year later, Alhassan applied for conscientious objector
status after receiving orders which would have placed his
unit directly in support of Operation Iraqi Freedom.
Although the timing of Alhassan’s application is not by
itself a basis for insincerity, we can factor the timing of an
application for conscientious objection status into our
analysis. Id. In July 2002 when Alhassan enlisted he stated
that he did not, nor did he ever have, “a firm, fixed, and
sincere objection to participation in war in any form or to
the bearing of arms because of religious belief or training.”
Six months later, upon learning of his imminent deploy-
ment to Iraq, Alhassan informed his superiors for the first
time that he harbored convictions against war and filed his
8 No. 04-2446
application for discharge as a conscientious objector. As the
district court noted, despite Alhassan’s claim to have
developed his beliefs during boot camp, there is no indica-
tion that he told his parents, girlfriend, or any of his
superiors at boot camp about his concerns. Alhassan did not
raise this issue during his post-boot camp combat training
or during his motor vehicle training. In addition, Alhassan
did not disclose his objections to war when Gunnery
Sergeant Howard informed him that the Unit was being
deployed to Iraq. Alhassan only expressed concerns about
how his mother would handle her divorce in his absence,
and his inability to return to college in the fall. Alhassan
even remained silent when accompanying the Unit to Camp
Pendleton to prepare for deployment. It was not until
Alhassan had been at Camp Pendleton for approximately
two weeks, and the possibility of deployment to Iraq became
even more imminent, that he informed anyone in his chain
of command that he had a conscientious objection.
As the reviewing court in this matter, it is not our job to
assess whether the military had substantial evidence to
support its conclusion that Alhassan’s opposition was not
based on religious training and beliefs, and that his position
was not sincere and deeply held. We need only determine
whether all of the facts suggest that there is “some proof
that is incompatible with the applicant’s claim.” Roby, 76
F.3d at 1055. Here, we conclude that the Marine Corps had
a basis in fact for its decision denying Alhassan’s applica-
tion.
Alhassan argues that we should rely on United States v.
Lemmens, 430 F.2d 619 (7th Cir. 1970) and United States v.
Joyce, 437 F.2d 740 (7th Cir. 1971), which he reads to
suggest that the timing of a conscientious objector’s applica-
tion is of little importance. In Lemmens, we concluded that
the timing of the plaintiff’s conscientious objection applica-
tion did not suffice as a basis in fact. 430 F.2d at 624.
No. 04-2446 9
Similarly, in Joyce, we held that, “[t]ardiness standing
alone, however, carries slight weight in light of the subjec-
tivity of the beliefs involved and the fact that aging, as well
as external circumstances, may serve to crystallize sincere
beliefs in a young man’s mind long after his initial registra-
tion.” 437 F.2d at 745. However, both Joyce and Lemmens
are not applicable in this case.
Both Joyce and Lemmens were cases we decided during
the Vietnam era and involved draftees to the military.
These draftees developed their conscientious objection after
complying with their mandatory application to the draft
board. Joyce, 437 F.2d at 744; Lemmens, 430 F.2d at 622.
Our decision in Okerlund, 473 F.2d at 1289, is closer to the
facts surrounding Alhassan’s application for conscientious
objection. Okerlund, as with the case at bar, both involve
soldiers who voluntarily enlisted into the military, and then
began the conscientious objector process after realizing that
the military was to send them to a combat zone. Id.
Alhassan argues that there is no difference between cases
in which a soldier volunteers in the military versus cases in
which a soldier is drafted. We disagree. Alhassan volun-
teered, of his own free will, to serve in the Marine Corps.
Before enlisting, he signed a document stating that he had
no “firm, fixed, and sincere objection to participation in war
in any form or to the bearing of arms because of religious
belief or training.” In Joyce and Lemmens, the men had no
choice as to whether they would volunteer or not—they
were drafted and both men began their conscientious
objection applications at various stages of the draft process.
Because Commander Howard found Alhassan’s “faith . . .
very immature at this point and not well developed,”
presumptively relying on Marine Corps Order 1306.16E,
which provides that an application for conscientious
objection may be approved for an individual “whose position
10 No. 04-2446
is sincere and deeply held,”2 Alhassan also argues that we
should adopt the reasoning of the Fifth Circuit in Helwick
v. Laird, 438 F.2d 959 (5th Cir. 1971). Helwick, another
Vietnam era draft case in which Helwick’s chaplain and
unit commander recommended that Helwick’s conscientious
objector application be rejected because of the lack of “depth
and maturity” of Helwick’s views, held that “depth and
maturity” factors were an insufficient basis for denying
Helwick’s application, and that the government can only
measure the sincerity of a conscientious objector’s religious
convictions and not the depth or stage of an applicant’s
religious development. Id. at 964. The First and the Eighth
circuits also rejected the “depth of conviction” as an inde-
pendent element of the government’s conscientious objector
test. See Hager v. Sec’y of the Air Force, 938 F.2d 1449 (1st
Cir. 1991); Kemp v. Bradley, 457 F.2d 627 (8th Cir. 1972)3.
However, we decline to follow this reasoning. The holding
of Helwick is not the law of this circuit. In Joyce, we
2
Alhassan has alleged no constitutional violation here, he simply
argues that the Marine Corps should not be able to assess the
depth of his conviction.
3
In Kemp, 457 F.2d at 629, the court wrote:
“ ‘Depth of conviction’ requires theological or philosophical
evaluation. We think it unwise to adopt this more complex concept
as the requirement which a Selective Service registrant or
member of the Armed Forces must fulfill in order to qualify for
conscientious objector classification.”
In Hager, 938 F.2d at 1459, the First Circuit adopted the Eighth
Circuit’s reasoning, adding that when:
“the military undertakes to measure the depth with which the
applicant holds [his] belief, we think the inquiry becomes
an impermissible subjective look into [the] heart and soul. The
question is, does he believe, not, how deeply does he believe. Id.(emphasis in original).
No. 04-2446 11
specifically held that, “United States v. Seeger, 380 U.S. 163makes it abundantly clear that the [government] must focus
on the nature and depth of the registrant’s individual
beliefs, however derived or inspired, whether orthodox or
unorthodox.” 437 F.2d at 744. We decline to disturb this
holding.
The courts have a history of giving the military a wide
scope of deference in crafting its own regulations. Meinhold
v. Dep’t of Def., 34 F.3d 1469, 1476-77 (9th Cir. 1994) (“. . .
we are guided by [a] long-settled rule: The military’s
‘considered professional judgment,’ is ‘not lightly to be
overruled by the judiciary.’ . . . Our review, therefore, is as
deferential as our constitutional responsibilities permit.”);
Turpin v. Resor, 452 F.2d 240, 242 (9th Cir. 1971); Steffan
v. Perry, 41 F.3d 677, 684-85 (D.C. Cir. 1994) (“It is hard to
imagine a more deferential standard than rational basis,
but when judging the rationality of a regulation in the
military context, we owe even more special deference . . .”).
The reason for the courts’ deference to the military, in
particular to manage its own regulations, is simple, judges
are not military leaders and do not have the expertise nor
the mandate to govern the armed forces.
III. CONCLUSION
It is not our function, as the reviewing court, to determine
whether the Marine Corps had substantial evidence to
determine that Alhassan’s opposition to war was not
adequately based on religious training and beliefs, or that
his position was not sincerely and deeply held. The relation-
ship between a person, his or her deity, and his or her
religion is a highly personal matter, and one in which it can
take as long as a lifetime, or even as short as a few days, to
develop a sincere and deep understanding of religious
teachings, dogma, and the deity that one believes in itself.
Our duty is only to determine whether there is a basis in
fact for the Marine Corps’s decision to deny Alhassan’s
12 No. 04-2446
application as a conscientious objector. The simple fact is
that the timing of this application, combined with the
enlistment contract that Alhassan signed stating that he
did not have a conscientious objection to war, along with the
fact that Alhassan did not mention his beliefs to anyone in
his chain of command nor his close friends until his immi-
nent departure to Iraq, lead us to believe that the govern-
ment has indeed provided affirmative evidence supporting
its decision to deny Alhassan’s application as a conscien-
tious objector, and as such has created a basis in fact for its
decision. Therefore we AFFIRM the decision of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-1-05