Fadi Maqaleh v. Chuck Hagel , 738 F.3d 312 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 2013 Decided December 24, 2013
No. 12-5404
FADI AL MAQALEH, DETAINEE, AND AHMAD AL MAQALEH, AS
NEXT FRIEND OF FADI AL MAQALEH,
APPELLANTS
v.
CHUCK HAGEL, SECRETARY, UNITED STATES DEPARTMENT OF
DEFENSE, ET AL.,
APPELLEES
Consolidated with 12-5399, 12-5401
Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cv-01669)
(No. 1:08-cv-01307)
(No. 1:08-cv-02143)
No. 12-5407
AMANATULLAH, DETAINEE, AND ABDUL RAZAQ, AS NEXT
FRIEND TO AMANATULLAH,
APPELLANTS
v.
2
BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00536)
No. 12-5410
HAMIDULLAH, DETAINEE, AND WAKEEL KHAN, AS NEXT
FRIEND TO HAMIDULLAH,
APPELLANTS
v.
BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00758)
Tina Monshipour Foster argued the cause for appellants
Fadi Al Maqaleh, et al., in Nos. 12-5404, et al. Golnaz
Fakhimi, Ramzi Kassem, Hope Metcalf and Sylvia Royce were
on brief. Barbara J. Olshansky entered an appearance.
3
Eric L. Lewis argued the cause for appellants
Amanatullah, et al., in No. 12-5407. Tina Monshipour
Foster, Golnaz Fakhimi and A. Katherine Toomey were on
brief.
John J. Connolly argued the cause for appellants
Hamidullah, et al., in No. 12-5410. William J. Murphy and
Cori Crider were on brief.
Sharon Swingle, Attorney, U.S. Department of Justice,
argued the cause for the appellees. Stuart F. Delery, Assistant
Attorney General, Ronald C. Machen Jr., U.S. Attorney, and
Douglas N. Letter, Attorney, were on brief.
Before: HENDERSON and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Over three
years ago, we decided that enemy combatants held by the
United States at Bagram Airfield Military Base (Bagram) in
northwest Afghanistan could not invoke the Suspension
Clause, U.S. CONST. art. I, § 9, cl. 2, to challenge their
detentions. Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)
(Al Maqaleh II). In these three appeals, Bagram detainees
once again seek access to the writ of habeas corpus. We once
again dismiss their petitions for want of jurisdiction.
I
A. Bagram and its Detainees
In the wake of the September 11, 2001 attacks on our
homeland, the Congress authorized the President to “use all
necessary and appropriate force against those nations,
4
organizations, or persons he determines planned, authorized,
committed, or aided” the attacks. Authorization for Use of
Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224,
224 (2001). Among the powers conferred on the President
was the power to detain enemy combatants “for the duration
of the particular conflict in which they were captured.” Hamdi
v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion); id.
at 588–89 (Thomas, J., dissenting) (agreeing that AUMF
authorizes detention); see also Boumediene v. Bush, 553 U.S.
723, 733 (2008); Khairkhwa v. Obama, 703 F.3d 547, 548
(D.C. Cir. 2012); Uthman v. Obama, 637 F.3d 400, 402 (D.C.
Cir. 2011), cert. denied 132 S. Ct. 2739 (2012). 1 An enemy
combatant is any person who, at the time of capture, was a
part of the Taliban, al Qaeda or associated forces engaged in
hostilities against the United States. See Al-Madhwani v.
Obama, 642 F.3d 1071, 1073–74 (D.C. Cir. 2011), cert.
denied, 132 S. Ct. 2739 (2012); Al-Bihani v. Obama, 590 F.3d
866, 872 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814
(2011).
The United States has detained enemy combatants at
facilities both within and outside the United States, including
Bagram. Located in Parwan Province in northwest
Afghanistan, Bagram is the largest U.S. military installation
in that country. Al Maqaleh II, 605 F.3d at 87. U.S. and allied
forces conduct operations from Bagram. The current lease
agreement between the United States and Afghanistan
provides that the United States may occupy and use Bagram
“for military purposes . . . until the United States or its
1
The Congress recently affirmed the President’s authority to
detain enemy combatants. See Fiscal Year 2012 National Defense
Authorization Act, Pub. L. No. 112-81, § 1021, 125 Stat. 1298,
1562 (2011) (codified at 10 U.S.C. § 801 note (2012)).
5
successors determine that the premises are no longer required
for its use.” Id. (quotations marks omitted).
Among those detained at Bagram are the five appellants
in this case (to whom we refer collectively as the Appellants).
Three of the Appellants—Fadi al-Maqaleh, Amin al-Bakri
and Redha al-Najar—were appellees in Al Maqaleh II (we
refer to them collectively as the Al Maqaleh II Appellants).
Appellant al-Maqaleh is a Yemeni citizen who alleges that the
United States captured him outside Afghanistan and
transferred him to Bagram in 2004 or 2005. Appellant al-
Bakri is a Yemeni citizen who alleges that the United States
captured him in Thailand in 2002 and eventually transferred
him to Bagram. Appellant al-Najar is a Tunisian citizen who
alleges he was captured in Pakistan in 2002 and subsequently
transferred to Bagram. Appellant Amanatullah is a Pakistani
citizen who was captured by British forces in Iraq in 2004 or
2005 and subsequently transferred to Bagram. Appellant
Hamidullah is a Pakistani citizen who alleges that he was
captured in the Pakistani border region of South Waziristan in
2008 at the age of fourteen and subsequently detained at
Bagram.
Before Al Maqaleh II, the United States housed detainees
within the confines of Bagram at the Bagram Theater
Internment Facility (BTIF). In late 2009, however, the United
States constructed a new detention facility, then known as the
Detention Facility in Parwan (DFIP), just outside Bagram.
The United States transferred all Afghan detainees held in the
BTIF to the DFIP by late 2009. Adjacent to the DFIP, the
United States built a separate facility to house non-Afghan
detainees. In May 2012, the United States agreed to transfer
both “U.S. detention facilities in Afghan territory to Afghan
control” and “Afghan nationals detained by U.S. forces at the
[DFIP] to Afghanistan.” Memo. of Understanding on Transfer
of U.S. Detention Facilities in Afghan Territory to
6
Afghanistan, U.S.-Afg., § 2, Mar. 9, 2012, Joint Appendix
(JA) 680 (2012 MOU). The United States completed the
transfer of the DFIP facility and its inmates to Afghan control
on March 25, 2013. John Kerry, Remarks with President
Hamid Karzai After Their Meeting (Mar. 25, 2013), available
at http://www.state.gov/secretary/remarks/2013/03/206663.
htm; Press Release, International Assistance Security Force,
North Atlantic Treaty Organization, U.S. Transitions Parwan
Detention Facility to Afghan Government (Mar. 25, 2013),
available at http://www.isaf.nato.int/article/isaf-releases/u.s.-
transitions-parwan-detention-facility-to-afghan-government.ht
ml. The DFIP—now known as the Afghan National
Detention Facility-Parwan—is a part of the Justice Center in
Parwan (JCIP), where the Afghan government conducts
criminal trials of Afghan detainees.
We note that the Appellants’ current status is unclear.
Although the Government represented in May 2011 that it
detained them at the DFIP, it has since ceded the DFIP to
Afghan control. The record does not disclose whether, after
that cession, the Appellants remain there or at some other
facility and the Government has not informed us of the
Appellants’ current location. The Appellants claim in their
briefs—filed after the transfer of the DFIP to Afghan
control—that the United States continues to detain them at “a
separate prison facility at Bagram.” Joint Br. for Pet’rs-
Appellants (al-Maqaleh Br.) 38, Al Maqaleh v. Gates, Nos.
12-5404, 12-5399, 12-5401 (D.C. Cir. April 27, 2013).
Because the Government concedes its continuing custody
over four of the five Appellants, we accept the Appellants’
alleged location of their detention as accurate for the purpose
of our jurisdictional analysis.
7
B. Legal Framework
In 2006, the Congress enacted the Military Commissions
Act of 2006 (2006 MCA), Pub. L. No. 109-366, 120 Stat.
2600. It provides, in pertinent part, that
[n]o court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
United States who has been determined by the United
States to have been properly detained as an enemy
combatant or is awaiting such determination . . .
pending on or after the date of the enactment of this
Act . . . .
Id. § 7(a), (b), 120 Stat. at 2635–36 (codified at 28 U.S.C.
§ 2241(e)(1) (2006)). We held that section 7 stripped the
court of jurisdiction to consider any habeas petition filed by
any alien detained as an enemy combatant outside the United
States. Boumediene v. Bush, 476 F.3d 981, 986–88 (D.C. Cir.
2007). Relying on the United States Supreme Court’s
decision in Johnson v. Eisentrager, 339 U.S. 763 (1950), we
further concluded that section 7 did not unconstitutionally
suspend the writ because the Suspension Clause’s protections
did not reach the United States Naval Station Guantanamo
Bay (Guantanamo) in Cuba. Id. at 990–94. In Eisentrager,
German citizens detained by the United States at Landsberg
Prison in post-World War II Bavaria petitioned for writs of
habeas corpus. 339 U.S. at 765–66. The Supreme Court held
that the constitutional right to the writ of habeas corpus did
not extend to the German prisoners. Id. at 781. Our
Boumediene decision read Eisentrager to hold that the
protections of the Suspension Clause did not extend to aliens
held outside the sovereign territory of the United States,
including Guantanamo. Boumediene, 476 F.3d at 990–92.
8
The Supreme Court reversed. Boumediene v. Bush, 553
U.S. 723 (2008). It rejected the “premise that de jure
sovereignty is the touchstone of habeas jurisdiction.” Id. at
755; see also id. at 764 (“Nothing in Eisentrager says that de
jure sovereignty is or has ever been the only relevant
consideration in determining the geographic reach of the
Constitution or of habeas corpus.”). Instead, construing
Eisentrager in light of the Insular Cases 2 and Reid v. Covert,
354 U.S. 1 (1957), the Supreme Court identified “a common
thread uniting” its extraterritoriality jurisprudence, to wit, that
“questions of extraterritoriality turn on objective factors and
practical concerns, not formalism.” Boumediene, 553 U.S. at
764. It identified
at least three factors . . . relevant in determining the
reach of the Suspension Clause: (1) the citizenship and
status of the detainee and the adequacy of the process
through which that status determination was made; (2)
the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles
inherent in resolving the prisoner’s entitlement to the
writ.
Id. at 766. Applying the factors to the detainees at
Guantanamo, the Supreme Court concluded that the
Suspension Clause extended to Guantanamo and therefore the
Guantanamo detainees had a constitutional right to challenge
2
The Insular Cases were a series of cases addressing the reach
of the Constitution to U.S. territories located in the Caribbean and
the Pacific. See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922);
Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi,
190 U.S. 197 (1903); De Lima v. Bidwell, 182 U.S. 1 (1901);
Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United
States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244
(1901).
9
the basis of their detention. Id. at 766–71. Because the
existing procedures did not afford them an adequate
opportunity to challenge their detentions, the Supreme Court
held that section 7 of the 2006 MCA is an unconstitutional
suspension of the writ at Guantanamo. Id. at 792.
C. Litigation History
The Al Maqaleh II Appellants petitioned the district court
for writs of habeas corpus. 3 Applying the three Boumediene
factors, the district court concluded that the Al Maqaleh II
Appellants were “virtually identical to the detainees in
Boumediene” and held that section 7 of the 2006 MCA
unconstitutionally suspended the writ at Bagram. Al Maqaleh
v. Gates, 604 F. Supp. 2d 205, 208–09 (D.D.C. 2009) (Al
Maqaleh I). We reversed, holding that significant differences
between Bagram and Guantanamo as well as the practical
difficulties posed by adjudicating habeas petitions in a war
zone barred extension of the Suspension Clause to Bagram. Al
Maqaleh II, 605 F.3d at 97–99. Shortly after our ruling, the
Al Maqaleh II Appellants sought rehearing on the basis of
new evidence which they claimed undermined our decision.
We denied the petition “without prejudice to appellees’ ability
to present this evidence to the district court in the first
instance.” Order, Al Maqaleh II, No. 09-5265 (D.C. Cir. July
23, 2011) (per curiam).
The Appellants then filed amended habeas petitions in
district court. The Al Maqaleh II Appellants argued that
changed circumstances relevantly distinguished their new
3
Appellant al-Maqaleh filed his petition before the Supreme
Court’s Boumediene decision and Appellants al-Bakri and al-Najar
filed their petitions after Boumediene issued. The respondents in
this case include the President, the Secretary of Defense (Secretary)
and several John and Jane Does.
10
petitions from those rejected in Al Maqaleh II. They claimed
that new evidence indicated that the United States intended to
remain at Bagram indefinitely; that obstacles to conducting
habeas proceedings were less severe than the Al Maqaleh II
court believed; that the United States detained them at
Bagram in order to evade the habeas jurisdiction of federal
courts; and that the propriety-of-detention determination
procedures used at Bagram were inadequate. Al Maqaleh v.
Gates, 899 F. Supp. 2d 10, 16 (D.D.C. 2012) (Al Maqaleh
III). In a thorough opinion, the district court dismissed the
petitions, concluding that the new evidence did not alter the
holding of Al Maqaleh II. Id. at 16–25. Appellant
Amanatullah raised nearly identical arguments in his petition
and they were rejected for largely the same reasons.
Amanatullah v. Obama, 904 F. Supp. 2d 45, 49–57 (D.D.C.
2012). Appellant Hamidullah argued that his infancy at the
time of his capture weighed in favor of extending the writ.
Hamidullah v. Obama, 899 F. Supp. 2d 3, 5–6 (D.D.C. 2012).
The district court rejected this argument as insufficient to
overcome the fact that Bagram is situated within a war zone.
Id. at 10. The Appellants timely appealed.
II
A. Standard of Review
We review de novo the dismissal of a habeas petition for
want of jurisdiction. Al Maqaleh II, 605 F.3d at 94; see also
United States v. Poole, 531 F.3d 263, 270 (4th Cir. 2008);
Wang v. Ashcroft, 320 F.3d 130, 139–40 (2d Cir. 2003).
Although we accept the allegations in the petition as true
when reviewing a motion to dismiss for lack of jurisdiction,
see Leatherman v. Tarrant Cnty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993), that
formulation does not accurately account for the full scope of
our review. If the allegations upon which jurisdiction rests
11
are challenged, the district court may resolve the dispute and
consider its resolution of any disputed facts alongside the
petitioner’s undisputed allegations. Herbert v. Nat’l Acad. of
Scis., 974 F.2d 192, 197–98 (D.C. Cir. 1992); see also Coal.
for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003); EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 n.3 (D.C. Cir. 1997); 5B CHARLES ALAN
WRIGHT & ARTHUR P. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1350, at 160 n.47 (3d ed. 2004) (collecting
cases). We review the district court’s resolution of factual
disputes for clear error. Herbert, 974 F.2d at 198.
We have already decided that we do not have habeas
jurisdiction at Bagram, see Al Maqaleh II, 605 F.3d 84, and
the law-of-the-circuit doctrine requires that we adhere to that
decision, see In re Grant, 635 F.3d 1227, 1232 (D.C. Cir.
2011) (“The law-of-the-circuit doctrine means that ‘the same
issue presented in a later case in the same court should lead to
the same result’ and that ‘[o]ne three judge panel . . . does not
have the authority to overrule another three-judge panel of the
court.’ ” (emphasis in original) (quoting LaShawn v. Barry, 87
F.3d 1389, 1393, 1395 (D.C. Cir. 1996) (en banc))). Our task,
therefore, is a modest one: to determine whether the
circumstances underlying Al Maqaleh II have changed so
drastically that we must revisit it. 4
4
Our review of the Al Maqaleh II Appellants’ appeal is further
constrained both by the law-of-the-case doctrine, see Kimberlin v.
Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999) (“The law-of-the-case
doctrine rests on a simple premise: the same issue presented a
second time in the same case in the same court should lead to the
same result.” (quotation marks omitted)), and by the derivative-
waiver doctrine, Crocker v. Piedmont Aviation, Inc., 49 F.3d 735,
739 (D.C. Cir. 1995) (“A legal decision made at one stage of
litigation, unchallenged in a subsequent appeal when the
12
B. Mootness
Events subsequent to oral argument require us to
determine whether Appellant Hamidullah’s appeal is moot.
On November 16, 2013, the United States transferred
Hamidullah to the custody of the government of Pakistan.
After learning of the transfer, we ordered the parties to brief
the mootness question. Having reviewed the briefs, we
conclude that the parties’ factual dispute regarding the nature
of Pakistan’s custody over Hamidullah must be resolved by
the district court in the first instance.
Under Article III of the Constitution, we have authority
to adjudicate only live cases or controversies. Already, LLC
v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “A case remains
live ‘[a]s long as the parties have a concrete interest, however
small, in the outcome of the litigation.’ ” United Bhd. of
Carpenters & Joiners of Am. v. Operative Plasterers’ &
Cement Masons’ Int’l Ass’n of the U.S. & Can., 721 F.3d 678,
687 (D.C. Cir. 2013) (quoting Knox v. Serv. Emps. Int’l
Union, Local 1000, 132 S. Ct. 2277, 2287 (2012)). This
“ ‘requirement subsists through all stages of federal judicial
proceedings, trial and appellate. It is not enough that a
dispute was very much alive when suit was filed’; the parties
must ‘continue to have a personal stake’ in the ultimate
disposition of the lawsuit.” Chafin v. Chafin, 133 S. Ct. 1017,
1023 (2013) (quoting Lewis v. Cont’l Bank Corp., 494 U.S.
472, 477–78 (1990)) (quotation marks, brackets and citation
omitted); see also Steffel v. Thompson, 415 U.S. 452, 459 n.10
(1974).
opportunity to do so existed, governs future stages of the same
litigation, and the parties are deemed to have waived the right to
challenge that decision at a later time.” (quotation marks and
brackets omitted)).
13
We have previously addressed the effect of a detainee’s
release on his pending habeas petition. In Gul v. Obama, two
aliens detained as enemy combatants filed habeas petitions
challenging their detentions. 652 F.3d 12, 14 (D.C. Cir. 2011).
During the pendency of their petitions, the United States
released them to the custody of foreign governments. Id.
They argued that their petitions were not moot, however,
because they continued to suffer “collateral consequences”
arising from their designation as enemy combatants. Id. at 15.
Under the collateral consequences doctrine, a prisoner’s
habeas petition challenging the legality of his conviction
becomes moot upon the expiration of his sentence unless he
can show that he continues to suffer some continuing harm, or
“collateral consequence,” from his conviction. United States
v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (citing
Spencer v. Kemna, 523 U.S. 1, 7–8 (1998); see also Carafas
v. LaVallee, 391 U.S. 234, 237–38 (1968) (announcing
collateral consequences doctrine). Assuming without
deciding that the collateral consequences doctrine applied, we
held that the petitioners’ alleged collateral consequences—
travel restrictions, ongoing danger of recapture under the laws
of war and stigma—were insufficient to save their petitions
from mootness. Id. at 18–21.
As in Gul, the Government has submitted a declaration
explaining that, when it transferred Hamidullah, it
“relinquish[ed] all legal and physical custody and control”
over him to the government of Pakistan. Supplemental Br. for
Resp’ts-Appellees, Ex. 1, Decl. of Paul Lewis, Special Envoy
for Detainee Transfers ¶ 3, Hamidullah v. Obama, No. 12-
5410 (D.C. Cir. Nov. 27, 2013) (Lewis Declaration). The
Government therefore contends that he is identically situated
to the petitioners in Gul and his appeal must be dismissed.
Hamidullah contests the Lewis Declaration, arguing that we
must remand to the district court to determine whether “the
14
United States has imposed transfer terms and conditions that
create[] a form of constructive United States custody after
transfer.” Supplemental Br. of Appellants 7–8, Hamidullah v.
Obama, No. 12-5410 (D.C. Cir. Nov. 27, 2013) (emphasis
omitted).
Although in Gul we credited the Government’s
declaration that it transferred both petitioners “entirely to the
custody and control of the receiving government,” Gul, 652
F.3d at 18 (quotation marks and brackets omitted), the district
court first examined those declarations and credited them over
the petitioners’ contrary allegations, In re Petitioners Seeking
Habeas Corpus Relief in Relation to Prior Detentions at
Guantanamo Bay, 700 F. Supp. 2d 119, 127–29 (D.D.C.
2010). In this appeal, however, we lack the benefit of the
district court’s examination of the evidence in the first
instance. We think it unwise to decide our jurisdiction when
it turns in part on unresolved factual questions. See Prakash v.
Am. Univ., 727 F.2d 1174, 1179–80, 1183 (D.C. Cir. 1984);
Marshall v. Local Union No. 639, Int’l Bhd. of Teamsters,
593 F.2d 1297, 1301 (D.C. Cir. 1979); see also Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an
issue not passed upon below.”). We therefore remand
Hamidullah’s petition to the district court for the limited
purpose of determining whether he is in the sole custody of
the government of Pakistan. 5
5
We do not mean to say that the Lewis Declaration is
insufficient to settle the mootness question. Hamidullah bears the
burden of adducing facts sufficient to show that his case is not
moot. Gul, 652 F.3d at 21 (quoting Spencer, 523 U.S. at 11); see
also McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S.
178, 189 (1936) (Hughes, C.J.) (“[The plaintiff] must allege in his
pleading the facts essential to show jurisdiction.”). If the district
15
III
To decide whether the Appellants have any right under
the Suspension Clause, we apply Boumediene’s three-factor
test. We address each factor in turn. 6
A. Citizenship and Status
We first consider the “citizenship and status” of the
Appellants. In Boumediene, the petitioners were “aliens
designated as enemy combatants and detained” by the United
States but they disputed that designation. See Boumediene,
553 U.S. at 732, 766. The appellants in Al Maqaleh II were
identically situated and we held that this prong of the first
factor weighed in favor of extending the protection of the
Suspension Clause to Bagram. Al Maqaleh II, 605 F.3d at 96.
The Appellants now argue, however, that their citizenship and
status distinguish them from Boumediene and Al Maqaleh II
such that this prong now supports their argument for
extension of the Suspension Clause more strongly than
before. Their arguments require us to define the meaning of
“citizenship and status” under Boumediene.
Like the Boumediene petitioners and the Al Maqaleh II
appellees, the Appellants in these appeals are aliens detained
court determines that Hamidullah’s evidence fails to impugn the
Lewis Declaration’s accuracy, we believe that declaration would
suffice to establish that Pakistan is not detaining Hamidullah on the
United States’s behalf. See Gul, 652 F.3d at 18 & n.*; Kiyemba v.
Obama (Kiyemba II), 561 F.3d 509, 515 n.7 (D.C. Cir. 2009).
6
Both Boumediene and Al Maqaleh II treat the “citizenship and
status” and “adequacy of the process” prongs of the first factor as
analytically distinct and therefore we do as well.
16
as enemy combatants. 7 Appellant Amanatullah contends that,
although he is an alien, his Pakistani citizenship is relevant
because, as a Pakistani citizen, he is not a citizen of an enemy
nation. His specific alien citizenship is not relevant, however,
because the only relevant citizenship under Boumediene is
American citizenship. In Boumediene all of the petitioners
were “foreign nationals, but none [was] a citizen of a nation
[then] at war with the United States.” Boumediene, 553 U.S.
at 734. The Court accorded this observation no weight.
Instead, it focused on the fact that the “[p]etitioners, like those
in Eisentrager, [we]re not American citizens.” Boumediene,
553 U.S. at 766. Al Maqaleh II also focused exclusively on
whether the detainees were U.S. citizens or aliens. It
elucidated the analytical significance of the “citizenship”
prong by referencing the settled authority according U.S.
citizens more robust constitutional protections than
nonresident aliens. Al Maqaleh II, 605 F.3d at 95–96 (quoting
United States v. Verdugo-Urquidez, 494 U.S. 259, 273
(1990)). But the applicability of constitutional protections has
never turned on the specific citizenship of an alien; ceteris
paribus, a nonresident Briton is no more entitled to invoke the
7
At the outset, we note that the Supreme Court did not explain
the significance of a detainee’s alienage or enemy-combatant
designation. Although we held in Al Maqaleh II that the
petitioners’ citizenship and status weighed in favor of extending the
Suspension Clause, Boumediene did not so hold. Boumediene held
only that the petitioners’ challenge to the Government’s designation
put them in a stronger position than the Eisentrager petitioners,
who apparently did not “contest . . . the Court’s assertion that they
were enemy aliens.” Boumediene, 553 U.S. at 766 (quotation marks
and brackets omitted). We need not decide whether some status
other than “enemy combatant” would affect the Boumediene
analysis because we conclude that the Appellants are identically
situated to the petitioners in Boumediene.
17
rights of the Constitution than a nonresident Pakistani. We
therefore conclude that “citizenship” under Boumediene asks
only whether the detainee is a U.S. citizen or an alien.
Because Appellant Amanatullah is an alien, this prong weighs
no more in his favor than it did for the detainees in
Boumediene and Al Maqaleh II. 8
Although the Appellants are designated as enemy
combatants, they argue that characteristics other than the
designation are relevant to the “status” prong of the first
Boumediene factor. In so arguing, the Appellants sorely
misread Boumediene. “Status” does not refer to a detainee’s
individual characteristics but instead to the designation
8
Amanatullah’s argument might carry more weight if the basis
of his detention were his citizenship. Under the Alien Enemy Act,
Act of July 6, 1798, ch. 66, § 1, 1 Stat. 577 (codified at 50 U.S.C.
§ 21 (2006)), the President may summarily detain any person who
is a citizen of a nation with which the United States is at war. See,
e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952); Ludecke
v. Watkins, 335 U.S. 160, 164 (1948); Brown v. United States, 12
U.S. (8 Cranch) 110, 126 (1814) (Marshall, C.J.) (stating that Alien
Enemy Act “confers on the president very great discretionary
powers respecting [alien enemies’] persons”); Citizens Protective
League v. Clark, 155 F.2d 290, 294 (D.C. Cir. 1946). Under the
AUMF, however, the President may detain only “enemy
combatants”—those persons the President determines are part of a
force engaged in hostilities against the United States. This power is
at once both broader and narrower than the power conferred on the
President by the Alien Enemy Act: it is not limited to any particular
citizenship but mere citizenship does not justify detention. The
distinction results from the nature of the current conflict. Our
enemies fly no flag, don no uniforms, bear no allegiance to any
state and hale from every corner of the globe. They put no stock in
Westphalian notions of sovereignty or citizenship; the AUMF
simply authorizes the President to meet the threat on our enemies’
terms.
18
justifying his detention. The Boumediene court had to
“determine whether petitioners are barred from seeking the
writ or invoking the protections of the Suspension Clause . . .
because of their status, i.e., petitioners’ designation by the
Executive Branch as enemy combatants.” Id. at 739 (emphasis
added). Similarly, the second prong of the first factor is the
“adequacy of the process through which that status
determination was made.” Id. at 769 (emphasis added). The
Supreme Court’s language makes clear that “status” does not
include the detainees’ personal characteristics but is instead
the label, or designation, placed on the detainee by the
President to justify the detainee’s detention.
Applying this definition of “status” to the Appellants’
arguments, we conclude that the Appellants are identically
situated to the Boumediene and Al Maqaleh II petitioners.
The Appellants allege that a Detainee Review Board (DRB)—
a military tribunal periodically convened to determine a
detainee’s status at Bagram—has cleared each of them for
release from Bagram and that this “status” weighs in their
favor. But the Government’s justification for detaining the
Appellants is unchanged: they remain designated as enemy
combatants. Because eligibility for release “is irrelevant to
whether a petitioner may be detained lawfully,” including
when our inquiry is into the propriety of the Government’s
status designation, we do not consider it as part of our
jurisdictional inquiry. Almerfedi v. Obama, 654 F.3d 1, 4 n.3
(D.C. Cir. 2011) (citing Awad v. Obama, 608 F.3d 1, 11 (D.C.
Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011)), cert. denied,
132 S. Ct. 2739 (2012).
Appellant Amanatullah separately contends that his
“actual status” entitles him to release. His argument is more
invective than substance but insofar as we apprehend it, he
appears to contend that the Suspension Clause must extend to
him because the United States has failed to prove that his
19
detention is lawful. Alternatively, he argues that he is at least
entitled to jurisdictional discovery in order to ascertain the
basis of his detention. We reject Appellant Amanatullah’s
argument not only because it is irrelevant under Boumediene
but also because it commits the fallacy of petitio principii.
Every habeas petition disputes the lawfulness of detention;
that dispute is the quintessence of habeas corpus. Munaf v.
Geren, 553 U.S. 674, 693 (2008) (“Habeas is at its core a
remedy for unlawful executive detention.”); INS v. St. Cyr,
533 U.S. 289, 301 (2001) (“At its historical core, the writ of
habeas corpus has served as a means of reviewing the legality
of Executive detention . . . .”). While we may not assess the
lawfulness of detention unless we have jurisdiction, Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998), we
“always have jurisdiction to determine [our] own
jurisdiction,” United States v. Ruiz, 536 U.S. 622, 628 (2002)
(citing United States v. United Mine Workers of Am., 330 U.S.
258, 291 (1947)). Appellant Amanatullah’s proposal is little
more than an end run around the jurisdictional inquiry: if our
jurisdiction turns on the lawfulness of detention, we will
always resolve that question because we always have
authority to decide our jurisdiction. Eliding the lawfulness of
detention with the extraterritoriality inquiry would eliminate
the need for an independent jurisdictional inquiry and result in
universal habeas jurisdiction. We unequivocally reject any
argument espousing the universal extraterritorial application
of the Suspension Clause. Al Maqaleh II, 605 F.3d at 95. 9
9
We also reject the Appellants’ argument that, because they
were not captured in places where the United States is currently at
war, their detention is not necessary to prevent their return to the
battlefield (because it either never existed or no longer exists). In
addition to the reasons already discussed, we reject the argument
because the Boumediene and Al Maqaleh II petitioners were
captured in places in which the United States was not at war and
20
We similarly deny Appellant Amanatullah’s request for
jurisdictional discovery to uncover the factual basis for his
detention. The district court has discretion to allow discovery
if it “could produce [facts] that would affect [its]
jurisdictional analysis.” Goodman Holdings v. Rafidain Bank,
26 F.3d 1143, 1147 (D.C. Cir. 1994). Denying discovery in
the absence of some “specific indication . . . regarding ‘what
facts additional discovery could produce that would affect the
court’s jurisdictional analysis’ ” is a proper exercise of that
discretion. Cheyenne Arapaho Tribes of Okla. v. United
States, 558 F.3d 592, 596 (D.C. Cir. 2009) (brackets omitted)
(quoting Mwani v. bin Laden, 417 F.3d 1, 17 (D.C. Cir.
2005)); see also Rules Governing Section 2254 and 2255
Cases in the U.S. District Courts, R. 6(a), 28 U.S.C. foll.
§ 2254 (2006 & Supp. III 2010) (discovery permitted in
habeas proceedings for good cause shown); Bracy v. Gramley,
520 U.S. 899, 904 (1997) (discussing discovery standard
under the Rules); Aguayo v. Harvey, 476 F.3d 971, 976 (D.C.
Cir. 2007) (stating that the Rules apply to section 2241
proceedings pursuant to Rule 1(b)). Discovery regarding the
lawfulness of Appellant Amanatullah’s detention cannot
advance our jurisdictional inquiry because it is irrelevant to
that inquiry. The district court therefore did not abuse its
discretion in denying discovery on that question. See United
States v. Gale, 314 F.3d 1, 6 (D.C. Cir. 2003) (citing Bracy,
that fact played no role in either court’s analysis. See Al Maqaleh
II, 605 F.3d at 87 (noting that petitioners were captured in Pakistan
and Thailand); Khalid v. Bush, 355 F. Supp. 2d 311, 316 (D.D.C.
2005) (noting that some Boumediene petitioners were captured in
Bosnia and Pakistan); In re Guantanamo Detainee Cases, 355 F.
Supp. 2d 443, 446 (D.D.C. 2005) (noting that other Boumediene
petitioners were captured in Gambia, Zambia, Bosnia and
Thailand).
21
520 U.S. at 909) (holding that denial of discovery in habeas
proceedings is reviewed for abuse of discretion).
B. Adequacy of the Process
We next consider “the adequacy of the process through
which that status determination was made.” Boumediene, 553
U.S. at 766. At the time of Boumediene, Combatant Status
Review Tribunals (CSRTs) were used pursuant to the
Secretary’s order to determine whether Guantanamo detainees
were properly designated as enemy combatants. Boumediene,
553 U.S. at 733; see also Memorandum from Paul Wolfowitz,
Deputy Secretary of Defense, Re Order Establishing
Combatant Status Tribunal, to the Secretary of the Navy (July
7, 2004), available at http://www.defense.gov/news/
jul2004/d20040707review.pdf. The Supreme Court
concluded that the use of CSRTs to determine a detainee’s
status weighed in favor of extending the Suspension Clause
because they “[we]re far more limited, and . . . f[e]ll well
short of the procedures and adversarial mechanisms that
would eliminate the need for habeas corpus review.” Id. at
767. This reasoning is the same used by the Court to
determine whether the CSRTs violated the Suspension Clause
after it decided that the Suspension Clause applied and is thus
slightly circular—an alien detained abroad is more likely to
have a right under the Suspension Clause if the United States
is violating his Suspension Clause right. We distill from the
Supreme Court’s discussion the following principle: the less
closely a propriety-of-detention determination resembles
traditional habeas review, the more likely the Suspension
Clause applies.
In Al Maqaleh II, Unlawful Enemy Combatant Review
Boards (UECRBs) created by order of the Secretary of
Defense had determined the status of Bagram detainees. We
held that because the UECRB afforded “even less protection
22
to the rights of detainees in the determination of status than
was the case with the CSRT,” this prong weighed in favor of
extending the Suspension Clause to Bagram detainees. Al
Maqaleh II, 605 F.3d at 96. In other words, because UECRB
procedures resembled traditional habeas procedures less than
did the CSRT procedures in Boumediene, the “adequacy of
process” prong weighed more heavily in favor of extending
the Suspension Clause to Bagram. Id. After Al Maqaleh I, the
Defense Department replaced the UECRB with the DRB. We
declined to consider the DRB procedures in Al Maqaleh II,
however, because no DRB had yet determined the status of
each of the Al Maqaleh II appellees. Id. at 96 n.4. Here,
however, separate DRBs have determined the status of each
Appellant so we now consider the adequacy of those
procedures.
The Appellants argue that the DRB procedures are still
insufficient substitutes for habeas review and provide fewer
protections than the CSRT did. Whatever the CSRTs’
protections may have been, the DRB procedures are
undoubtedly more akin to traditional habeas proceedings than
were the UECRB procedures. The Appellants conceded as
much in district court. See Al Maqaleh III, 899 F. Supp. 2d at
24. For example, detainees are now entitled to a personal
representative and may call witnesses, proffer evidence and
investigate potentially exculpatory information, none of
which the UECRBs permitted. Even if the DRB still falls
short of the CSRT procedures, they more closely resemble
habeas review than the UECRB procedures. Accordingly,
this factor weighs less in the Appellants’ favor than it did in
Al Maqaleh II. 10
10
The Al Maqaleh II Appellants complain that even if the DRB
procedures are facially more favorable to the detainees, the
Government’s application of those procedures effectively leaves the
23
C. The “Nature” of Bagram
The second factor in the Boumediene analysis is “the
nature of the sites where apprehension and then detention
took place.” Boumediene, 553 U.S. at 766. Boumediene held
that Guantanamo’s location outside the United States, like
Landsberg Prison’s location, weighed against extending the
Suspension Clause there. Id. at 768. But, unlike at
Guantanamo, U.S. control at Landsberg “was neither absolute
nor indefinite.” Id. The United States answered to its Allies
for its administration of Landsberg. Id. By contrast, “the
United States is . . . answerable to no other sovereign for its
acts” at Guantanamo. Id. at 770. Moreover, the United States
did not plan a long-term occupation of Germany, meaning the
United States’s control over Landsberg was only temporary.
Id. at 768. “Guantanamo Bay, on the other hand, is no
transient possession. In every practical sense Guantanamo is
UECRBs intact. Specifically, they assert that, although DRB
procedures afford detainees an opportunity to call witnesses, they
have been denied that opportunity. They cite as evidence their
counsel’s declaration that the Department of Defense denied her the
opportunity to testify before a DRB either by telephone or in
person. The Government disputed this claim in district court and
submitted an affidavit from a Defense Department official declaring
that the United States denied the Al Maqaleh II Appellants’
submitted request to have their counsel testify in person but did not
deny them the opportunity to have their counsel testify by
telephone. When the Al Maqaleh II Appellants learned that their
counsel could not testify in person, they refused to participate in the
proceedings and informed their personal representative that they did
not want their counsel to testify by telephone. The district court
resolved this factual dispute in the Government’s favor, see Al
Maqaleh III, 899 F. Supp. 2d at 25, and we perceive no error, much
less clear error, in its resolution, see Herbert, 974 F.2d at 198.
24
not abroad; it is within the constant jurisdiction of the United
States.” Id. at 768–69.
In Al Maqaleh II, we concluded that Bagram is far more
similar to Landsberg than to Guantanamo. We explained:
While it is true that the United States holds a leasehold
interest in Bagram, and held a leasehold interest in
Guantanamo, the surrounding circumstances are
hardly the same. The United States has maintained its
total control of Guantanamo Bay for over a century,
even in the face of a hostile government maintaining
de jure sovereignty over the property. In Bagram,
while the United States has options as to duration of
the lease agreement, there is no indication of any
intent to occupy the base with permanence, nor is
there hostility on the part of the “host” country.
Therefore, the notion that de facto sovereignty extends
to Bagram is no more real than would have been the
same claim with respect to Landsberg in the
Eisentrager case.
Al Maqaleh II, 605 F.3d at 97.
The Appellants argue that Al Maqaleh II no longer
controls our analysis because new evidence demonstrates that
the United States now intends to permanently occupy
Bagram. Although their argument is exceptionally difficult to
parse, the Appellants appear to contend that (1) the transfer of
Afghan prisoners, but not the Appellants, to Afghan custody
suggests that the United States intends to permanently hold
them; (2) because the war undertaken pursuant to the AUMF
may continue in perpetuity, and in any event far beyond the
end of U.S. operations in Afghanistan, the United States
intends to detain the Appellants indefinitely; and, (3) a new
agreement between the United States and Afghanistan
25
indicates that the United States will remain in Afghanistan
indefinitely.
The Appellants misapprehend the import of the second
factor; it calls for an examination of the extent of control over
the physical situs of detention and the permanence of that
control. Boumediene, 553 U.S. at 768; Al Maqaleh II, 605
F.3d at 96–97. The indefiniteness of the United States’s
control over the place of detention, not over the prisoners, is
the relevant issue. Whether the United States asserts authority
to detain the Appellants indefinitely under the AUMF is
relevant only if evidence demonstrates that the United States
intends to do so at Bagram. As we explain below, no such
evidence exists.
The Government in Al Maqaleh II represented that it had
no intention of remaining in Afghanistan permanently or of
establishing a permanent base or prison at Bagram. We took
the Government at its word. Al Maqaleh II, 605 F.3d at 97.
Subsequent events have confirmed, not undermined, the
Government’s declared intention. The 2012 MOU provided
for the eventual transfer of all Afghan detainees and U.S.
detention facilities to Afghanistan. The United States has
delivered on its promise, transferring both the DFIP and all
Afghan detainees to Afghanistan earlier this year. DEP’T OF
DEFENSE, PROGRESS TOWARD SECURITY AND STABILITY IN
AFGHANISTAN 139–40 (July 2013), available at http://
www.defense.gov/pubs/Section_1230_Report_July_2013.pdf.
The United States also recently transferred one of the
Appellants in these appeals to his home country. See supra
Section II.B. Moreover, the United States and Afghanistan
recently entered into an agreement in which Afghanistan
promised to “provide U.S. forces continued access to and use
of Afghan facilities through 2014” while the United States
“reaffirmed that it does not seek permanent military facilities
26
in Afghanistan.” Enduring Strategic Partnership Agreement
(ESPA), art. III, ¶ 6, U.S.-Afg., May 2, 2012, JA 747.
We do not suggest that this evidence affirmatively
establishes that the United States will transfer control of
Bagram by the end of 2014 nor does our decision rest on the
assumption that such a transfer will occur in 2014 or at any
other specific future date. The year 2014 is not a “sell by”
date after which this factor weighs in the Appellants’ favor.
We view this evidence merely as support for the conclusion
we reached in Al Maqaleh II that American control over
Bagram and its detention facilities lacks the permanence of
U.S. control over Guantanamo. See Al Maqaleh II, 605 F.3d
at 97.
The Appellants nevertheless contend that the ESPA
suggests that the United States intends to remain at Bagram
permanently. They argue that the ESPA “contemplates that
the US [sic] will maintain a military presence in Afghanistan
through at least 2024.” al-Maqaleh Br. 38 (emphasis in
original). We reject the Appellants’ disingenuous reading of
the ESPA. The only reference to the year 2024 in that
document is the provision that the ESPA “shall remain in
force until the end of 2024.” ESPA, art. VII, ¶ 1, JA 752.
Although the ESPA contemplates that a Bilateral Security
Agreement may permit U.S. forces to remain in Afghanistan
after 2014, nothing in the ESPA so provides. 11 Accordingly,
11
We are aware that a recently released draft of the Bilateral
Security Agreement grants the United States authority to maintain a
military facility at Bagram beyond 2014. We can only guess
whether the agreement will ever enter into force so it does not alter
our analysis. See Tim Craig & Karen DeYoung, Security Pact with
Afghans Cast into Doubt, WASH. POST, Nov. 26, 2013, at A1
(documenting significant obstacles to finalization of agreement).
27
the ESPA gives us “no indication of any intent to occupy the
base with permanence.” Al Maqaleh II, 605 F.3d at 97.
D. Practical Obstacles
1
Finally, we examine “the practical obstacles inherent in
resolving the prisoner’s entitlement to the writ.” Boumediene,
553 U.S. at 766. In Boumediene, the Court explained the
significance of this factor by reference to the facts of
Eisentrager:
When hostilities in the European Theater came to an
end, the United States became responsible for an
occupation zone encompassing over 57,000 square
miles with a population of 18 million. In addition to
supervising massive reconstruction and aid efforts the
American forces stationed in Germany faced potential
security threats from a defeated enemy. In retrospect
the post-War occupation may seem uneventful. But at
the time Eisentrager was decided, the Court was right
to be concerned about judicial interference with the
military’s efforts to contain “enemy elements, guerilla
fighters, and ‘werewolves.’ ”
Id. at 769–70 (citations omitted) (quoting Eisentrager, 339
U.S. at 784). 12 “[C]ontain[ing] enemy elements, guerilla
fighters, and werewolves,” however, was not the Eisentrager
Court’s only concern:
12
The “werewolves” noted in Eisentrager reference a nascent
guerrilla operation planned by the Nazis to resist Allied occupation
of Germany. See generally PERRY BIDDISCOMBE, WERWOLF!: THE
HISTORY OF THE NATIONAL SOCIALIST GUERRILLA MOVEMENT,
1944–1946 (1998).
28
The writ, since it is held to be a matter of right, would
be equally available to enemies during active
hostilities as in the present twilight between war and
peace. Such trials would hamper the war effort and
bring aid and comfort to the enemy. They would
diminish the prestige of our commanders, not only
with enemies but with wavering neutrals. It would be
difficult to devise more effective fettering of a field
commander than to allow the very enemies he is
ordered to reduce to submission to call him to account
in his own civil courts and divert his efforts and
attention from the military offensive abroad to the
legal defensive at home. Nor is it unlikely that the
result of such enemy litigiousness would be a conflict
between judicial and military opinion highly
comforting to enemies of the United States.
Eisentrager, 339 U.S. at 779. In Boumediene, the Supreme
Court found no “[s]imilar threats . . . apparent” in
adjudicating habeas petitions arising from Guantanamo.
Boumediene, 553 U.S. at 770. Unlike in Eisentrager, “[t]he
Government present[ed] no credible arguments that the
military mission at Guantanamo would be compromised if
habeas corpus courts had jurisdiction to hear the detainees’
claims.” Id. at 769. Moreover, “[t]here [was] no indication . .
. that adjudicating a habeas corpus petition would cause
friction with the host government.” Id. at 770.
In Al Maqaleh II, we concluded that the circumstances at
Bagram compelled an opposite conclusion. Emphasizing
Boumediene’s suggestion that its outcome may have been
different “ ‘if the detention facility were located in an active
theater of war,’ ” Al Maqaleh II, 605 F.3d at 98 (emphasis
omitted) (quoting Boumediene, 553 U.S. at 770), we held that
the practical concerns identified in Eisentrager “are more
relevant to the situation at Bagram than they were at
29
Landsberg” such that this factor “weigh[ed] overwhelmingly
in favor of the position of the United States,” id. at 97, 98.
Whereas Landsberg Prison stood within the land of a defeated
enemy, “Bagram remains in a theater of war” against a
formidable and determined foe. Id. at 98. If the adjudication
of habeas petitions would have interfered with the occupation
of a pacified country, a fortiori habeas proceedings would
interfere with combat operations on the battlefield. Finally,
unlike at Guantanamo, “[t]he United States holds the
detainees pursuant to a cooperative arrangement with
Afghanistan on territory as to which Afghanistan is
sovereign.” Id. at 99. Although we expressed uncertainty
about whether extending habeas jurisdiction to Bagram might
disrupt that arrangement, we recognized the risk in extending
our jurisdiction without being able to “say with certainty what
the reaction of the Afghan government would be.” Id.
The Government represents that the United States
remains at war in Afghanistan. Appellants do not dispute the
Government’s claim, nor can they. Whether an armed
conflict has ended is a question left exclusively to the political
branches. See Ludecke v. Watkins, 335 U.S. 160, 168 (1948);
The Three Friends, 166 U.S. 1, 63 (1897); The Protector, 79
U.S. (12 Wall.) 700, 701–02 (1871); The Prize Cases, 67 U.S.
(2 Black) 635, 670 (1862). Not only have the political
branches yet to announce an end to the war in Afghanistan,
but the President has repeatedly declared that it is ongoing.
The President’s Weekly Address, 2013 DAILY COMP. PRES.
DOC. 13 (Jan. 12, 2013); The President’s Address to the
Nation on Military Operations in Afghanistan from Bagram
Air Base, Afghanistan, 2012 DAILY COMP. PRES. DOC. 336
(May 2, 2012).
Because the war in Afghanistan continues, the war-borne
practical obstacles identified in Eisentrager still obtain at
Bagram. The United States in Afghanistan is not involved
30
merely in administering occupied territory and containing
scattered guerilla fighters but rather in quelling a large-scale
insurgency against the government of a regional ally. If
preserving the “prestige of our commanders” and avoiding
“conflict between judicial and military opinion” were
significant goals in administering an occupied land,
Eisentrager, 339 U.S. at 779, they are even more important in
an active war zone. Allowing prisoners previously declared
by the U.S. military to be enemy combatants to force military
commanders into civilian court may give our allies reason to
doubt the authority of, and promises made by, those
commanders. Orders issued by judges thousands of miles
away releasing those prisoners would undercut the
commanders’ authority all the more. Undermining the
prestige and authority of U.S. commanders may cause
“wavering neutrals” to throw their lot in with our enemies if
they believe that our commanders lack the authority to, for
example, provide the promised level of protection against
those enemies. As in Eisentrager, we simply cannot discern
how “allow[ing] the very enemies [a commander] is ordered
to reduce to submission to call him to account in his own civil
courts” would not “hamper the war effort and bring aid and
comfort to the enemy.” Id. Our conclusion is therefore
unchanged: the practical obstacles posed by hearing habeas
petitions from a war zone weigh “overwhelmingly” against
extending the Suspension Clause to Bagram.” Al Maqaleh II,
605 F.3d at 97. 13
13
Appellant Amanatullah suggests that our analysis should turn
on the acuteness of the danger posed to a particular installation by
the war, arguing that the practical obstacles posed by armed combat
are less extreme at Bagram than at a forward-operating base. We
do not premise constitutional distinctions on the inconstancies of
shifting battle lines or the burst of mortar shells. Instead, we
conclude that the practical obstacles identified in Eisentrager and
31
2
Although the state of war in Afghanistan is unchanged,
the Appellants argue that new evidence demonstrates the
practical obstacles identified in Al Maqaleh II are not as grave
as we previously believed. They allege that the United States
has participated in Afghan criminal proceedings at the JCIP
by mentoring Afghan personnel and collecting evidence for
those trials. They contend that this participation demonstrates
that habeas cases would not divert “ ‘efforts and attention
from the military offensive.’ ” al-Maqaleh Br. 19 (quoting
Eisentrager, 339 U.S. at 779).
The Appellants miss Eisentrager’s point. The question is
not whether, in the abstract, U.S. armed forces are capable of
participating in judicial proceedings. We do not doubt that,
with sufficient resources, U.S. forces could ably participate in
habeas proceedings. The question is whether their
participation would “divert [their] efforts and attention from
the military offensive abroad to the legal defensive at home.”
Eisentrager, 339 U.S. at 779 (emphasis added). The JCIP
proceedings are irrelevant to that inquiry because, unlike in
habeas proceedings, U.S. assistance in Afghan criminal
proceedings is a part of the “military offensive abroad.” One
of the chief objectives of the U.S. mission in Afghanistan is to
Al Maqaleh II obtain so long as the place of detention lies within an
active theater of war. The judiciary as an institution is wholly
incapable of making Appellant Amanatullah’s proposed
installation-by-installation factual inquiry. We are not the war-
fighting branch of our government. Drawing these distinctions
would carry us far afield from the “core areas of judicial
competence” and intensify the likelihood of error where the cost of
judicial error could be catastrophically high. Lebron v. Rumsfeld,
670 F.3d 540, 552 (4th Cir. 2012); cf. Vance v. Rumsfeld, 701 F.3d
193, 200 (7th Cir. 2012) (en banc).
32
deny our enemies a haven by building an Afghan state
capable of controlling its territory. See, e.g., The President’s
Remarks at the United States Military Academy at West
Point, New York, 2009 DAILY COMP. PRES. DOC. 962, at 3–4
(Dec. 1, 2009); The President’s Remarks to the American
Enterprise Institute for Public Policy Research, 43 WEEKLY
COMP. PRES. DOC. 165, 166–68 (Feb. 15, 2007). Part of our
state-building enterprise is the fostering of a judiciary capable
of administering Afghanistan’s criminal laws. See, e.g., DEP’T
OF DEFENSE, PROGRESS TOWARD SECURITY AND STABILITY IN
AFGHANISTAN 74–78 (Apr. 2012), available at
http://www.defense.gov/pubs/pdfs/Report_Final_SecDef_04_
27_12.pdf. Whether to devote available military resources to
the support of the Afghan criminal justice system or to the
pursuit of other objectives is the President’s choice to make.
His wartime resource-allocation decisions do not open the
door to the diversion of those resources “from the military
offensive abroad to the legal defensive at home.” Eisentrager,
339 U.S. at 779.
Eisentrager firmly supports our conclusion. During its
occupation of Germany, the United States participated in a
host of military tribunals convened to try former Nazi
officials for war crimes. The United States convened its own
military commissions in Germany and also participated in the
International Military Tribunal (IMT), an international body
convened by agreement among the Allied Powers. See
generally Charles Fairman, Some New Problems of the
Constitution Following the Flag, 1 STAN. L. REV. 587 (1949);
see also Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis (London
Agreement), August 8, 1945, 59 Stat. 1544, 8 U.N.T.S. 279.
Suffice it to say that U.S. involvement in these tribunals went
far beyond mere mentoring. See generally ROBERT CONOT,
JUSTICE AT NUREMBERG (1993); see also Charter of the
33
International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544,
1546, 82 U.N.T.S. 279. Notwithstanding the resources
expended in these tribunals, the Supreme Court concluded
that habeas proceedings would divert “efforts and attention
away from the military offensive abroad to the legal defensive
at home.” Eisentrager, 339 U.S. at 779. We think the reason
for this is simple: military commissions are a part of the war
effort, see Madsen v. Kinsella, 343 U.S. 341, 360 (1952)
(military commissions necessary for “occupying power to
discharge its responsibilities fully”); In re Yamashita, 327
U.S. 1, 11–12 (1946) (military commissions are “important
incident to conduct of war”), whereas habeas proceedings are
not. Because the Nuremberg trials played no role in
Eisentrager, the JCIP trials play no role here.
The Appellants separately attack another practical
obstacle we identified in Al Maqaleh II, to wit, the disruption
of the relationship between the U.S. and Afghan governments
potentially created by extension of the Suspension Clause to
Bagram. Al Maqaleh II¸ 605 F.3d at 99. The Appellants claim
to have evidence that should allay our concern: a letter,
addressed to the Appellants’ counsel and written at their
behest, signed by the Afghan President’s Chief of Staff,
Abdul Karim Khurram. The letter, they argue, establishes
that the Afghan government prefers the extension of
Suspension Clause jurisdiction. In the letter, the author
thanks the Appellants’ counsel for their visit and writes:
The Government of Afghanistan was never been [sic]
informed of the transfer and imprisonment of [the
Appellants]. We are unaware of the number of foreign
nationals caught outside Afghanistan and brought to
Bagram. We have no desire for them to remain on our
territory. Furthermore, the Government of
Afghanistan favors these individual [sic] having
access to a fair judicial process and adjudication of
34
their case [sic] by a competent court. I hope this
conformation of the Afghan Government position will
allow you to pursue your efforts on behalf of
[Appellant] al-Bakri.
Letter from Abdul Karim Khurram, Chief of Staff to the
President of the Islamic Republic of Afg., to Ramzi Kassem
and Tina Foster (Sept. 19, 2012), JA 899.
The district court concluded that the letter did not
represent the Afghan government’s formal policy on the
detention of non-Afghan enemy combatants because it was a
private letter written to a private party. Al Maqaleh III, 899 F.
Supp. 2d at 20; Amanatullah, 904 F. Supp. 2d at 56. The
district court’s assessment seems reasonable but the letter
raises deeper concerns. We recently made clear that the
President alone conducts the nation’s foreign policy and it is
to him that we turn for authoritative statements on our
relations with foreign powers. See Zivotofsky ex rel.
Zivotofsky v. Sec’y of State, 725 F.3d 197, 211, 218–219
(D.C. Cir. 2013); see also United States v. Curtiss-Wright
Exp. Corp., 299 U.S. 304, 319 (1936) (“The President is the
sole organ of the nation in its external relations, and its sole
representative with foreign nations.” (quotation marks
omitted)); cf. Munaf, 553 U.S. at 700–02. Trying to divine the
letter’s meaning would carry us beyond the bounds of our
authority and into the exclusive “ ‘province . . . of the
Executive.’ ” Dep’t of Navy v. Egan, 484 U.S. 518, 529
(1988) (quoting Haig v. Agee, 453 U.S. 280, 293–94 (1981)).
Constitutional concerns aside, we also lack the
institutional wherewithal to assign to the letter its proper
weight. Foreign affairs are complicated and require a political
adroitness courts simply cannot supply. See Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 386 (2000) (noting that
courts lack competence to deal with “nuances of the foreign
35
policy of the United States” (quotation marks omitted));
Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159,
194 (1983) (“This Court has little competence in determining
precisely when foreign nations will be offended by particular
acts . . . .”). This case proves the point. Contemporaneously
with the writing of the letter, other Afghan officials
apparently issued public statements on Afghanistan’s detainee
policy which conflict with the letter’s rather cryptic statement.
See Al Maqaleh III, 899 F. Supp. 2d at 20 & n.4 (citing
Charlie Savage & Graham Bowley, U.S. to Retain Role as a
Jailer in Afghanistan, N.Y. TIMES, Sept. 6, 2012, at A1
(describing statements of high-ranking Afghan official calling
for United States to continue to detain non-Afghan
detainees)). In light of this apparent conflict, how would we
decide what Afghanistan’s policy in fact is? The short answer
is we are foreclosed from doing so. Because we lack the
competence and, more importantly, the power to negotiate the
subtleties of international politics, we run the very high risk of
misstating Afghanistan’s formal policy and “embarrass[ing]
the executive arm of the government in conducting foreign
relations.” Ex parte Republic of Peru, 318 U.S. 578, 588
(1943). The facts of this case confirm the wisdom of the
Framers’ decision to make the President the leader, and the
judiciary a follower, on foreign policy issues. See United
States v. Lee, 106 U.S. (16 Otto) 196, 209 (1882); United
States v. Palmer, 16 U.S. (3 Wheat.) 610, 634–35 (1818)
(Marshall, C.J.). 14
14
Even if the Appellants correctly characterize the letter, our
analysis of the third factor would be unchanged. We did not
premise our analysis in Al Maqaleh II on a belief that extending the
Suspension Clause to Bagram would in fact disrupt the U.S.-
Afghan diplomatic relationship. We held only that our uncertainty
counseled hesitation. Al Maqaleh II, 605 F.3d at 99. Even if we
were no longer uncertain about the implications of extending the
36
3
The Appellants complain that the district court weighed
the third factor too heavily in its analysis. See al-Maqaleh Br.
15 (describing district court’s use of third factor as “trump
card in the jurisdictional analysis” (quotation marks omitted)).
But the district court gave no more weight to the factor than
did we in Al Maqaleh II. Because the facts did not relevantly
change after Al Maqaleh II, the district court properly applied
our precedent.
Ultimately, then, the Appellants’ quarrel is with how we
weigh the third factor. They argue that by emphasizing the
third factor over the other two, we abandon our watchtower
on the wall separating the powers of our government. This
argument is meritless because we are bound by Al Maqaleh
II’s weighing of the factors and we, like the district court,
have followed our precedent here. Even if we could revisit Al
Maqaleh II, however, we think the Appellants’ argument
entirely misplaced in the context of petitions arising from a
war zone. The Supreme Court has held that the Suspension
Clause is a cornerstone of that wall, Boumediene, 553 U.S. at
743–46, and, in particular, a redoubt against executive power
run amok, see Lonchar v. Thomas, 517 U.S. 314, 322 (1996).
But in this case, we must place another separation-of-powers
concern on the scale. The prosecution of our wars is
committed uniquely to the political branches and we rarely
scrutinize it. Egan, 484 U.S. at 529 (“[U]nless Congress has
specifically provided otherwise, courts traditionally have been
reluctant to intrude upon the authority of the Executive in
military and national security affairs.”); Haig, 453 U.S. at 292
(“Matters intimately related to foreign policy and national
protection of the writ, Afghanistan’s current status as a war zone is
sufficient to tilt the third factor strongly in the Government’s favor.
37
security are rarely proper subjects for judicial intervention.”);
Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976) (“[T]he
conduct of foreign relations [and] the war power . . . . are so
exclusively entrusted to the political branches of government
as to be largely immune from judicial inquiry or interference.”
(quotation marks omitted)); see also Regan v. Wald, 468 U.S.
222, 242 (1984); Oetjen v. Cent. Leather Co., 246 U.S. 297,
302 (1918). Justice Jackson put it best:
[T]he very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions are
wholly confided by our Constitution to the political
departments of the government, Executive and
Legislative. They are delicate, complex, and involve
large elements of prophecy. They are and should be
undertaken only by those directly responsible to the
people whose welfare they advance or imperil. They
are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility and have
long been held to belong in the domain of political
power not subject to judicial intrusion or inquiry.
Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103,
111 (1948). Judicial inquiry into the President’s detention
decisions, which are among his congressionally conferred war
powers, thus raises grave concerns about encroachment on the
President’s authority. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
Boumediene recognized this tension and concluded that,
at Guantanamo, separation-of-powers considerations weigh in
favor of extending the Suspension Clause beyond the
sovereign borders of the United States. Boumediene, 553 U.S.
at 796–98. But Guantanamo does not lie in a theater of war; it
is far removed from the conflicts which produced its inmates.
Id. at 770. Our forces at Bagram, by contrast, are actively
38
engaged in a war against a determined enemy. Like the
Supreme Court, we think this is a critical distinction. See id.
(“[I]f the detention facility were located in an active theater of
war, arguments that issuing the writ would be impracticable
or anomalous would have more weight.” (quotation marks
omitted)). Detention decisions made at Bagram are
inextricably a part of the war in Afghanistan. Reviewing
those decisions would intrude upon the President’s war
powers in a way that reviewing Guantanamo detentions does
not. For that reason, the third factor weighs “overwhelmingly
in favor of the position of the United States.” Al Maqaleh II,
605 F.3d at 97. We take exception, then, to the Appellants’
accusation that we are abandoning our post. To the contrary,
respect for the separation of powers impels us to stay our
hand.
IV
The Appellants once again ask us to consider the
President’s purpose in detaining them at Bagram. Their
argument, given its most generous construction, proceeds as
follows: if the President has a choice to detain an alien at a
location to which the writ runs, 15 but instead chooses to detain
the alien at Bagram (or some other foreign locale) because the
writ does not reach there, he has engaged in impermissible
“manipulation” which weighs in favor of extending the
Suspension Clause to the site of detention. In Al Maqaleh II,
although noting that the Supreme Court’s three factors may
15
We note that there is little reason to question the President’s
choice as a matter of common sense. The four Appellants who
allege a location of capture all allege capture in Asia, including
Pakistan. On its face, the President’s choice to detain in central
Asia aliens captured in that area of the world instead of transporting
them across the globe hardly arouses suspicion.
39
not be “exhaustive” and that evasion “might constitute an
additional factor,” we nevertheless rejected their argument for
two reasons. Al Maqaleh II, 605 F.3d at 98, 99. We first
concluded that the petitioners’ concern was “speculation” and
not “a reality.” Id. at 98. We also found utterly incredible the
suggestion that the President, who detained the petitioners at
Bagram well in advance of the 2008 Boumediene decision,
could have “predict[ed] the Boumediene decision long before
it came down” and made his detention decisions on the basis
of that prediction. Id. at 99.
In these appeals, however, the Appellants claim that their
argument is no longer naked speculation but is supported by
evidence that the President chose to detain them at Bagram in
order to evade habeas review. First, relying on two
conclusory declarations from former Executive Branch
officials, they contend that the United States originally chose
Guantanamo and Bagram as detention sites in part to avoid
judicial review. Second, relying primarily on news reports,
they allege that transfers from Bagram to Guantanamo
declined while transfers to Bagram from Guantanamo
increased after Rasul v. Bush, 542 U.S. 466 (2004) (holding
that federal courts have statutory habeas jurisdiction over
petitions filed by Guantanamo detainees), demonstrating that
the Government detains persons at Bagram in order to avoid
habeas review. Finally, relying on a declaration from an
unrelated case, the Appellants allege that officials within the
Department of Justice discussed detainee transfers and habeas
jurisdiction before Rasul issued, indicating that the Executive
Branch was “deliberating the issues of prisoner transfer and
habeas jurisdiction” prior to Boumediene. al-Maqaleh Br. 45.
We previously expressed our “doubt that [the alleged
manipulation] goes to either the second or third of the
Supreme Court’s enumerated factors.” Al Maqaleh II, 605
F.3d at 98. Today we hold that it does not. The Appellants
40
apparently agree and, seizing on the Supreme Court’s
statement that “at least three factors are relevant in
determining the reach of the Suspension Clause,”
Boumediene, 553 U.S. at 766 (emphasis added), call on us to
make manipulation an “additional factor,” al-Maqaleh Br. 41.
Before deciding this question, we must clearly identify the
species of alleged manipulation. The Appellants do not allege
that they were ever within territory to which the Suspension
Clause runs before being removed from that territory.
Instead, they allege that the United States captured them
beyond the Suspension Clause’s reach and then detained them
beyond it. They do not argue that the United States stripped
them of a right they previously possessed but instead that it
denied them the opportunity to acquire a right.
We decline the Appellants’ request to create a new factor.
Assuming we have authority to create additional factors, these
cases are hardly the ones in which to do it. 16 The Appellants
claim that their evidence moves their claims from speculation
16
When considering whether to create new factors at all,
caution must be our watchword. Boumediene marked the first time
in our constitutional history that aliens held outside the sovereign
territory of the United States were accorded any constitutional
protection. Boumediene, 553 U.S. at 770. In light of that fact, we
cannot read the Court’s statement that “at least three factors are
relevant in determining the reach of the Suspension Clause” as an
invitation for inferior-court innovation. As a novel constitutional
development, we are loath to expand Boumediene’s reach without
specific guidance from the Supreme Court, particularly where
expansion would carry us further into the realm of war and foreign
policy. Restraint is also appropriate here because the evasion
concern was brought to the Supreme Court’s attention in
Boumediene but the Court declined to consider it as a factor. See
Br. Amicus Curiae of the Am. Bar Ass’n in Support of Pet’rs,
Boumediene v. Bush, 553 U.S. 723 (2008), 2007 WL 2456942.
41
to reality. But the line they propose between the two is an
illusion. Their allegations and supporting evidence suggest, at
most, that the President might have considered at some point
in time the reach of the writ as one factor among others in his
decision to detain abroad (not necessarily at Bagram) certain
unidentified detainees. They do not allege, nor do they have
evidence suggesting, that any official ever considered the
reach of the writ in deciding where to detain them. Any alien
detained abroad could rely on the same unparticularized
allegations and evidence to argue for the extension of the
Suspension Clause. 17 If that is all a detainee need do, we
perceive no identifiable limitation on the extraterritorial reach
of our constitutional habeas jurisdiction. Reduced to its core,
the Appellants’ argument becomes an appeal for universal
extraterritorial application of the Suspension Clause. We
again reject any argument tending toward this result. “If it
were the Supreme Court’s intention to declare such a
sweeping application, it would surely have said so.” Al
Maqaleh II, 605 F.3d at 95. 18
17
Indeed, the purported effect of potential habeas jurisdiction
on the President’s detention decisions was debated even before the
Supreme Court’s Boumediene decision. See Al Maqaleh III, 899 F.
Supp. 2d at 24 (noting that assertions of evasion were “well known”
before Al Maqaleh II); see also Joshua L. Dratel, The Legal
Narrative, in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB
xxi–xxii (2005) (pre-Boumediene discussion of Justice Department
memoranda considering effect of executive concern about habeas
jurisdiction on detention policy).
18
Because the Appellants have provided no “specific
indication” that discovery might produce any particularized
evidence of evasion—and effectively concede the existence of non-
evasive reasons for detaining them at Bagram—we conclude that
the district court’s denial of jurisdictional discovery on this
42
Our holding should not be read, however, to suggest that
evasion of habeas review never raises constitutional hackles.
An allegation that an alien detained outside our habeas
jurisdiction was either captured or previously detained within
our habeas jurisdiction would be far more likely to trigger our
Suspension Clause jurisdiction than the allegations here.
“[A]t the absolute minimum, the Suspension Clause protects
the writ ‘as it existed in 1789.’ ” St. Cyr, 533 U.S. at 301
(quoting Felker v. Turpin, 518 U.S. 651, 663–64 (1996)).
English common law fundamentally informs our
understanding of the substantive content of the writ as of
1789. See Boumediene, 553 U.S. at 742, 746–52; McNally v.
Hill, 293 U.S. 131, 136–38 (1934). Of particular importance
is Parliament’s codification of the common law writ in the
Habeas Corpus Act of 1679, 31 Car. 2, c.2 (Eng.). See
Boumediene, 552 U.S. at 742 (explaining influence of Act on
development of writ in the colonies); id.at 845 (Scalia, J.,
dissenting) (same); THE FEDERALIST NO. 83, at 499
(Alexander Hamilton) (Clinton Rossiter ed. 1961); Dallin H.
Oaks, Habeas Corpus in the States—1776–1865, 32 U. CHI.
L. REV. 243, 252 (1965). Subject to certain exceptions,
section 12 of the Habeas Corpus Act forbad the transportation
of any “inhabitant or resi[de]nt” of England or Wales as a
prisoner to “places beyond the seas.” 31 Car. 2, c. 2, § 12
(Eng.); see also Boumediene, 553 U.S. at 845–46 (Scalia, J.,
dissenting); Kiyemba v. Obama (Kiyemba II), 561 F.3d 509,
523 (D.C. Cir. 2009) (Griffith, J., concurring in judgment in
part and dissenting in part); Abdah v. Obama, 630 F.3d 1047,
1049–51 (D.C. Cir. 2011) (Griffith, J., dissenting from denial
of initial hearing en banc).
question was not an abuse of discretion. Cheyenne Arapaho Tribes
of Okla., 558 F.3d at 596.
43
Were a detainee to allege capture by the United States
within our constitutional habeas jurisdiction followed by
transfer to U.S. custody in territory beyond it, his entreaty for
the protection of the Suspension Clause would be much more
compelling than the Appellants’. Cf. Kiyemba II, 561 F.3d at
513 (“[A] potential transfer out of the jurisdiction of the court
is a proper subject of statutory habeas relief . . . .”). A
contrary rule risks rendering the Suspension Clause nugatory
because the President could defeat it at his pleasure by
transporting prisoners to U.S. detention facilities outside the
United States and beyond the reach of our jurisdiction. Here,
however, the Appellants were captured in places to which the
Suspension Clause unquestionably does not run and therefore
never secured a Suspension Clause right requiring our
protection. This form of evasion does not implicate the
concerns that led Parliament to ban the spiriting away of
prisoners beyond the reach of the writ.
Because the Suspension Clause does not run to Bagram,
section 7 of the 2006 MCA does not effect an unconstitutional
suspension of the writ. We therefore affirm the judgments of
the district court in Al Maqaleh III (Nos. 12-5404, 12-5401
and 12-5399) and Amanatullah (No. 12-5407). We remand
Hamidullah (No. 12-5410) for further proceedings consistent
with this opinion.
So ordered.