Amanatullah v. Obama , 904 F. Supp. 2d 45 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AMANATULLAH, et al., )
)
Petitioners, )
)
v. ) 10-cv-536 (RCL)
)
BARACK OBAMA, et al., )
)
Respondents. )
)
MEMORANDUM OPINION
I. INTRODUCTION
Before the Court is the government’s Motion to Dismiss Petitioner Amanatullah’s First
Amended Petition for Habeas Corpus for Lack of Subject Matter Jurisdiction. [ECF No. 10]. For
reasons given below, the Court will GRANT the government’s motion and dismiss
Amanatullah’s petition.
II. BACKGROUND
Amanatullah, a citizen of Pakistan, has been detained by the United States at Bagram
Airfield in Afghanistan (“Bagram”) for several years. See First Am. Pet. for Writ of Habeas
Corpus (“Habeas Pet.”) [ECF No. 9] ¶¶ 1, 11. In 2010, Amanatullah filed a habeas petition in
this Court 1 through his brother Abdul Razaq as his “Next Friend,” and filed an amended petition
in 2011. See generally Habeas Pet. Amanatullah claims that his detention violates his
constitutional right to the Writ of Habeas Corpus as protected by the Suspension Clause of the
1
The case was before Judge Kennedy until his retirement from the bench. [ECF No. 13].
United States Constitution. Habeas Pet. ¶¶ 121–23 (citing U.S. Const. Art. I § 9, cl. 2). 2 He seeks
release from custody or, in the alternative, access to certain procedures, a cessation of all
interrogation and torture and transfer to another facility, as well as other relief. See id. ¶¶ 38–39.
The government moved to dismiss the amended petition, relying heavily on the D.C.
Circuit’s opinion in Al Maqaleh v. Gates (“Al Maqaleh II”), 605 F.3d 84 (D.C. Cir. 2010), which
held that the Suspension Clause did not cover non-U.S. citizen detainees held at Bagram.
Resp’ts’ Mot. To Dismiss (“Resp’t’s Br.”) [ECF No. 10].
Amanatullah’s opposition points to several categories of purportedly “new” evidence—
i.e. evidence that was not part of the record on appeal in Al Maqaleh II—which he argues should
alter the jurisdictional analysis from what the Court of Appeals concluded in Al Maqaleh II.
Pet’rs’ Opp’n at 3 [ECF No. 11]. First, he argues that the commencement of “full-blown civilian
trials of Afghan detainees at Bagram” “belies any previously articulated claim that proximity to
the battlefield renders Article III judicial review impracticable.” Pet’rs’ Opp’n at 7–8. Second, he
argues that the government intends to detain him at Bagram “indefinitely.” Pet’rs’ Opp’n at 8–9.
Third he points out that after Al Maqaleh II, the government replaced the Unlawful Enemy
Combatant Review Board (“UECRB”) procedures, which the Court of Appeals reviewed, with
new Detainee Review Board (“DRB”) procedures now in place and, though he apparently
concedes that these “recent modifications make the DRB slightly less defective than the
UECRB,” he nonetheless insists that these new procedures are “fundamentally flawed” and
2
Petitioner also raises a host of other legal theories. He alleges that his detention constitutes an action beyond the
constitutional authority of the Executive under Article II of the Constitution, Habeas Pet. ¶¶ 124–28; a violation of
Common Law and Statutory Habeas, Habeas Pet. ¶¶ 129–30 (citing 28 U.S.C. § 2241(c)(1) & (c)(3)); a violation of
his Due Process rights, Habeas Pet. ¶¶ 131–34 (citing U.S. Const. amend. V); a violation of his right to counsel and
access to courts, Habeas Pet. ¶¶ 135–37 (citing U.S. Const. amends. V & VI); a violation of Army Regulation 190–8
which he suggests this court is authorized to review under the Administrative Procedures Act, Habeas Pet. ¶¶ 138–
41; and several violations of International Humanitarian and Human Rights Law, Habeas Pet. ¶¶ 142–47. This Court
finds these theories fail and will not address them.
2
“woefully inadequate.” Pet’rs’ Opp’n at 9–10; 15–16. Fourth, he claims that that his own DRB at
Bagram found him eligible for release. Pet’rs’ Opp’n at 9–10.
Fifth, Amanatullah suggests that the government has purposefully used Bagram to evade
judicial review—an attempted manipulation which, he argues, should influence the jurisdictional
analysis. Pet’rs’ Opp’n at 32–38. He cites a variety of documents in support of this assertion, and
requests the opportunity to conduct jurisdictional discovery. Pet’rs’ Opp’n at 34–38.
The government filed a Reply insisting that all of Amanatullah’s “new evidence” either
lacks any “factual basis or is otherwise irrelevant to the constitutional calculus involved in the
jurisdictional question.” Resp’ts’ Reply at 2 [ECF No. 12].
After the briefing on the motion to dismiss was complete, both parties filed notices of
supplemental authority. 3 The government filed notices regarding a Memorandum of
Understanding (“MOU”) entered between the United States and Afghanistan addressing the
transfer of the Bagram detention center to Afghan control, See Resp’ts’ Notice to Court
Regarding the March 9, 2012 MOU [ECF No. 19], and the President’s signing of an agreement
with Afghanistan stating, in part, that it did not “seek permanent military facilities in
Afghanistan,” See Resp’ts’ Supplemental Material [ECF No. 20], as support for its position that
the United States did not intend to occupy Bagram permanently.
Amanatullah responded with a memorandum that reinterpreted these documents, insisting
that they actually “confirm[ed] the United States’ exclusive and continuing control over Bagram
and its detainees, including Petitioner Amanatullah, and the U.S.’s intention and ability to
3
Several of these are not relevant here. Amanatullah filed a notice to bring to this court’s attention a British case
issuing a writ of habeas corpus to another detainee at Bagram. Pet’rs’ Notice of Supplemental Authority [ECF No.
14]. The government filed a notice regarding the National Defense Authorization Act for Fiscal Year 2012, Pub. L.
No. 112–81, which they argued provided statutory support for Amanatullah’s detention, and mandated certain new
procedures that mitigated those concerns. Resp’ts’ Notice to the Court Regarding a New Statute [ECF. No. 15].
Amanatullah responded, arguing that the NDAA did nothing to alter the status quo. Pet’rs’ Resp. to Resp’ts’ Notice
[ECF No. 18]. The Court will not discuss these further, as they do not pertain to the resolution of the question at
issue in this case.
3
exercise such control indefinitely.” Pet’rs’ Resp. to Resp’ts’ Notice [ECF No. 21]; Errata Sheet
[ECF No. 22].
Amanatullah subsequently filed an additional notice, attaching (1) a letter addressed to
the Al Maqaleh counsel signed by the Chief of Staff to the President of Afghanistan favoring
“fair judicial process” for all foreign detainees held at Bagram; (2) a declaration by a Col.
Lawrence B. Wilkerson (Ret.) purporting to support Amanatullah’s theory that the United States
used Bagram to purposefully evade judicial review; (3) a similar declaration from Gelnn Carle, a
retired high-ranking CIA officer; and (4) a declaration from petitioner’s counsel, Tina Foster,
detailing her attempts to meet with another detainee-client and his personal representative and
her unsuccessful attempt to participate in a Detainee Review Board proceeding. Pet’rs’ Notice
[ECF No. 23].
The government responded, arguing that the Wilkerson and Carle declarations are merely
speculative, couched in probabilistic language; that they are based on “what is widely known”
about the evolution of U.S. detention policy over the last decade, including the history of
litigation over the limits of the Suspension Clause, rather than any “actual knowledge from his
prior government position,” See Resp’ts’ Resp. to Pet’rs’ Supplemental Materials at 4–5 [ECF
No. 24-1]; and that Amanatullah’s jurisdictional theory lacks a limiting principle and would
“permit world-wide application of the Suspension Clause.” Id. at 7. As to the letter from the
Afghan President’s Chief of Staff, the government notes that this is a private letter from an
official without authority to speak on behalf of the Afghan government, and that other top
Afghan officials had made contradictory statements. Id. at 9–10. And, with respect to the Foster
declaration, the government challenges the factual accuracy of the account therein, and denies
that there are any “new facts” that directly bear on the pending motion. Id. at 12–13.
4
Finally, Amanatullah filed a response to the government’s response, defending the
relevance of the supplemental evidence they offered. Pet’rs’ Resp. [ECF No. 25] With respect to
the letter from the chief of staff, petitioner insists this is an official policy statement because it is
on official letterhead, bears the seal of the President of the Islamic Republic of Afghanistan and
conveys a “confirmation of the Afghan Government position.” Id. at 2–4. With respect to the
Foster declaration, he insists that the episode she chronicles shows that her client was “arbitrarily
denied reasonably available in-person witnesses at their DRBs.” Id. at 4–7. As to the Wilkerson
and Carle declarations, Amanatullah concedes that their disclosures were limited to public
information about the United States’ purportedly deliberate evasion of judicial review, but argues
that this is only because both are subject to binding non-disclosure obligations. Id. at 7.
III. LEGAL STANDARD
A. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a
complaint, or a claim therein, for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1).
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by
Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that
a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994) (citations omitted). A motion to dismiss for lack of subject matter jurisdiction in
habeas cases, like jurisdictional motions in other civil cases, is subject to review under the
standards of the Federal Rules of Civil Procedure. See Rasul v. Bush, 215 F. Supp. 2d 55, 61
(D.D.C. 2002), aff’d, Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), rev’d on other
5
grounds, Rasul v. Bush, 542 U.S. 466 (2004) (applying Fed. R. Civ. P. 12(b)(1) to the
government’s motion to dismiss a pending habeas petition on jurisdictional grounds).
Pursuant Rule 12(b)(1), the petitioner bears the burden of establishing that the court has
jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182, (1936);
Bernard v. U.S. Dept. of Def., 362 F. Supp. 2d 272, 277 (D.D.C. 2005). “Because subject matter
jurisdiction focuses on the Court’s power to hear a claim, however, the Court must give the
plaintiff’s factual assertions closer scrutiny when reviewing a motion to dismiss for lack of
subject matter jurisdiction than reviewing a motion to dismiss for failure to state a claim upon
which relief can be granted under Rule 12(b)(6).” Id.; see also Grand Lodge of Fraternal Order
of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).
B. Boumediene Factors
This case turns on whether the writ of habeas corpus extends to a noncitizen held by the
United States beyond its sovereign territory. The evolution of the doctrine on the reach of the
Suspension Clause has been reviewed extensively elsewhere and need not be repeated here. See,
e.g., Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). The leading case is
Boumediene v. Bush, where the Supreme Court adopted a three-factor test to determine whether
an alien held abroad will have access to federal courts to file a habeas petition:
(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.
553 U.S. 723, 766 (2008) (holding that federal courts had jurisdiction over habeas petitions filed
by noncitizen detainees held at Guantanamo Bay).
6
C. Bagram Detainee Habeas Litigation
In 2010, the D.C. Circuit applied the Boumediene test and held that the suspension clause
does not extend to alien detainees held at Bagram. Al Maqaleh II, 605 F.3d at 99. In three
subsequent cases, two judges of this Court have rejected efforts by Bagram detainees to alter this
jurisdictional analysis by introducing “new” jurisdictional evidence. See Al Maqaleh v. Gates,
(“Al Maqaleh III”) 2012 WL 5077483 (D.D.C. Oct. 19, 2012); Hamidullah v. Obama, (D.D.C.
Oct. 19, 2012); Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). Because these cases
bear directly on the matter at hand, and because this Court finds their analyses of the issues
particularly compelling, this opinion will next review those cases in some detail.
1. Al Maqaleh
Between 2006 and 2008, four detainees held at Bagram Air Force Base in Afghanistan—
Fadi Al Maqaleh, Haji Wazir, Amin Al Bakri, and Redha Al-Najar—filed habeas petitions in the
United States District Court for the District of Columbia. See Al Maqaleh v. Gates, (“Al Maqaleh
I”) 604 F. Supp. 2d 205, 208 (D.D.C. 2009). One was an Afghan citizen and the other three were
citizens of other non-U.S. countries. In 2009, Judge Bates applied the Boumediene factors and
found that jurisdiction over the three habeas petitions filed by non-Afghan detainees was
constitutionally mandated. 4 Id. at 214–35.
The United States appealed to the D.C. Circuit. See Al Maqaleh II 605 F.3d at 99. The
Circuit reversed Judge Bates and held that Federal Courts lacked subject matter jurisdiction over
habeas petitions filed by alien detainees held at Bagram. Id. 5
4
Judge Bates dismissed the fourth petition, by Afghan citizen Haji Wazir, and this petition was not part of
subsequent litigation. Al Maqaleh v. Gates (“Al Maqaleh I”), 604 F. Supp. 2d 205, 209 (D.D.C. 2009).
5
In brief, the Circuit reasoned as follows: As to the “citizenship and status” factor, the Circuit found that this
favored petitioners who, like the successful detainee petitioners in Boumediene, were alien citizens classified as
enemy aliens. Al Maqaleh II, 605 F.3d at 95–96. As to “adequacy of process” available to petitioners at Bagram, the
Circuit found that petitioners had a stronger case than the Boumediene detainees because the process they were
7
The three remaining Al Maqaleh petitioners sought rehearing en banc based, in part, on
additional evidence that was not in the record considered by the D.C. Circuit. The Circuit denied
the petition for rehearing, but noted that the denial was without prejudice to petitioners’ “ability
to present this evidence to the district court in the first instance.” Al Maqaleh v. Gates, No. 09-
5265 (D.C. Cir. July 23, 2010). On remand, Judge Bates granted the petitioners’ motion to
amend their petitions to incorporate this “new” evidence. Al Maqaleh v. Gates, 2011 WL 666883(D.D.C. Feb. 15, 2011).
After the new evidence was fully briefed, and a hearing conducted, Judge Bates granted
the United States’ motion to dismiss the amended petitions. Al Maqaleh v. Gates, (“Al Maqaleh
III”) 2012 WL 5077483 (D.D.C. Oct. 19, 2012).
In his opinion, Judge Bates considered four categories of purportedly “new evidence”,
and found no justification for departing from the Circuit’s jurisdictional analysis in Al Maqaleh
II. Id. Because it addresses issues that are virtually identical to those in the present matter, it is
instructive to discuss Judge Bates’ opinion in some detail.
First, Judge Bates considered evidence presented by the petitioners purporting to show
that the United States intended to remain indefinitely at Bagram. See Al Maqaleh III, 2012 WL
5077483 at *5–7. His opinion summarized this evidence:
Since late 2001 or early 2002, the United States has held both Afghan and non-Afghan
detainees at Bagram. The United States has recently begun transferring custody of
afforded under the UECRB system was less robust than what was available to Guantanamo detainees. Id. at 96. As
to the site of apprehension and detention, the Circuit contrasted the site of Boumediene petitioners’ detention,
Guantanamo, which was “under the complete and total control of our Government,” with Bagram, where the court
found “no indication of any intent to occupy the base with permanence,” and concluded that this factor strongly
favored the government. Id. at 96–97. Finally, as to “practical obstacles inherent in resolving the petitioner’s
entitlement to the writ,” the court again distinguished Bagram, located in an “active theater of war” in Afghanistan
and thus “exposed to the vagaries of war,” with Guantanamo, where no such conditions existed, and concluded that
this factor “weigh[ed] overwhelmingly” in favor of the government. Id. at 97–98. In sum, the court concluded that
petitioners had a slightly stronger case than the Boumediene detainees with respect to the “process” factor, the same
case with respect to “citizenship and status,” and a much weaker case on the “nature of the site” and “practical
obstacles” factors.
8
Afghan detainees to the Afghan government. Although respondents aver that they intend
eventually to transfer custody of non-Afghan detainees to . . . the Afghan government, the
detainee’s home country, or a third country, they have no specific plans in place to do so.
Petitioners conclude that the lack of specific plans to transfer non-Afghan detainees
shows that the United States has the same sort of permanent control over non-Afghan
detainees at Bagram that it has over detainees at Guantanamo Bay.
Id. at *5 (citations omitted). Judge Bates concluded that this evidence did not upset the
conclusion reached by the Circuit that the United States did not intend to remain in Bagram
indefinitely. He noted that the Circuit’s determination on this point rested on information that
was “in fact, quite limited,” largely comprised of “vague assertions” by the United States of their
intention to leave. Id. at *6. Judge Bates found that petitioners’ weak “new evidence” could not
disrupt that conclusion. Id. The court also noted that the fact that the United States had begun
transferring detainees to the Afghan government lent credence to the government’s
representations about their intention to leave Bagram. Id. Finally, the court found it significant
that there had been no change to the terms of the lease that obligates the United States to leave
Bagram “when it determines that the facility is no longer needed for military purposes.” Id.Second, Judge Bates considered petitioners’ evidence regarding criminal trials run by the
Afghan government at Bagram for Afghan detainees, and suggesting that the Afghan
government desires foreign detainees to be removed and provided fair judicial process
elsewhere. Petitioners argued that this evidence showed that the “practical obstacles” to
conducting habeas litigation for detainees at Bagram were far less serious than the Court of
Appeals had believed. Id. at *7–8. The opinion summarizes this evidence:
After the D.C. Circuit’s decision, the Afghan government began conducting criminal
trials of detainees at Bagram. The parties dispute how involved the United States is in
these trials. The United States describes them as “purely Afghan-run,” but petitioners
disagree. In their habeas petitions, they state that “the U.S. Military . . . allowed thirty-six
full-blown trials of Afghan prisoners in its custody.” Quoting a Boston Globe article,
petitioners explain that courts are composed of Afghan “judges, prosecutors, and forensic
experts,” but that Americans “mentor[ ]” them. In their briefing, petitioners adopt the
9
formulation that the United States “facilitat[es]” trials run by the Afghan government.
Given the evidence petitioners have offered, the Court concludes that “facilitating” the
trials—by allowing detainees to appear for trial and mentoring the Afghan participants—
is an appropriate characterization of the United States’ role.
Id. at * 7 (citations omitted). Judge Bates found that this evidence did not upset the Circuit’s
conclusion regarding the “practical obstacles” factor. The Circuit had cited concerns that
“ordering military commanders to participate in habeas adjudications would ‘divert . . . efforts
and attention’ from the battlefield to the courtroom.” Id. (quoting Al Maqaleh II, 605 F.3d at 98).
The petitioners’ new evidence did nothing to alleviate such concerns because “[a] trial system
run primarily by the Afghan government obviously requires many fewer U.S. military resources
than would habeas adjudications conducted solely by the United State.” Id. at *8. The Court of
Appeals also found “difficulties” inherent in litigating in a “theater of war,” Id. (citing Al
Maqaleh II, 605 F.3d at 98) and Judge Bates concluded that petitioner’s evidence did not signal
any reduction as to this concern, finding it “quite plausible . . . that trials run by the Afghan
government would produce less hostility and fewer security issues than litigation in Afghanistan
orchestrated by the United States.” Id. Finally, the Court of Appeals also rested its finding of
practical obstacles on concerns about producing “a conflict between judicial and military opinion
highly comforting to enemies of the United States,” Id. (quoting Al Maqaleh II, 605 F.3d at
98)—a concern that Judge Bates found was “not present . . . when the Afghan government tries
its own citizens with United States consent.” Id.Also under the “practical obstacles” factor, petitioners introduced a letter from the Chief
of Staff to the President of Afghanistan 6 supporting “access to a fair judicial process” for non-
Afghan detainees held at Bagram. Judge Bates held that petitioners’ reliance on this letter was
6
The same letter was submitted by Amanatullah here.
10
misplaced because it was just “a private letter to petitioners' counsel” not a statement of official
Afghan policy. Id. at *8. Moreover, even if it were official policy, Judge Bates held that this
would not “require a lesser diversion of military resources, change the fact that Afghanistan
‘remains a theater of war,’ or avert a potential conflict between the U.S. military and our courts.”
See Al Maqaleh II, 605 F.3d at 97–98.
Third, Judge Bates considered “newspaper articles, government memoranda, two
declarations from former government officials, and other materials” 7 purporting to show that the
United States had deliberately chosen the Bagram site for these detainees to avoid habeas
jurisdiction. Id. at *9. The opinion summarizes this evidence:
[Petitioners] explain, citing government memoranda, that Bagram was initially a
“collection site” where U.S. officials decided which detainees should be sent to
Guantanamo, but that the “linkage between” Bagram and Guantanamo was “severed over
time.” They then cite newspaper articles stating that transfers from Bagram to
Guantanamo dropped sharply after the Supreme Court found in June 2004 in Rasul v.
Bush, 542 U.S. 466 (2004), that detainees at Guantanamo could bring habeas petitions. In
addition, they cite two articles stating directly that detainees were transferred to Bagram
“in part” to avoid habeas jurisdiction; one quotes anonymous “military figures” and
another appears simply to be drawing an inference from transfer statistics. Finally,
petitioners argue that there was in fact a “reverse” flow of detainees from Guantanamo in
the wake of Rasul. They cite a 2010 newspaper article stating that four high-value
detainees were transferred away from Guantanamo (but not to Bagram) in the months
before Rasul was issued, because U.S. officials predicted the outcome of Rasul and
wanted to ensure that those detainees could not bring habeas petitions. They also state (in
a point vigorously contested by respondents) that more than 30 detainees were transferred
from Guantanamo to Bagram and other sites between 2007 and 2009. Finally, petitioners
have submitted the declarations of Colonel Lawrence B. Wilkerson (Ret.), former Chief
of Staff to Secretary of State Colin Powell, and Glenn Carle, a former CIA employee,
stating that petitioners “likely” were transferred to and/or kept at Bagram to “evade
judicial review of their detention.” From this evidence, petitioners conclude that the
Executive chose to house detainees at Bagram to ensure that they would not be able to
file habeas petitions.
Id. (citations omitted).
7
The same declarations were submitted by Amanatullah here.
11
Judge Bates concluded that this evidence did not justify a departure from the Court of
Appeals’ conclusion. First, he expressed doubt as to whether “purposeful evasion,” even if
found, would affect the jurisdictional analysis under Boumediene. Id. Second, he suggested that
petitioners had likely waived this line of argument because most of their “new” evidence had
been publicly available when they presented their case to the Court of Appeals, bur petitioners
failed to press the issue there. Id. Third, he noted that the facts were “not as one-sided as
petitioners represent,” noting that detainees (including high-value ones) were transferred to
Guantanamo after Rasul. Id. at 10. Fourth, he proposed plausible alternative logistical and
political explanations for why the United States might want to house detainees in Bagram rather
than Guantanamo. Id. Fifth, he noted that the Court of Appeals had already been familiar with
the risk of executive manipulation and had before it evidence that was “really no different than”
the “new” evidence when it decided Al Maqaleh II in favor of the government. Id. And finally,
he found that petitioners’ theory lacked a limiting principle and would “create universal habeas
jurisdiction” because holding detainees in any location (other than Guantanamo) would be
equally suspect. Id.
Judge Bates also considered and rejected petitioners’ request for jurisdictional discovery
to investigate the purposeful evasion theory. Id. at *11. He concluded that petitioners would need
“essentially a smoking gun” to prevail on this theory and declined to authorize a “fishing
expedition into . . . sensitive areas” that would be required to uncover such evidence. Id.
Fourth, and finally, Judge Bates considered petitioners’ evidence regarding the revised
procedures used to determine the status of detainees at Bagram. Id. Because the Court of Appeals
in Al Maqaleh II had already concluded that this Boumediene factor weighed in favor of
petitioners, and because petitioners conceded that the new procedures were “at least marginally
12
better” than the previous ones, Judge Bates ruled that this evidence did not alter the Court of
Appeals’ decision. Id. He also rejected petitioners’ argument based on the fact that some of them
had been cleared for release by these procedures, noting that the D.C. Circuit had explicitly held
that “whether a detainee has been cleared for release is irrelevant to whether a petitioner may be
detained lawfully.” Id. at *12 (quoting Almerfedi v. Obama, 654 F .3d 1, 4 n. 3 (D.C. Cir. 2011)).
2. Hamidullah v. Obama
On the same day he decided Al Maqaleh III, Judge Bates also dismissed the amended
petition of Hamidullah, a Pakistani citizen detained at Bagram. See Hamidullah v. Obama, 2012
WL 5077127 (D.D.C. Oct. 19, 2012). Hamidullah relied on the same “new evidence” as the Al
Maqaleh III petitioners with the exception of one additional argument—that he was captured as a
juvenile. Id. at *1, 3. In dismissing Hamidullah’s petition, Judge Bates incorporated his
reasoning from Al Maqaleh III, found that the “new” evidence did not call for a departure from
the result in Al Maqaleh II, and resolved the outstanding “age” issue in favor of the United
States. Id. at *3.
3. Wahid v. Gates
Finally, after the Court of Appeals had ruled on Maqaleh II, but before Judge Bates had
decided Al Maqaleh III, Judge Gwin, sitting by designation, dismissed the habeas petition of Zia-
ur-Rahman, an Afghan citizen held at Bagram. Wahid v. Gates, 2012 WL 2389984 (D.D.C. June
26, 2012). Judge Gwin applied the Boumediene factors, and concluded that “newly presented
facts, even when taken in the light most favorable to him, are too similar to warrant a different
conclusion than that of Al Maqaleh [II].” Id. at *3.
As to the “adequacy of process” factor, Judge Gwin embraced the logic that was
subsequently adopted by Judge Bates in Al Maqaleh III: because the Circuit had already found
13
that this factor weighed in favor of the petitioner, and Zia-ur-Rahman conceded that the new
DRB procedures marked a “marginal improvement” over the UECRB procedures in Al Maqaleh
II, he found no reason to depart from the Circuit’s analysis of this factor. Id. at *3–4.
As to the “nature of the site” factor, Zia-ur-Rahman introduced various evidence
purporting to show that the United States intended to occupy Bagram indefinitely. Judge Gwin
found that Zia-ur-Rahman had misconstrued this evidence, that he acknowledged the uncertainty
of the future of Untied States’ control over Bagram, and that the lack of a definite end date to the
occupation was not sufficient grounds upon which to extend the writ of habeas corpus to
detainees. Id. at *4. He concluded that “in the two years since the Al Maqaleh [II] holding, the
relevant inquires for the ‘nature of the site’ prong remain nearly unchanged.” Id. at *4–5.
As to the “practical obstacles” factor, Judge Gwin found that under the Court of Appeals’
reasoning, because Zia-ur-Rahman was an Afghan citizen, this factor would be even more
skewed in favor of the government than it was in Al Maqaleh. He also held that Bagram is still
located in “a highly active war-zone,” and that the initiation of Afghan criminal proceedings
supports the government’s position that they are trying to transfer control to Afghanistan. Id. at
*5. Thus, there was no new evidence that mandated departing from the Court of Appeals’
analysis of this factor in Al Maqaleh II.
Finally, Judge Gwin also rejected Zia-ur-Rahman’s request for jurisdictional discovery,
finding that such discovery “would not alter this Court’s jurisdictional analysis.” Id. at *6.
IV. ANALYSIS
The D.C. Circuit’s holding in Al Maqaleh II is binding on this court. Petitioner may only
succeed by showing new evidence, not part of the record before the Court of Appeals in that
case, that would mandate a departure from the Circuit’s application of the Boumediene factors
14
and produce a different outcome. Because he has failed to do so, this Court will dismiss the
petition.
A. Citizenship and Status
Amanatullah’s sole “new” evidence under this factor is his evidence that the Detainee
Review Board at Bagram found him eligible for release. Pet’rs’ Opp’n at 9–10. But this is
irrelevant to the Boumediene analysis. As Judge Bates noted, “whether a detainee has been
cleared for release is irrelevant to whether a petitioner may be detained lawfully.” Al Maqaleh
III, 2012 WL 5077483 at *12 (quoting Almerfedi v. Obama, 654 F .3d 1, 4 n. 3 (D.C. Cir. 2011)).
B. Adequacy of Process
Amanatullah’s opposition brief suggests that the DRB procedures are “fundamentally
flawed” and “woefully inadequate.” Pet’rs’ Opp’n at 9–10. The subsequently filed Foster
Declaration purports to provide a demonstration of the arbitrariness of these procedures. See
Pet’rs’ Notice of Filing [ECF No. 23]; see also Pet’rs’ Resp. at 4–7 [ECF No. 25].
This evidence does not affect the jurisdictional analysis, and will not lead this Court to
depart from the conclusion of the Court of Appeals in Al Maqaleh II. As Judge Bates noted, Al
Maqaleh II already held that this factor weighed in favor of petitioners because the procedures
afforded were less robust than those available at Guantanamo. See Al Maqaleh III, 2012 WL
5077483 at *11. Moreover, Amanatullah concedes, as did petitioners in both Al Maqaleh III and
Wahid v. Gates that the DRV procedures are “slightly less defective” than the UECRB ones they
replaced. See Pet’rs’ Opp’n at 15–16; see also Al Maqaleh III, 2012 WL 5077483 at *11 (noting
that the petitioners conceded that the DRB procedures were “at least marginally better” than the
UECRB ones); Wahid, 2012 WL 2389984 at *3–4 (noting that the petitioner conceded the new
procedures amounted to a “marginal improvement” over those at issue in Al Maqaleh II). Thus,
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the only change to the jurisdictional analysis produced by the evidence introduced here leads this
Court to find that this factor weighs slightly less in favor of the petitioners than it did in Al
Maqaleh II.
C. Nature of the Site of Detention
Amanatullah arguest that the government intends to detain him at Bagram “indefinitely,”
Pet’rs’ Opp’n at 8–9, and argues that the government has not shown any specific plan for
withdrawal. Pet’rs’ Resp. [ECF No. 21]; Errata Sheet [ECF No. 22]. Thus, he argues, Bagram
should be treated the same as Guantanamo for purposes of this Boumediene factor.
This argument also fails. As Judge Bates noted, the D.C. Circuit had before it nothing but
“vague assertions” from the government of their intent not to remain indefinitely in Afghanistan
when it decided Al Maqaleh II. Al Maqaleh III, 2012 WL 5077483 at *6; see also Wahid, 2012
WL 2389984 at *4–5. The government repeats those assertions here, and even bolsters them with
new evidence of their intent to transfer control to Afghanistan. See Resp’ts’ Notice Regarding
the March 9, 2012 MOU [ECF No. 19]; Resp’ts’ Supplemental Material [ECF No. 20].
Moreover, as Judge Bates also noted, that the government has encouraged the Afghan
government to take custody of Afghan detainees lends some further credence to the
government’s argument that it intends not to remain indefinitely. Al Maqaleh III, 2012 WL
5077483 at *6. Because the government’s “vague assertions” were sufficient to satisfy the
Circuit that Bagram was distinct from Guantanamo in this respect, because the government has
bolstered these thin statements somewhat with additional evidence in this case, and because
Amanatullah has not offered anything that would undermine this analysis, this Court will not
depart from the Court of Appeals’ analysis with respect to this factor. Id. at *6.
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D. Practical Obstacles
Amanatullah argues that the commencement of “full-blown civilian trials of Afghan
detainees at Bagram” “belies any previously articulated claim that proximity to the battlefield
renders Article III judicial review impracticable.” Pet’rs’ Opp’n at 7–8. He also points to a letter
addressed to the Al Maqaleh counsel signed by the Chief of Staff to the President of Afghanistan
favoring “fair judicial process” for all foreign detainees held at Bagram. Pet’rs’ Notice [ECF No.
23].
This argument also fails. This Court agrees with both Judges Bates and Gwin that the
commencement of civil trials does not change the fact that Afghanistan remains an active war-
zone. See Wahid, 2012 WL 2389984 at *5 (finding Bagram was situated in a “highly active war-
zone”); Al Maqaleh III, 2012 WL 5077483 at *8 (“remains a theater of war”). With respect to the
letter, this Court agrees with Judge Bates that this is “a private letter to petitioners’ counsel” not
a statement of official Afghan policy. Id. Further, as Judge Bates noted, even if it were official
policy, it would not “require a lesser diversion of military resources, change the fact that
Afghanistan ‘remains a theater of war,’ or avert a potential conflict between the U.S. military and
our courts.” Id. (citations omitted). Thus, Amanatullah has not introduced any evidence that
would allow this Court to depart from the Court of Appeals’ evaluation of this factor.
E. Purposeful Evasion of Judicial Review
Amanatullah also suggests that the government was employing Bagram as a detention
site to deliberately evade judicial review, which, he argues, should influence the court’s
jurisdictional analysis. Pet’rs’ Opp’n at 32–38. In support of this theory, he relies on several
news articles, government documents obtained under FOIA, and several “Wikileaks documents.”
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Pet’rs’ Opp’n at 32–34. He also points to declarations by Col. Lawrence B. Wilkerson (Ret.) and
Gelnn Carle, a retired high-ranking CIA officer. Pet’rs’ Notice [ECF No. 23].
This argument fails for several reasons. First, this Court agrees with Judge Bates’
skepticism regarding the petitioner’s assumption that the question of “purposeful evasion” is or
should be part of the Boumediene jurisdictional analysis. Such a theory of jurisdiction seems to
lack any limiting principle and would threaten to “create universal habeas jurisdiction”—
something plainly at odds with the careful balancing of the Boumediene test. See Al Maqaleh III,
2012 WL 5077483 at *10. Moreover, even if “purposeful evasion” were a factor in the
jurisdictional analysis, Amanatullah has not offered sufficient “new” evidence that would allow
this Court to depart from the conclusion of the Court of Appeals in Al Maqaleh II. Most (if not
all) of Amanatullah’s “new” evidence purporting to support this theory had been publicly
available when they presented their case to the Court of Appeals in Al Maqaleh II and thus may
not lead this court to depart from the conclusion that court reached. Finally, this Court also notes,
as did Judge Bates, that the facts are “not as one-sided as petitioners represent,” since some
detainees (including high-value ones) were transferred to Guantanamo after Rasul v. Bush, 542
U.S. 466 (2004) (the 2004 case that petitioner argues triggered the purposeful evasion). See Al
Maqaleh III, 2012 WL 5077483 at *10. Thus, again, Amanatullah has failed to introduce
evidence that would lead this Court to depart from the analysis of Al Maqaleh II.
F. Jurisdictional Discovery
Finally, Amanatullah requests the opportunity to conduct jurisdictional discovery to
further pursue his “purposeful evasion” theory. Pet’rs’ Opp’n at 34–38. However, habeas
petitioners are “not entitled to jurisdictional discovery as of right.” Al Maqaleh III, 2012 WL
5077483 at *11; see also Harris v. Nelson, 394 U.S. 286, 295 (1969) (“[T]he broad discovery
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provisions of the Federal Rules of Civil Procedure do not apply in habeas cases.). Because the
Court agrees with Judges Bates and Gwin that such discovery would not lead to any evidence
that might affect the jurisdictional analysis, this Court denies petitioners’ request. See Al
Maqaleh III, 2012 WL 5077483 at *11 (rejecting petitioners’ request for jurisdictional discovery
as an attempt to engage in a “fishing expedition into . . . sensitive areas”); Wahid, 2012 WL
2389984 at *6 (rejecting petitioner’s request for jurisdictional discovery, finding that such
discovery “would not alter this Court’s jurisdictional analysis”).
V. CONCLUSION
For the foregoing reasons, the government’s motion to dismiss is GRANTED, and
Amanatullah’s request for jurisdictional discovery is DENIED.
A separate order consistent with this Opinion shall issue on this date.
Signed by Royce C. Lamberth, Chief Judge, on November 15, 2012.
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