Wazir v. Rumsfeld ( 2009 )

REDACTED
men wl'rH THE
IJNITED STATES DISTRICT COURT comm sEcuRrrY QFFȢ;ER
FoR 'rHE mSTIucT oF coLUMlzlA csa
‘/ f 7
/ / 7
FADI AL MAQALEH, e_t 313
Petitioners,
Civil Action No. 06-1669
V.
ROBERT GATES, §§ _:;L,
Respondents.
HA.H WAZIR, §§ §L,
Petitioners,
v. Civil Action N0. 06-1697
ROBERT GATES, e_t §L,
Respondents.
__ _____
AMIN AL BAKRl, e_t gl_.,
Petitioners,
Civil Action No. 08-1307
V.
BARACK H. OBAMA, et al.,
Respondents.
REDHA AL-NAJAR, §_t_ gl_.,
Petitioners,
v. Civil Action No. 08~2143
RGBERT GATES, §§ §_l_.,
Respondents.
MEMORANDUM OPINION
Before ‘che Courl are respondents’ motions to dismiss these four petitions for habeas
corpus The pemioners are all foreign nationals captured outside Afgharxistan yet held at the
Bagram Theater Internrnent Facility at Bagram Airfield in Afghanistan for six years or more.
The issue at the heart of these cases is whether these petitioners may, in the wake of Boumediene
y§_u§_l_i, 128 S. Ct. 2229 (2()08), invoke the Suspension Clause of the Constitution, Art l. § 9 cl.
2. If so, then section 7(a) of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-
366, 120 Stat. 2600, is unconstitutional as applied to these petitioners and they are entitled to
seek the protection of the writ of habeas corpus. But if not, then these petitions must be
dismissed as respondents have urged.
The issues here closely parallel those in Bournediene, in large part because the detainees
themselves as well as the rationale for detention are essentially the same. The case calls for the
first application of the multi-factor functional test crafted by the Supreme Court in Boumediene,
and the same vital jurisprudential concerns at play there also frame the analysis here.
lt must be remembered, then, that the writ of habeas corpus plays a central role in our
constitutional system as conceived by the Framers, which "must inform proper interpretation of
the Suspension Clause." Boumediene, 128 S. Ct. at 2244. lndeed, "the Framers deemed the writ
to be an essential mechanism in the separation-of-powers scheme," j_cL at 2246, that, as Alexander
Hamilton observed, was vital to the protection of individuals against the very same arbitrary
exercise of the govemment's power to detain that is alleged by petitioners here:
"[C]onfmement of the person, by secretly hurrying him to jail,
where his sufferings are unknown or forgotten, is a less public, a
less striking, and therefore a more dangerous engine of arbitrary
government." And as a remedy for this fatal evil [Blackstone] is
everywhere peculiarly emphatical in his encomiums on the h_al_)g_a__s_
corpus act, which in one place he calls "the bulwark of the British
Constituti on. "
Boumediene, 128 S. Ct. at 2247 (quoting The Federalist No. 84, at 512 (Alexander Harnilton) (C.
Rossiter ed., 1961) (quoting 1 W. Blackstone, Commentaries *136)) (emphasis in 0riginal).
So, too, the Suspension Clause was forged to guard against such'Executive abuses, by
protecting those detained through the assurance, except in the strictly-confined periods of
suspension, that "the Judiciary will have a time-tested device, the writ, to maintain the 'delicate
balance of governance' that is itself the surest safeguard of liberty." Boumediene, 128 S. Ct. at
2247 (quoting , 542 U.S. 507, 536 (2004) (plurality opinion)). Hence, "[t]he
separation-of-powers doctrine . . , must inform the reach and purpose of the Suspension Clause."
l_cL But that principle requires, as well, that the Judiciary accord proper deference to the political
branches, particularly during conflicts abroad where the Executive must retain "substantial
authority to apprehend and detain those who pose a real danger to our security." I_d_. at 2277. In
the end, though, while "the Executive's powers as Commander in Chief' must be preserved, the
courts still must fulfill their responsibility to review, with appropriate caution, the exercise of
those powers:
Within the Constitution's separation~of-powers structure, few
exercises of judicial power are as legitimate or as necessary as the
responsibility to hear challenges to the authority of the Executive
to imprison a person. Sorne of these petitioners have been in
custody for six years with no definitive judicial determination as to
the legality of their detention. Their access to the writ is a
necessity to determine the lawfulness of their status, even if, in the
end, they do not obtain the relief they seek.
This Couit's role, and this decision, is nonetheless quite narrow, and is limited today to
assessing whether the Suspension Clause extends to these four petitioners and hence whether
they are entitled to seek habeas corpus in this Court. Applying the Boumediene factors carefully,
the Court concludes that these petitioners are virtually identical to the detainees in Boumediene --
they are non-citizens who were (as alleged here) apprehended in foreign lands far from the
United States and brought to yet another country for detention. And as in Boumediene, these
petitioners have been determined to be "enemy combatants," a status they contest. Moreover, the
process used to make that determination is inadequate and, indeed, significantly less than the
Guantanamo detainees in Boumediene received Although the site of detention at Bagram is not
identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United
States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the
"practical obstacles" inherent in resolving a Bagram detainee's entitlement to habeas corpus are in
some ways greater than those present for a Guantanarn0 detainee, because Bagram is located in
an active theater of war. But those obstacles are not as great as respondents claim, and certainly
are not insurmountable And irnportantly, for these petitioners, such practical barriers are largely
of the Executive's choosing ~» they were all apprehended elsewhere and then brought (i_.e_.,
rendered) to Bagram for detention now exceeding six years.
Based on those conclusions driven by application of the Bonrri_ediene test, the C0urt
concludes that the Suspension Clause extends to, and hence habeas corpus review is available to,
three of the four petitioners As to the fourth, his Afghan citizenship -- given the uriique
"practical obstacles" in the form of friction with the "host" country -- is enough to tip the balance
of the Boi_imediene factors against his claim to habeas corpus review. When a Bagram detainee
has either been apprehended in Afghanistan or is a citizen of that country, the balance of factors
may change Although it may seem odd that different conclusions can be reached for different
_4-
detainees at Bagram, in this Court's view that is the predictable outcome of the functional, multi-
factor, detainee-by-detainee test the Supreme Court has mandated in Boumediene,
BACKGROUND
All four petitioners in these cases have been detained as "enemy combatants" by the
United States at the Bagrarn Theater lntemrnent Facility at Bagram Airfield in Afghanistan
("Bagram"). All four claim to have been captured outside Afghanistan and contest their
designation as enemy combatants.‘ Fadi al Maqaleh, a Yemeni citizen who was taken into U.S.
custody sometime in 2003, filed a petition for a writ of habeas corpus on September 28, 2006.
Maqaleh Am. Habeas Pet. 1[‘[[ 1 l, 14. He claims that he was captured beyond Afghan borders but
does not specify where. I_<'.L 1111 24~25. Haji Wazir, an Afghan citizen, filed a habeas petition on
September 29, 2006.2 Wazir Habeas Pet. 11 2. Wazir was captured in Dubai, United Arab
Emirates in 2002 and has been in U.S. custody since. _S__eg Declaration of Jawed Ahmad 11 31
(attached as Exhibit 1 to Wazir Opp'n to Resps.' Mot. to Dismiss ("Wazir Opp'n")). Amin al
Bakri is a Yemeni citizen, captured by U.S. forces in Thailand in 2002, who filed a petition
seeking habeas review on .luly 28, 2008. Bakri Habeas Pet. 111 2-3. Redha al-Najar filed a
habeas petition on December IO, 2008. Al-Najar is a citizen of Tunisia who was captured in
Pakistan in 2002, Al-Najar Habeas Pet. 1111 12, 25.
‘ Recently, the Executive Branch has decided to abandon the term "enemy combatant“ as
to detainees held at Guantanamo Bay, but not necessarily for those at Bagram. _S_eg note ll, infra
Each of these petitioners was determined to be an enemy combatant through the process at
Bagrarn for determining a detainee’s status, and that tenn has been employed by the parties in the
briefing Hence, the Court will use it as well.
2 Wazir originally filed his petition along with three other Bagram detainees, Mohammad
Omar, Gul Mohamrnad, and Haji Naqib. Omar, Mohammad, and Naqib have since been released
from U.S. custody. Hence, only Wazir's petition remains pending before the Court.
-5_
Respondents dispute some of the facts alleged in the habeas petitions. Although
respondents do not contest any petitioner‘s claim as to his country of citizenship, they do take
issue with some petitioners' statements as to the place of their capture. For example, respondents
contest al Maqaleh's claim that he was captured outside Afghanistari. §§;e_ Declaration of Charles
A. Tennison 11 20 (attached as Exhibit 1 to Resps.' Mot. to Dismiss al Maqaleh's Habeas Pet.
("Resps.' Maqaleh Mot.")).
After al Maqaleh and Wazir filed their habeas petitions, but before al Bakri and al-Najar
filed their petitions, the Supreme Court decided Boumediene v. Bush, 128 S. Ct. 2229 (2008).3
In that case, the Supreme Court considered habeas petitions filed by "aliens designated as enemy
combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba." L477 U.S. 478, 483 (1986)).
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. g Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002), a_fE, Al Odah v. United
§_t_ate_s_, 321 F.3d 1134 (D.C. Cir_ 2003), rev'd on other gr~ounds, Rasul v. Bush, 542 U.S. 466(2004) (applying Fed. R. Civ. P. 12(b)(l)'to the government's motion to dismiss a pending habeas
petition on jurisdictional grounds); see also ln re Guantanamo Detainee Cases, 355 F. Supp. 2d
_7-
443, 453 (D.D.C. 2005), vacated, Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), ;§y§d_,
Boumediene v. Bush, 128 S. Ct. 2229 (2008) ("l``lie respondents . , . seek dismissal of all counts
as a matter of law under Fed. R, Civ. P. l2(b)(6) for failing to state a claim upon which relief can
be granted. ln the alternative, the respondents seek a judgment based on the pleadings pursuant
to Fed. R. Civ. P. 12(0).").
Under Rule l2(b)(1), those seeking to invoke the jurisdiction of a federal court -~
petitioners here -- bear the burden of establishing that the court has jurisdiction. §:_e_ L_J_S_
Ecologv, lnc. v. U,S. Dep't of lnterior, 231 F.3d 20, 24 (D.C. Cir. 2000) (citing Steel Co. v.
Citizens for a Better Env‘t, 523 U.S. 83, 103-04 (1998)); see also Grand Lodge of Fratgrnal Order
of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ("[Aj Rule l2(b)(l) motion imposes
on the court an affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority."); Pitnev Bowes. lnc. v. U.S. Postal Serv., 27 F. Supp. 2d l5, 19 (D.D.C.
l998). Although a court must accept as true all of petitioners' factual allegations when reviewing
a motion to dismiss pursuant to Rule 12(b)(l), gee Le_zi_t_lieririan v. Tarrant Cty. Narcotics
intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "‘factual allegations . . . will bear
closer scrutiny in resolving a 12(b)( l) motion' than in resolving a l2(b)(6) motion for failure to
state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright-&
Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. l990)). At the stage of litigation
when dismissal is sought, a petitioner's habeas petition must be construed liberally, and the
petitioner should receive the benefit of all favorable inferences that can be drawn from the
alleged facts. §ee EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 62l, 624 (D.C. Cir.
1997). Additionally, a court may consider material other than the allegations in the habeas
-g.
petition in determining whether it has jurisdiction to hear the case, so long as it still accepts the
factual allegations in the habeas petition as true. _S_e_e_ jerome Stevens Pharrnaaeuticals, lnc. v.
_ED_A_, 402 F.3d 1'249, 1253-54 (D.C. Cir. 2005); St. Francis Xavier Parochial Sch., 117 lj``.3d at
624-25 n.3; Hcrbert v. Nat‘l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
ANALYSIS
Respondents seek to dismiss these four habeas petitions for lack of jurisdiction
Petitioners oppose respondents motions on several grounds, arguing that: (l) this Court has
statutory jurisdiction to entertain these habeas petitions under 28 U.S.C. § 2241 , _g:_e_ al Maqaleh
Opp'n to Resps.' Mot. to Dismiss ("Maqaleh Opp’n") at 17~21; (2) the MCA unconstitutionally
suspends habeas rights without providing an adequate substitute, see i_d_. at 23-31, 33~58; (3)
MCA § 7 works an unconstitutional usurpation of the judiciary's Article 111 powers, _s_e_e igl_. at 21-
23; (4) MCA § 7 is an unconstitutional "perrnanent" suspension of the writ of habeas corpus, §ge
gd_. at 23-3l; (5) petitioners have not had their status determined by a "competent tribunal"
pursuant to MCA § 3, see i_551 F.3d 1068,
1073~74 (D.C. Cir. 2009) (reviewing cases and statutes leading to BQumediene). The first
Supreme Court case to address the rights of detainees held at Guantanamo Bay was Kasul v.
Bush, 542 U.S. 466 (2004). ln Rasul, the Supreme Court held that alien detainees designated as
enemy combatants could invoke the federal habeas statute, 28 U.S.C. § 2241, to challenge their
detention at Guantanamo The same day, the Supreme Court issued a decision in Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), which focused on the due process rights of U.S. citizens
detained as enemy combatants. The following year, in response to the Supreme Court's rulings,
Congress passed the Detainee 'l``reatment Act of 2005 ("DTA"), Pub. No. 109-148, 119 Stat.
2739, which mandates humane treatment of detainees and sets forth a process for testing the
legality of detention. _S,e_e D'l``A §§ 1002-03, l005(e)(2). The DTA also amended the federal
habeas statute by stripping federal courts of jurisdiction to entertain habeas petitions filed by
Guantanamo detainees. I_cL § l0O5(e)(l). But the next year, the Supreme Court decided Hamdan
v. Rumsfeld, 548 U.S. 557, 575~76 (2006), which held, among other things, that the DTA~ could
not be applied retroactively to bar habeas petitions pending at the time of the D'I``A's enactment.
Wit.hin a few months, however, Congress passed the Military Commissions Act of 2006
("MCA"), Pub. L. No. 109-366, l20 Stat. 2600. ln section 7(a), Congress again amended the
federal habeas statute to read as follows:
(e)(l) No 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
-10_
28 U.S.C. § 224l(e)(l ). And, in direct response to Hamdan, the MCA provides in section 7(b)
that the jurisdiction-stripping provision "shall take effect on the date of the enactment of this Act,
and shall apply to all cases, without exception, pending on or after the date of the enactment of
this Act . . . ." When Boumediene came before the Supreme Court in 2008, the central issue was
the constitutionality of § 2241, as amended by MCA § 7(a). As discussed at length in the section
that follows, the Boumediene Court struck down MCA § 7(a) as an unconstitutional suspension
of the writ of habeas corpus,
According to petitioners, Boumediene was a facial invalidation of MCA § 7, thereby
"fully restor[ing] this Court's jurisdiction" under § 224l. §;c_e al Bakri Opp'n to Resps.' Mot. to
Dismiss ("Bakri Opp'n") at ll. The § 2241 inquiry, petitioners maintain, is govemed by ms
holding that federal district courts have statutory jurisdiction to hear habeas petitions filed by
aliens and citizens held by the United States at Guantanamo Because the United States controls
Bagrarn to the same degree that it controls Guantananio, the argument goes, Rasul applies with
equal force to the pending petitions here. Respondents counter that Boumediene was an "as
applied" rejection of MCA § 7, not a facial one, so § 2241 (e) remains in force as to detainees
held as "enemy cornbatants" at Bagrarn. §_e_e_ Resps.' Reply in Support of Mot. to Dismiss al
Bakri's Habeas Pet. ("Resps.'Bakri Rep.") l-4. Under the plain language of § 2241(¢)(1), as
modified by MCA § 7(a), federal district courts lack habeas jurisdiction over "an alien detained
by the United States who has . . . been properly detained as an enemy combatant." Because §
224l(e)(l) on its face strips federal courts of jurisdiction to consider Bagrarn detainees' habeas
petitions, the outcome depends on whether Boumediene was an as applied or a facial rejection of
MCA § 7. Only if it was a facial rejection may the Court ignore the clear language of the statute.
-]]-
Fairly read, Boumediene was an as applied rejection ofMCA § 7. To be sure, the
Supreme Court framed the issue in general terms -- i_._<;, whether aliens held in "distant countn'es"
could invoke the Suspension Clause. l28 S.Ct at 2248. And the Supreme Court did not
specifically mention Guantanamo each time it announced an aspect of its holding. But to
interpret Boumediene as a facial repudiation of MCA § 7 would not only require a selective
reading of the Supreme Court's opinion, it would also require this Court to ignore the history
preceding the Supreme Court's holding.
Boumediene was focused on the habeas rights of detainees held at Guantana.mo. The
Supreme Court examined the history of the U.S. presence at Guantanamo, §_e§ l28 S. Ct. at 2251-
52, the degree of U.S. control at Guantanamo, _s__e§ i_d_. at 2260-61, and the practical obstacles of
extending habeas rights to Guantanamo, s_e_c_: _i_cL at 2261. The Supreme Court did not examine
those very fact-specific factors with regard to any other place the United States presently operates
or confines detainees. When the Supreme Court did examine other historical sites of detention,
like Landsberg Prison in post~World W ar ll Germany, it only did so to compare those historical
sites to Guantanamo. _S_e§ j_c_i_. Indeed, the Supreme Court specifically observed that it might
reach a different outcome if the site of detention was someplace other than Guantanamo lgl_. at
2261-62. Hence, to infer that Boumediene rejected MCA § 7 worldwide would be to ignore the
Supreme Court's unmistakably Guantanamo~specific analysis
The conclusion that Boumediene only assessed the constitutionality of MCA § 7 as
applied to Guantanamo is inescapable when the case is viewed in context Begirming with B_agi_l
and Hamdi, and then continuing with Hamdan, the decision in Boumediene is the latest in a
series of landmark Supreme Court opinions addressing the habeas rights of detainees held at
..]2-
Guantanamo. Neither Rasul, Hamdi, nor liamdan considered other sites of detention. Under
petitioners' reading, Boumediene not only held `` for the first time -- that the Suspension Clause
extends to a foreign country where the United States does not exercise d_e_ju_r_e sovereignty, but
took that ground-breaking step well beyond the cases that framed that important constitutional
question. 'Ihe Supreme Court has time and again stated its preference for "partial, rather than .
facial, invalidation."i Ayotte v. Planned Parenthood, 546 U.S. 320, 328-29 (2006) (quoting
Brockett v. Spokane Arcades, lnc., 472 U.S. 491, 504 (1985)), Hence, this Court will not adopt
the far-reaching interpretation of Boumediene that petitioners advance. Because the Court
interprets Boumediene as a rejection of MCA § 7 as it applies to Guantanamo specifically, rather
than a broader facial rejection, MCA § 7 (and, therefore, § 2241 (e)(l)) continues to deprive this
Court of statutory jurisdiction over habeas petitions filed by Bagram detainees Absent statutory
habeas corpus jurisdiction petitioners must look to the constitutional right to habeas corpus as
protected by the Suspension Clause, and whether that provision extends to them. The question,
then, is whether the statute withdrawing habeas corpus jurisdiction is constitutional as applied to
these detainees held at Bagram.
II. The Reach of the Suspension Clause to Bagram
The specific constitutional question posed by these four cases is whether petitioners --
foreign nationals designated as enemy cornbatants, captured and held abroad at Bagrarn -- are
entitled to invoke the protections of the writ of habeas corpus in U.S. courts. This is essentially
the same "specific question" the Supreme Court faced in Boumediene: "whether foreign
nationals, apprehended and detained in distant countries during a time of serious threats to our
Nation's security, may assert the privilege of the writ and seek its protections." 128 S. Ct. at
-13_
2248. And that question involves at its core the issue of the reach of the Suspension Clause, just
as it did in Boumediene. The facts may vary from petitioner to petitioner, but the only material
difference between the petitioners in Boumediene and the petitioners here is where they are held
-- at the military base at Guantanamo Bay in Cuba or at the Bagram Theater lntemment Facility
at Bagram Airfield in Afghanistan.
The Boumediene Court conducted a far-reaching historical exegesis of the writ of habeas
corpus and the Suspension Clause. The Court began with the Framers' original intent, surveying
English habeas jurisprudence pre-dating the Constitution. l_c_L at 2244-47. The Court then turned
to "founding-era authorities" addressing the scope of the Suspension Clause, finding them too
muddled and too incomplete "to infer too much, one way or the other, from the lack of historical
evidence on point." lc_l_. at 2248-5 l. Finally, the Court weighed its own precedent assessing
extraterritorial application of the Constitution -- cases like the insular Cases," Johnson v.
Eisentrager, 339 U.S. 763 (1950), and Reid v. Covert, 354 U.S. l (1957). _S_e___e; Boumediene l28
S. Ct. at 2253-58. The Court concluded that some cases from this venerable array -- especially
Eisent;age -- helped inform its analysis. l_d_. But no case was so on point as to allow the Court
simply to apply established precedent. lnstead, the Court constructed a new framework to
address the specific question it faced. l_d_. at 2259. Because that "specific question" is no
different than the constitutional question in the cases now before this Court, and because
Boumediene fashioned a specific framework to address it, the analysis here must focus first and
foremost on Boumediene.
" _S_e§ De Lima v. Bidwell, l82 U.S. l (1901)', Dooley v. United States, 182 U.S. 222 _
(1901); A.rmstrong v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244(1901); Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorrv. United States l95 U.S. 138 (1904).
-14_
Boumediene concluded that "at least three factors are relevant in determining the reach of
the Suspension Clause":
(l) the citizenship and status of the detainee and the adeq,iacy 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.
l28 S. Ct. at 2259. F or the sake of analysis, these three factors can be subdivided further into
six: (l) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the
process through which the status determination was made; (4) the nature of the site of
apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in
resolving the petitioner’s entitlement to the writ.
The parties dispute how these six factors should be applied. A threshold issue is whether
application of the Boumediene factors to determine whether the Suspension Clause applies
should be on a detainee-by-detainee basis or categorically as to all Bagrarn detainees. Petitioners
argue that the factors require an individualized, detainee-specific application. According to
petitioners, although some factors -- like the nature of the site of detention ord the adequacy of
process -- can be applied categorically to all Bagram detainees, other factors -- like the detainee's
citizenship and site of apprehension -- necessarily vary from one detainee to the next. _S__e_e
'I``ranscript of Jan. 7, 2009 Hearing ("Tr.") at 66. Respondents counter that all six factors can be
applied categorically. _S_e_g:_ i_cL at 7-8; §_ee_a_l§)_ Resps.' Reply in Support of Mot. to Dismiss al
Maqaleh's Habeas Pet. ("Resps.' Maqaleh Rep.") at l6-l7. For citizenship, they contend, the only
question is whether a detainee is a U.S. citizen. And the only question for the site of
apprehension factor is whether a detainee was captured within U.S. territory. Because no
-]5_
Bagram detainee is a U.S. citizen and none was captured within U.S. territory, respondents
maintain that the Court need not examine those two factors any further.
Boumediene contemplated a more nuanced analysis than respondents propose. The
Supreme Court repeatedly eschewed bright-line rules, favoring instead an assessment of
"objective factors and practical concerns." _S__ee 128 S. Ct. at 2258. Take, for instance,
Boumediene's careful comparison ofReid v. Coveit and In re Ross, 140 U.S. 453 (1891). L_i_. at
\ 2255-57. The Court observed that although both cases considered whether the Fifth and Sixth
Amendments applied extraterritorially to U.S. citizens detained by the U.S. government, the
cases came out differently.S The Constitution reached the petitioners in B_e_i_d but not those in
jl§c_)§§ because extraterritorial application in l_lg_ss would have been impractical. l_c_L at 2256-57.
As the Court explained in Boumediene, "[i]f citizenship had been the only relevant factor in
[Ross], it would have been necessary for the [Reid] Court to overturn Ross." _LL at 2257.
Bournedigne's repeated rejection of bright-line rules, then, coupled with its choice of certain
detainee-specific factors, strongly supports petitioners' individualized approach.
Respondents warn that a detainee-by-detainee analysis might "lead to the anomalous
result that some alien detainees at Bagram Airfield would have habeas rights, while others do
not." Resps.' Maqaleh Mot. at 25. Perhaps respondents are tight that such a result would be
"anomalous." But it is certainly no more anomalous than the result that might follow -- and
indeed that respondents urge -- under their categorical approach. Aside from where they are
held, Bagrarn detainees are no different than Guantanamo detainees. Yet not only do
5 The petitioner in Ross was a British subject serving on an Arnerican merchant vessel.
But as l_?_g_uinediene noted, "[t]he petitioner's citizenship played no role in the disposition of the
case . . . [because] the Court assumed (consistent with the maritime custom of the time) that Ross
had all the rights of a similarly situated American citizen." 128 S. Ct. at 2256.
.j5_
Guantanamo detainees receive greater process than do Bagram detainees, but Guantanamo
detainees have the privilege of habeas corpus under Boumediene while Bagram detainees, under
respondents' approach, would not. lt would be an even more "striking anomaly" to permit the
Executive "to switch the Constitution on or off at will" merely by deciding who will be held
where.° §__e§ Boumediene, 128 S. Ct. at 2259. This Court is not persuaded, then, that
respondents' categorical approach, in which they now advocate different results solely on the
basis of whether they ship otherwise identically-situated detainees to Guantanamo or instead to
Bagram, is consistent with Boum ediene.? Hence, the Court will apply the six factors in an
individualized, detainee-specific manner.
A seventh factor tacitly informed Boumediene's analysis as well: the length cfa
petitioner’s detention without adequate review. §e_e i_d_._ at 2275-76; see also i_d_. at 2278 (Souter,
J., concurring). ln holding that the Suspension Clause applies to detainees held at Guantanarno,
the Court was clearly motivated, at least in part, by the prospect of indefinite Executive detention
without judicial oversight. Allowing that "it likely would be both an impractical and
" One could argue that by considering adequacy of process in determining whether the
Suspension Clause applies -- rather than only examining the process to determine whether it is an
adequate substitute for habeas -- the Boumediene factors do, in fact, allow the Executive to
"switch the Constitution on or off ." lf the Executive provides detainees greater process, the
argument goes, then detainees may be beyond the reach of the Suspension Clause. Although this
tension could be viewed as an inconsistency in Boumediene's logic, it also signifies deference to
the Executive's conduct of the war in Afghanistan. lt allows the Executive to forestall judicial
superintendence of the rnilitary's detention policies as long as he provides detainees with
sufficient process within a reasonable amount of time.
7 This Court's concern with the unrestrained power of respondents (i£_._, the Executive
Branch) to determine the availability of habeas corpus simply by choosing to send a detainee to
Bagram rather than Guantanamo is precisely the concern that animated the Supreme Court's
separation-of-powcrs observations in Boumediene. _S_e_€_: l28 S. Ct. at 2259 ("The test for
determining the scope of [the Suspension Clausej must not be subject to manipulation by those
whose power it is designed to restrain.").
_]7_
unprecedented extension of judicial power to assume that habeas corpus would be available at
the moment the prisoner is taken into custody," the Court held that "the Executive is entitled to a
reasonable period of time to determine a detainee's status before a court entertains that detainee's
habeas corpus petition." id at 2275-76. But the Court stressed that "[t]he cases before us . . . do
not involve detainees who have been held for a short period of time." id at 2275. The
Boumediene petitioners -- like petitioners here -~ had been held for six years or more. S_ee gi_.
Hence, whatever "reasonable period of time" the Executive was entitled to had long since passed.
Because the Supreme Court did not include the length of detention in its explicit list of factors
that courts should consider in determining the reach of the Suspension Clause, this Court will not
separately consider that circumstance here. lnstead, the length of detention must exceed that
"reasonable period" to which the Executive is entitled and also may shade other factors, like the
practical obstacles inherent in resolving a petitioner‘s entitlement to the writ. But the Supreme
Court’s observation in Boumediene is equally powerful here: "the costs of delay can no longer be
borne by those who are held in custody. The detainees in these cases are entitled to a prompt
habeas corpus hearing." ii
Finally, respondents suggest that to hold that the Suspension Clause reaches these
petitioners would be a usurpation of the Executive Branch's powers -- it would allow the
judiciary to "superintend[] the Executive‘s conduct in waging a war." Resps.' Maqaleh Mot. at 3.
'I``his Court is, of course, fully aware of the separation-of-powers concems that underlie these
cases. And the Court is well-advised of the Supreme Court's oft-repeated admonition that the
political branches are entitled to a "healthy deference . . . in the area of military affairs." ostker
-]8.
v. Goldberg, 453 U.S. 57, 66 (1981).“ But the writ of habeas corpus plays a unique role in our
constitutional system of checks and balances. "["l``]he privilege of habeas corpus was one of the
few safeguards oflibeity specified in a Constitution that, at the outset, had no Bill of Rights. ln
the system conceived by the Framers the writ had a centrality that must inform proper
interpretation of the Suspension Clause." Boumediene, 128 S. Ct. at 2244. 'l``he writ is a judicial
check on Executive detention. §e_e l``,\lS v. St. Cyr, 533 U.S. 289, 301 (2001) ("At its historical
core, the vvn't of habeas corpus has served as a means of reviewing the legality of Executive
detention, and it is in that context that its protections have been strongest.").° Hence,
respondents' recurring theme -- that this Court would be overstepping its constitutional role by
entertaining habeas petitions filed by these detainees -- rings hollow. As Boumediene has
already made clear, reaching back to the admonition in Mg_rb_ury v. Madison, 1 Cranch. l37, 177
(1803), that it is the Court that says "what the law is," the Judiciag -- not the Executive - must
decide when and where the Suspension Clause applies:
[T]he writ of habeas corpus itself is an indispensable mechanism
for monitoring the separation of powers . . . . The test for
determining the scope of [the Suspension Clause] must not be
subject to manipulation by those whose power it is designed to
restrain
8 See also Munaf v. Geren 128 S.Ct 2207, 2224-25 (2008) ("Our constitutional
framework ’requires that the judiciary be as scrupulous not to interfere with legitimate Army
matters as the Army must be scrupulous not to intervene in judicial matters."') (quoting Orloff v.
Willoughby, 345 U.S. 83, 94 (1953)).
9 See also Boumediene, 128 S. Ct. at 2246-47 ("The practice of arbitrary irnprisonments
. . . ’is a less public, less striking, and therefore more dangerous engine of arbitrary government.‘
And as a remedy for this fatal evil [Blackstonel is everywhere peculiarly emphatical in his
encomiums on the habeas comus act . . . .") (quoting 'l``he Federalist No. 84, at 512 (Alexander
Hamilton) (C. Rossiter ed., 1961) (quoting 1 W. Blackstone, Cornmentaries *136)) (emphasis in
original).
-19..
l_cL at 2259. With these principles in mind, the six Boumediene factors can be applied to the
petitioners here.
A. Cz'tizenship, Slatus, and Site of Apprehension
Petitioners are situated no differently than the detainees in Boumediene with regard to
three of the six factors: citizenship of the detainee; status of the detainee; and site of
apprehension, Like the petitioners in Boumediene, none of the petitioners here are U.S. citizens.
§ge 128 S. Ct. at 2259. Moreover, these petitioners, too, have been determined to be "enemy
combatants" -- a determination that they dispute. §9§ i_d_. Finally, petitioners in both cases were
all apprehended "outside the sovereign territory of the United States." _S_e_e_ id_; at 2260.
The Supreme Court spent little time on these three factors in Boumediene. After
identifying citizenship as a relevant eriterion, the Court made no further reference to it during the
Suspension Clause analysis As to the status factor, the Court noted that petitioners contested
their status as enemy combatants whereas the petitioners in Eisentrager did not deny that they
were "enemy alien[s]." g at 2259. But rather than exploring how an enemy combatant
determination figures into the Suspension Clause calculus, the Court focused on the process by
which the status determination was made. l_d_. at 2259-60 Finally, with regard to the site of
apprehension, the Boumediene Court simply noted that the petitioners, like those in Eisentrager,
were captured outside the United States. l_c_l_. at 2260. Although the Court recognized that "this is
a factor that weighs against finding [petitioners] have rights under the Suspension Clause," it
immediately moved on to a different factor -- the site of detention. ig lt is evident from the
rather cursory analysis of these three factors that the remaining three factors -- site of detention,
-20..
adequacy of process, and practical obstacles -~ were the primary drivers of the Supreme Court’s
decision in Boumediene
This Court, then, has little guidance as to what the citizenship factor means after
Boumediene. United States citizenship plainly is not a litmus test -- otherwise Boumediene
would not have come out the way it did. To be sure, a habeas petitioner‘s U.S. citizenship weighs
strongly in favor of a finding that habeas corpus rights apply abroad. _S_e_q Munaf v. Geren 128 S.
Ct. 2207, 2216 & n.2 (2008); Eisentrager, 339 U.S. at 769~70. But as Boumediene's comparison
of Be_td_ and I_{_c_>§ demonstrates, U.S. citizenship does not, by itself, guarantee extraterritorial
application. l28 S. Ct. at 225 6-57. Petitioners argue that Boumediene can be read to support an
approach that would differentiate between U.S. citizens, citizens of friendly nations, and citizens
of enemy nations. Tr. at 70-72. Citizens of friendly nations, petitioners suggest, should be
treated like U.S. citizens', only if a detainee is a citizen of a nation with which the United States is
at war should this factor weigh against them This approach, however, is unworkable. The
terrorist "enemy" the United States is currently combating is not a "nation." §§ Authorization
for Use of Military Force § 2(21), Pub, L. No. 107-40, l 15 Stat. 224 (2001) (authorizing President
"to use all necessary and appropriate force against those nations, organizatigns, or persons he
determined planned, authorized, committed, or aided the terrorist attacks that occurred on _
September ll, 2001“) (emphasis added). Yet capturing and holding enemy fighters is a
"fundarnental incident" of conducting the ongoing armed conflict _Ha_r@, 542 U.S. at 518-19.
Petitioners concede that under their approach, the U.S. government would be required to treat all
such detainees as if they were U.S. citizens because none of them are citizens of an enemy
nation. Tr. at 71 -72. That result would be unprecedented. After Boumediene, the most this
Court can say with any certainty is that U.S. citizenship helps petitioners whereas foreign
citizenship does not. ’° Because, as in Boumediene, none of petitioners here are U.S. citizens, this
factor weighs against a finding that they may invoke the protections of the Suspension Clause --
just as it did in Boumediene,
Boumediene also provides little guidance on how to analyze the "status of the detainee"
factor. Here, petitioners (as in Boumediene) contest their classification as "enemy combatants."
lndeed, the parties even dispute what it means to be an enemy combatant. ln Boumediene, the
Supreme Court was able to resolve the Suspension Clause issue without ruling on the appropriate
definition of enemy combatant, and that issue has not been fully briefed here, either. Hence, this
Court will not, at this time, resolve the issue. But accepting respondents‘ definition for the sake
of argument, it becomes clear that the most fertile ground for inquiry is not the detainee's status
itself, but rather the process used to make that determination. Until recently,“ respondents used
a "substantially siinilar" definition of enemy combatant for detainees no matter where they are
held. 'l``r. at 45. Respondents previously described their definition of "enemy cornbatant" in the
Guantanarno habeas cases as follows:
’° A detainee's citizenship can also create friction with a host govemment. The Court
discusses this aspect of citizenship under the "practical obstacles" factor.
" On March l3, 2009, respondents filed a memorandum refining their definition of
"enemy combatant" for Guantanamo detainees, and abandoning that term. See, e.g., Hamlily v.
Obarna, Civ.A.No. 05-763 (dkt ent, #175). Respondents were careful to note that their new
"position is limited to the authority upon which the Govemment is relying to detain the persons
now being held at Guantanamo Bay, lt is not, at this point, meant to define the contours of
authority for military operations generally, or detention in other contexts." Ld_._ at 2. Indeed, on
February 20, 2009, respondents declined an opportunity to refine their position in these cases
involving Bagram detainees. See, e.&, Al Maqaleh v. Gates, Civ.A.No. 06- l 669 (dkt ent. #30).
Hence, for detainees at Bagram, respondents apparently adhere to the definition of "enemy
combatant" that they previously proposed in the habeas cases involving Guantanamo detainees
-22..
At a minimurn, the President's power to detain includes the ability
to detain as enemy combatants those individuals who were part of,
or supporting, forces engaged in hostilities against the United
States or its coalition partners and allies. This includes individuals
who were part of or directly supporting Taliban, al~Qaida, or
associated forces, that are engaged in hostilities against the United
States, its coalition partners or allies. This also includes any
persons who have committed a belligerent act or supported
hostilities in aid of enemy forces.
See. e.g.. Hamlily v. Obama. Civ.A.No. 05-763, Mem. in Support of Gov‘t Definition of Enemy
combatant at 2 rain eni #izs>_ f
This is a broad definition, under which mere "support" of forces engaged in hostilities can
justify an "enemy combatant" designation Respondents maintain that a broad definition is
necessary to provide the Executive with the kind of operational flexibility needed in the ongoing
armed conflict. Whatever the merits of such a broad definition, however, a necessary corollary is
a robust process to ensure that only detainees who pose the kind of threat that warrants detention
are designated as enemy combatants Hence, while this Court, like the Supreme Court in
Boumediene, finds little in the "status of the detainee" factor to counsel in favor of or against
extension of the Suspension Clause to Bagram detainees, the breadth of the definition of "enemy
combatant" utilized by respondents underscores the need for a meaningful process to ensure that
detainees are not improperly classified as enemy combatants
The third factor is the site of apprehension. Although Boumediene did not analyze this
factor in depth, the case law provides some insight. Apprehension within U.S. territory suggests
that one may invoke the protections of the Constitution, s_ee_ Yick Wo v. Hopkins, l 18 U.S. 356,
369 (1886), but it does not guarantee it, s_e_c_: Ex parte Quirin, 317 U.S. l, l5 (]942). And
apprehension outside U.S. territory cuts against a detainee claiming a right to habeas review, _s_e_e
Eisentrager, 339 U.S. at 768, but it does not preclude that claim entirely, §_e_e Boumediene,
l28 S. Ct. at 226]\ Here, as iii Boumediene, all petitioners were captured outside the United
States, and hence the site of apprehension "is a factor that weighs against a finding that they
have rights under the Suspension Clause."
At first glance, it may seem that the site of apprehension factor, like the citizenship
and status factors, should play little role in the ultimate disposition ofthese cases because
the Court is simply applying the teaching of Boumediene to similarly situated petitioners
But in fact the site of apprehension plays a more important, albeit more subtle, role than
the citizenship and status factors Guantanamo detainees have all been rendered there ~-
that is, they were apprehended in one country and eventually brought to the Guantanamo
Bay U.S. military facility in Cuba, with which they had no previous connection. The four
petitioners in these cases, too, have all been rendered to the U.S. military facility at Bagram
in Afghanistan. All four claim to have been captured outside of Afghanistan and brought
there to be detained by the United States, Three of the four petitioners had no prior connection
with Afghanistan at all. Petitioners like these, however, constitute only a very small fraction
ofthe Bagram detainee population ln respondents' most recent classified filing, they
represented that as of l\/larch lO, 2009, there were 597 detainees at Bagram. _See
Ai Maqaleh v, oates Civ.A.No. ceases rain erie i¢sz;. _
24-
Bagram detainees captured in Afghanistan are qualitatively different than Bagrarn
detainees who, like petitioners, were captured elsewhere. ’z The Boumediene Court was
motivated in no small part by the concem that the Executive could, under its argument, shuttle
detainees to Guantanamo "to govern without legal constraint." l28 S. Ct. at 2259. ln
pronouncing that "[o]ur basic charter cannot be contracted away like this," the Supreme Court
concluded that the Executive does not have "the power to decide when and where [the
Constitution‘s] terms apply." lcL lt is one thing to detain those captured on the surrounding
battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. lt
is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield
-- and then _br_ing them to a theater of war, where the Constitution arguably may not reach. Such
rendition resurrects the same specter of lirnitless Executive power the Supreme Court sought to
guard against in Boumediene ~- the concern that the Executive could move detainees physically
beyond the reach of the Constitution and detain them indefinitely.“ There is, then, a meaningful
distinction between Bagram detainees captured outside Afghanistan ~- like the petitioners here --
and Bagram detainees who were captured on the battlefield in Afghanistan. The site of
apprehension factor, therefore, is of more importance here than it was for the Guantanamo
detainees in Boumediene, and for these petitioners cuts in their favor because, for purposes of
respondents' current motion, all were apprehended outside of Afghariistan.
" There is no comparable situation for Guantanamo detainees who, of course, could not
have been captured in Cuba.
" See also Harndi, 542 U.S. at 535~36 ("We have long since made clear that a state of
war is not a blank check for the President when it comes to the rights of the Natiori's citizens.
Whatever power the United States Constitution envisions for the Executive in its exchanges with
other nations or with enemy organizations in times of conflict, it most assuredly envisions a role
for all three branches when individual liberties are at stake.") (internal citations omitted).
_g§_
ln sum, for these three factors, petitioners are not much different than the petitioners in
Boumediene, None are U.S. citizens or were apprehended in U.S. territory, so these factors cut
against them. While the status of the detainee factor neither helps nor hurts petitioners, the
"enemy combatant" determination is so broad -- it could easily ensnare someone who carmot
justifiably be detained as an incident of war -- as to underscore the need for a robust process for
making that determination These petitioners have a stronger claim to habeas rights through
application of the Suspension Clause than would Bagram detainees captured in Afghanistan, but
that does not materially distinguish them from the detainees at Guantanamo. The primary
comparison of these cases and Boumediene, then, rests on an analysis of the remaining three
factors: the site of detention; the process used to make the status deterrnination; and the practical
obstacles of litigating a petitioner‘s entitlement to the writ.
B. Size of Detention
The touchstone of the site of detention factor is the "objective degree of control" the
United States has over Bagrarn §e_e Boumediene, l28 S. Ct. at 2252. ln assessing the objective
degree of control, one question is whether Bagram is more like Guantana.rno Bay, the site at issue
in Boumediene, or like Landsberg Prison in post~World War ll Germany, the site at issue in
Eisentrager. The Supreme Court heldin Eisentrager that the Suspension Clause did not reach
detainees at Landsberg 339 U.S. at 785. ln Boumediene, however, the Court held that the
Suspension Clause has "full effect" at Guantanamo Bay. l28 S. Ct. at 2262. Yet the
Boumediene Court did not see fit to overrule Eisentrager, noting several "critical differences"
between Guantanamo and Landsberg Ld_. at 2260. The United States has "complete control and
_ jurisdiction" over Guantanamo, s_g Rasul, 542 U.S. at 471 ," but did not have such control at
Landsberg, which "was under the jurisdiction of the combined Allied Forces." Boumediene, 128
S. Ct. at 2260. Moreover, U.S. control over Guantanamo is "indeflnite," whereas the A1lied
Forces "had not planned a long~term occupation of Gerrnany." l_¢ This Court, then, must
examine both the degree and duration of U.S, "control" at Bagrarn to determine where Bagram
falls on the Guantanamo-Landsberg spectrum.
The U.S. presence in Afghanistan is govemed by both a lease and a Status of Forces
Agreement ("SOFA"). Read together, the United States appears to have near-total operational
control at Bagram. F or instance, paragraph 9 of the lease grants the United States exclusive use
of the premises at Bagram. _S_e_e Accommodation Consignment Agreement for Lands and
Facilities at Bagram Airfield 11 9 ("Bagram Lease") (attached as Exhibit A to Tennison Decl.,
_s_i_.i_gr_a). The SOFA allows U.S. personnel to enter and leave Afghanistan without a passport and
exempts U.S. vehicles, imports, and exports from taxation, regulation, or inspection. §e_e
Diplomatic Note No. 202 ‘{l{l 2, 5-6 (attached as Exhibit 2 to Resps.‘ Maqaleh Mot.). Indeed,
" The Supreme Court has summarized the key terms of the U.S. lease at Guantanamo as
follows:
The United States occupies the base [at Guantanamo], which comprises 45 square
miles of land and water along the southeast coast of Cuba, pursuant to a 1903
Lease Agreement executed with the newly independent Republic of Cuba in the
aftermath of the Spanish-American War. Under the agreernent, "the United States
recognizes the continuance of the ultimate sovereignty of the Republic of Cuba
over the leased areas," while "the Republic of Cuba consents that during the
period of the occupation by the United States the United States shall exercise
complete jurisdiction and control over and within said areas." ln l934, the parties
entered into a treaty providing that, absent an agreement to modify or abrogate the
lease, the lease would remain in effect "so long as the United States of America
shall not abandon the naval station of Guantanamo.“
Rasul, 542 U.S. at 471 (internal ellipses and brackets omitted).
..27_
unlike the U.S. lease at Guantanamo, the Bagram lease provides the United States with
assignment and reversion authority. _S_g§ Bagram Lease 11 4. Such operational control over
Bagrarn is unsurprising because, as respondents note, "that's going to be basically true of any
military facility that the United States runs anywhere in the world." Tr. at 39.
Yet there are several differences between the degree of U.S. control at Bagram and at
Guantanamo A SOFA governs the terms of the U.S. presence in Afghanistan, and the very
existence of a SOFA is a "manifestation of the full sovereignty of the state on whose territory it
applies." Resps.' Maqaleh Rep. at 13-15 (quoting U.N. Mandates and forces Agreements.
Comm. Testimony, Statement of Ruth Wedgwood, Feb. 28, 2008, House Foreign Affairs
Comm., Subcomm. on lnt'l Orgs., Human Rights, and C)versight); see also Resps.' Maqaleh Mot.
g at 6 n.5. 'l``he United States operates in Guantanamo without a SOFA. Nor does the mere
existence of a lease serve to transfer sovereignty over leased land to the United States. See, e.g.,
United States v. Spelar, 338 U.S. 217, 221-22 (1949). Moreover, there is a considerable non-
U.S. presence at Bagram -- in addition to the U.S. allies who operate out of the base, a sizable
population of At``ghan workers and contractors is there_. Tennison Decl. 1111 7-8; see also Tr. at 37.
In contrast, aside from a "handful" of Cuban workers who were "grandfathered" in, access to
Guantanarno is confined to U,S. personnel. §_Qe Tr. at 128.‘5 This almost-exclusive U.S.
presence at Guantanamo contributed to the Supreme Court’s conclusion that "[i]n every practical
sense Guantanamo is not abroad." Boumediene, l28 S. Ct. at 226l.
15 Petitioners also represent that Filipino, Jamaican, and Ecuadorian contractors are
permitted onto the military base at Guantanamo Tr. at lOl. Petitioners have not entered
anything into the record to substantiate that representation.
_2g-
Another potential difference between Bagram and Guantanamo concems U.S.
"jurisdiction." The Guantanamo lease provides the United States with "complete jurisdiction and
control" over the military base. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903,
U.S.-Cuba, Art. lll, T.S. No. 418 ("Guantanamo Lease") (attached as Exhibit 23 to Maqaleh
Opp``n). Of course, the term "jurisdiction" is nebulous and can mean many things g l_;lr_ii_t_e_d
States v. Rodgers, 466 U.S. 475, 479~80 (1984) (examining numerous potential definitions of
"jurisdiction"); see also Black‘s Law Dictionarv 867-71 (Sth ed. 2004) (setting forth over fifty
meanings of “jurisdiction," ranging from "[a] government's general power to exercise authority ~
over all persons and things within its territory" to "[a] court's power to decide a case or issue a
decree"). Petitioners take it to mean an amalgam of "civil jurisdiction" and "criminal
jurisdiction." _S_e_e_ Maqaleh Opp'n at 48~49. Even accepting for the sake of argument petitioners'
interpretation, it is clear that U.S. jurisdiction at Bagrarn is not quite as plenary as at
Guantanamo Although the Bagram lease is silent with regard to jurisdiction, the SOFA
addresses it. Under the SOFA, the United States has criminal jurisdiction over U.S. personnel.
SOFA1] 7. Criminal jurisdiction over Afghan workers or over allied personnel is beyond U.S.
authority. The SOFA further provides that the United States and Afghanistan waive civil claims
against one another, but it does not provide the United States with jurisdiction over civil claims
brought by individuals. Lc_i_. jj 9. To be sure, these provisions grant the United States some
limited jurisdiction at Bagram -~ but there are no limits on U.S. jurisdiction at Guantanamo.
There is, then, lesser U.S. "jurisdiction" at Bagram than at Guantanamo
But the differences in control and jurisdiction set forth above do not significantly reduce
the "objective degree of control" the United States has at Bagram. The existence of a SOFA and
..29.
the presence of non-U.S. personnel does not affect the actual control the United Statesexercises
at the Bagram detention facility, which is practically absolute. _S_Q Resps.' Maqaleh Mot. at 22
("[T]he United States would not detain enemy combatants on any long-term basis at a facility
that it did not control."). Nor do the differences in jurisdiction drastically undercut the objective
degree of control at Bagram. "Jurisdiction," like "sovereignty," is merely a label, and
Boumediene rejected the argument that a label like "sovereignty" is determinative in assessing
the reach of the Suspension Clause. _S_eg l28 S. Ct. at 2253.‘° Perhaps the difference in
jurisdiction precludes the United States from operating at Bagram, as it does at Guantanamo,
entirely free from the scrutiny of the host country. As a practical matter, however, when
assessing day~to~day activities at Bagrarn, the lack of complete "jurisdiction" does not
appreciably undermine the conclusion that the United States exercises a very high "objective
degree of control."
This conclusion is reinforced when comparing the control the United States exercises at.
Bagram to U.S. control at Landsberg Prison. The Court cannot, on the ``record before it, offer an
item~by-item comparison of Bagram and Landsberg. But it is apparent that the combined Al1ied
Forces operating in post-World War ll Germany provided a more meaningful check on one
another than U.S. allies in the current conflict have on U.S. control at Bagram. F or example, the
Declaration made at the close of World War fl does not provide the United States with any
special role among the four "Allied Representatives" -- the United States, the Soviet Unjon, the
'° J ust as Cuba "effectively has no rights as a sovereigrr" under the Guantanamo lease, §§
ig at 22 52, under the lease and SOFA at Bagrarn, Afghanistan retains few if any rights as a
sovereign relating to the detention facility and the detainees held there. ln Eisentrager, the Court
used "sovereignty" in the sense of the control asserted by the U.S. military over the detention
facility, §_e_e i_d_. at 2257, which is effectively as complete at Bagram as at Guantanamo and more
complete at Bagram than at Landsberg.
-30-
United Kingdom, and France. §_e§ Declaration Regarding the Defeat of Gerrn-any and the
Assurnption of Supreme Authority with Respect to Gerrnany, June 5, 1945,.60 Stat. 1649,
T.l.A.S. No. l520. Similarly, the Agreements on iGermany four years later established that the
United States and its allies would work together in exercising their retained powers over the three
westem zones of Gerrnany. §e_e Agreements Respecting Basic Principles for Merger of the Three
Western German Zones of Occupation, and Other Matters, Apr. 8, 1949, 63 Stat. 3819, T.I.A.S.
No. 2066. To be sure, the United States is supported by allies in Afghanistan. But the
relationship is not the same as that of the Allied Forces after World War ll. Compare Agreement
on Control Machinery in Germany, arts. l-3, Nov, l4, 1944, 5 U.S.T. 2062, T.I.A.S. No. 3070
(describing "joint" control of allies and requiring action by unanimous decision), _vy_i_t_h Bagram
Lease 1{ 9 (providing United States with "exclusive" control at Bagram). And it is the United
States, not U.S. allies, that detains people at the Bagram Theater Intemment Facility and that
operates (and hence fully controls) that prison facility and its occupants, which was not the case
at Landsberg §_e_§ Hirota v. MacA_r_'_th_u_;, 338 U.S. 197, 198 (1948) (per curiam) (noting that the
post-World War ll military tribunals in Gennany were created by General MacArthur as "the
agent of the Allied Powers" and were therefore not "tribunal[s] of the United States"). Thus,
although U.S. control over Bagram is not quite as absolute as over Guantanamo, the United
States exercises a significantly greater "objective degree of control" over Bagram than it did over
Landsberg in post-World War ll Germany.
Comparing the objective degree of control the United States has exercised at sites of
detention separated by time and space is necessarily an exercise in rough approximation. United
States control and jurisdiction at Bagram is slightly less complete than at Guantanamo But on
_31-
the record before the Court, the United States does not share control at Bagrarn the way the
Allied Forces shared control at Landsberg. On the Guantanamo-Landsberg spectrum, then, the
objective degree of control the United States has at Bagrarn resembles U.S. control at
Guantanamo more closely than U.S. control at Landsberg.
in assessing the site of detention, Boumediene also referenced the duration of the U.S.
presence there. l28 S. Ct. at 2261. The United States has occupied Guantanamo for over 100
years. _I_c_i_. at 2258. For much of that time, the occupation has been in the face of a hostile host
country -- the United States is at Guantanamo despite its relationship with Cuba, not because of
it. The U.S. presence at Landsberg Prison stands in stark contrast. At the time of Eisentrager,
the U.S. presence in Gerrnany was of a recent vintage. The Allied Forces declared the defeat of
Germany in June 1945 -- thereby initiating the U.S. occupation -- and Ei§entrager was decided in
June 1950. Similarly, the United States has been at Bagram for less than a decade. The United
States began operations in Afghanistan in 2001 and executed diplomatic arrangements in 2002.
'I``hat is a far cry temporally from the century-long U.S. presence at Guantanamo
But the Court must consider the future intentions of the United States at Bagrarn as well.
Since the lnsular Cases more than a century ago, the Supreme Court has looked to future
intentions in deciding whether the Constitution reaches distant lands. §_§:_g Boumediene, 128 S.
Ct. at 2254 (citing Dorr v. United States, 195 U.S. 138 (1904), and , 182 U.S.
244 (1901)) (explaining doctrine of "territorial incorporation"). ln B_ggm__§c_lie._ri§, the Supreme
Court distinguished between Guantanarno, where the United States has evidenced an intent to
stay indefinitely, and Landsberg, where the Allies did not plan a long-term occupation ld_._ at
226l. At Bagram, the United States has declared that it only intends to stay until the current
_3;;-
military operations are concluded and Afghan sovereignty is fully restored. _Sge Joint Declaration
of the United States-Afghanistan Strategic Partnership (attached as Exhjbit A to Resps.' Maqaleh
Rep.); see also Tennison Decl. il 2. That promise may be no more than a distant hope given the
indefinite nature of our global efforts against terrorism and recent developments in Afghanistan,
but it remains the declared intent of the United States. In that respect, U.S. intentions at Bagram
differ from those at Guantanamo.
Petitioners take issue with the stated intentions of the United States. They argue that the
lease provides the United States with exclusive control over when it expires Petitioners also
maintain that extensive construction and expansion at Bagrarn evidences an intent to remain
indefinitely _S_e_g Maqaleh Opp'n at 8. Taking the latter argument first, the construction of sturdy
structures and familiar amenities does not weigh into the constitutional analysis. This Court is in
no position to tell the military what materials to use in its buildings and what amenities are likely
to maintain morale for U.S. personnel. During other recent periods of "wai'time" presence in
foreign lands, particularly Vietriam, similar extensive facility construction efforts occurrcd. As
to the lease, petitioners rightly point out that the United States absolutely controls the duration of
the U.S. presence at Bagram. _S_e§ Bagram Lease 1l 4 ("[T]his Agreement . . . shall continue until
the United States or its successors determine that the Premises are no longer required for its
use.")." The same is true at Guantanamo. §§ Guantanamo Lease, Art. III (providing that the
lease "shall continue in effect . . . [s]o long as the United States of America shall not abandon the
" Although the preamble of the Bagrarn Lease provides that it is entered "in consideration
of the mutual benefits to be derived therefrom," the normal rules of contractual interpretation
give express terms of a contract precedence over text from a preamble See, e.g., Crowell v.
Gould, 96 F.2d 569, 573 (D.C. Cir. 1938).
said naval station of Guantanamo . . . ."). But according to respondents, long-term leases for
military bases are not uncommon.“‘ _S_ee Tr. at 38 ("[I]f you look at some leases from the World
War ll era, yes, they made note that there are specific durations, like 99 years, which is
practically forever."). Petitioners' contention that U.S. intentions at Bagram are not what
respondents say they are might carry more weight if hostilities had ended and the United States
still remained at Bagram. That is not the case now. Hostilities are ongoing and petitioners have
not set forth persuasive evidence suggesting that the United States does not intend to quit Bagram
once those hostilities have abated, even though the end of hostilities in Afghanistan remains well
in the future.
ln sum, several elements enter into the site of detention analysis. ln assessing the
"objective degree of control," Bagram lies much closer to Guantanamo than to Landsberg. As to
the duration of the U.S. presence, on the other hand, Bagram appears to be closer to Landsberg
than Guantanarno -- the United States has been at Bagram for less than a decade and has
disavowed any intention of a permanent presence there. Therefore, although Bagram does not
align squarely with either Landsberg or Guantanamo, this Court cannot conclude that Bagram,
like Guantanamo, is "not abroad." §_ge_ Boumediene, l28 S. Ct. at 2261. Whereas the site of
detention factor in Bog;,r_iediene plainly supported application of the Suspension Clause (and
hence habeas ri ghts) to the Guantanamo detainees, it does not favor petitioners to quite the same
extent here. Nonetheless, it is still fair to say that the United States has a high objective degree of
control at Bagram.
" The parties have not entered the Landsberg lease into the record.
_34_
C. Adequacy of Proces‘s
The adequacy of process factor requires an assessment of the process used to make status
determinations at Guantanamo and the process provided to petitioners in _E_i.s_entrgger. Once those
two points of comparison are established, the Court can compare the process used to make status
determinations at Bagram. Before commencing with that analysis, however, the Court must
resolve a threshold issue. Respondents argue that adequacy of process does not factor into the
analysis of whether the Suspension Clause applies. _S_eg Resps.' Maqaleh Rep. 19-20. Rather,
they maintain, adequacy of process is only relevant to the second part of the Suspension Clause
analysis: whether Congress has provided an adequate substitute for habeas. Although
respondents are correct that adequacy of process lies at the center of the "adequate substitute"
prong, they are incorrect that adequacy of process is irrelevant to the first part of the inquiry. ln
Bongiediene, the Supreme Court clearly enumerated "adequacy of the process" as one of the
factors that determine whether the Suspension Clause applies. l28 S. Ct. at 2259. lndeed, unlike
the cursory analysis of the first three factors discussed earlier, the Supreme Court devoted several
paragraphs of analysis to this factor, comparing the process used in Eisentrager to that at
Guantanamo. 11 at 2259-60. Hence, this Court concludes that under Bognediene, it must
consider adequacy of process in determining the reach of the Suspension Clause. '
In Boumediene, the Supreme Court described the following process used to determine
petitioners' status as "enemy aliens" in Eisentrager:
The records from the Eisentrager trials suggest that, well before the
petitioners brought their case to this Court, there had been a
rigorous adversarial process to test the legality of their detention.
The Eisentrager petitioners were charged by a bill of particulars
that made detailed factual allegations against them. _S_e_e_: l4 United
_35.
Nations War Crimes Commission, Law Reports of 'l``rials of War
Criminals 8-l0 (l 949) (reprint 1997). To rebut the accusations,
they were entitled to representation by counsel, allowed to
introduce evidence on their own behalf, and permitted to cross-
examine the prosecution‘s witnesses. _S_e_e_ Memorandum by
Command of Lt. Gen. Wedemeyer, Jan. 2l, 1946 (establishing
"Regulations Governing the Trial of War Criminals" in the China
'l``heater), in Tr. of Record in Johnson v. Eisentrager, O."I``.l949, No.
306, pp. 34-40. '
128 S. Ct. at 2259-60. The Supreme Court went on to note that the Combatant Status Review
Tribunal ("CSRT") hearings at Guantanamo "are far more limited, and . . . fall well short of the
procedures and adversarial mechanisms that would eliminate the need for habeas corpus review."
l_c_i_. at 2260. The Supreme Court described the following deficiencies in the CSRT process:
Although the detainee is assigned a "Personal Representative" to
assist him during CSRT proceedings, . . . that person is not the
detainee's lawyer or even his "advocate." The Govemment‘s
evidence is accorded a presumption of validity. The detainee is
allowed to present "reasonably available" evidence, but his ability
to rebut the Government‘s evidence against him is limited by the
circumstances of his confinement and his lack of counsel at this
stage. And although the detainee can seek review of his status
determination in the Court of Appeals, that review process cannot
cure all defects in the earlier proceedings.
_l_cL (internal citations omitted).
The process used to determine a detainee's status at Bagram is described in the Tennison
Declaration. The initial "enemy combatant" determination is made "in the f``ield." Tennison Decl.
jill l l- l2. F or detainees at Bagrarn, the initial determination is reviewed within 75 days, and then
every six months thereafter.’° lgi_,il l3. 'l``he reviewing body is the Unlawful Enemy Combatant
Review Board ("UECRB"), a panel of three commissioned officers. The UECRB reviews "all
'° The process is slightly different for individuals captured in Afghanistan but not
detained at Bagrani. _S_e_c_: Tennison Decl. ‘ll l2.
.3 6_
relevant information reasonably available," and detainees have the opportunity to make a written
staternent.z° L<_L 1[‘[} 12-13. The UECRB then makes a recommendation by majority vote to the
Commanding General as to the detainee's status. ld_.‘\l 13. There is no recourse to a neutral
decision-maker
Respondents concede, as they must, that the process used for status determinations at
Bagrarn is less comprehensive than the CSRT process used for the Guantanamo detainees Tr. at
53. Focusing the inquiry on the flaws Boumediene identified in the CSRT process,' the UECRB
process is plainly less sophisticated and more error-prone Unlike a CSRT, where a petitioner
has access to a "personal representative," Bagrarn detainees represent themse1ves. Obvious
obstacles, including language and cultural differences, obstruct effective self-representation by
petitioners such as these. Detainees cannot even §p_e_e_zl<_ for themselves', they are only permitted to
submit a written statement But in submitting that statemcnt, detainees do not know what
evidence the United States relies upon to justify an "enemy combatant" designation -- so they
lack a meaningful opportunity to rebut that evidence Respondents' far-reaching and ever-
changing definition of enemy combatant, coupled with the uncertain evidentiary standards,
further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram
detainees receive no review beyond the UECRB itself.
This Court need not determine how extensive process must be to stave off the reach of the
Suspension Clause to Bagram. lt suffices to recognize that the UECRB process at Bagram falls
well short of what the Supreme Court found inadequate at Guantanamo. _S_e_e Boumediene, l28
2° Since April 2008, detainees being screened for the first time may appear before
UECRB in person. _S§_e Tennison Decl. 11 l3. Because all petitioners in these cases began their
detention long before April 2008, this provision is inapplicable to them.
..3']-
S. Ct. at 2260. Hence, while the important adequacy of process factor strongly supported
extension of the Suspension Clause and habeas rights in Boumediene, it even more strongly
favors petitioners here.
D. Praclical Obslacles
Finally, the Court must consider the practical obstacles involved in extending the
Suspension Clause to Bagram. The Supreme Court devoted significant attention to this factor in
Bournediene, focusing on the impact that habeas review would have on the military mission and
on whether litigating habeas cases would cause friction with the host govemment. l28 S. Ct. at
2261-62. ln concluding that habeas review would not raise substantial practical obstacles in the
way of the military mission, the Court noted that the arguments might "have more \weight" if
Guantanamo "were located in an active theater of war." ld_. at 2262.
Habeas review could conceivably impact the military mission in several ways. The
security of the detention facility is relevant. Habeas review is not impractical when detainees are
held at secure military facilities, like the U.S. facility at Guantanamo. Boumediene, 128 S. Ct. at
2261. Still, the practical difficulties of providing habeas review are enhanced in an active war
zone. For example, as noted in Eisentrager, the Allied Forces administering Landsberg Pris0n
were threatened by "enemy elements, guerilla fighters, and ’were-wolves."‘ Boumediene, 128 S.
Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784). In this regard, Bagram resembles Landsberg
more than Guantanamo, since it, like Landsherg, is under constant threat by suicide bombers and
other violent elements. See, e.g., §omber Strikes Outside Main U.S. Bas'e in Afghagistan, Voice
Am. Press Releases & Docurnents, 2009 WLNR 4173359 (Mar. 4, 2009); see also Tr. at 20.
_3g-
United States control over the detention facility is also relevant. As discussed in greater
detail earlier, the United States exercises near-total control over Bagrarn even if it does not have
complete "jurisdiction" there. lndeed, the military exercises such control at any military base it
establishes, Tr. at 39, which has allowed the United States to convene wartime tribunals during
previous conflicts. Those tribunals have provided detainees with far greater process than the
UECRB process at Bagram. For example, counsel for petitioners represented that during the first
Persian Gulf War, l,ZOU detainees had their status determined by "cornpetent tribunals" within
the meaning of the Geneva Conventions. Tr. at 8 l. But the Court need not rely on that
representation alone because, even in Eisentrager_, the petitioners received a "rigorous adversarial
process to test the legality of their detention" before a military tribunal in Nanl<>vvlafi530 U.S. 327, 348 (2000). Klein held that the statute was unconstitutional
because Congress may not "prescribe rules of decision to the J udicial Department of the
government in cases pending before it." _K_le_in_, 80 U.S. at l46. Petitioners maintain that the
factual determination by the Executive that a detainee is an enemy combatant, combined with
Congress‘s enactment of MCA § 7(a), which strips federal courts of jurisdiction to consider
enemy combatants' habeas petitions, runs afoul of Klein.
Respondents devote a total of two paragraphs to this argument in their reply. §e_e Resps.
Maqaleh Rep. at 5-6. Rather than addressing Klein, respondents argue that the MCA is a proper
_43-
exercise of Congress‘s power to define the jurisdiction of Article III courts. But Klein itself
involved an improper exercise of that same power, so respondents' cursory invocation of it does
not resolve the argument §eg Klein, 80 U.S. at 146. Moreover, many courts have provided a
gloss on the core Klein principle, thus complicating a straightforward application of Klein to this
case. See. e.g,, Miller, 530 U.S. at 347-48. And it is apparent that Klein maintains vitality today.
§_e§ id_. (considering argument that l8 U.S.C. § 3626(e)(2) is an unconstitutional "rule of
decision" under Klein). This Court, then, will order further briefing on the applicability of Klein
and its progeny to Wazir‘s case.
B. Permanent$uspensz'on of the Writ
Petitioners also maintain that the MCA is unconstitutional because it works a permanent
suspension of the writ of habeas corpus. _S_e_e Wazir Opp'n at 22-29.- Although petitioners raise
this argument separately from the primary Suspension Clause issue, resolution of the two issues
is the -same. If the Suspension Clause does not extend to a detainee, then the detainee cannot
claim its protections. For the reasons explained above, the Court holds today that petitioners al
Maqaleh, al Bakri, and al-Najar may invoke the protection of the Suspension Clause but that
petitioner Wazir may not. Hence, for Wazir it does not matter whether Congress has
permanently suspended the writ or whether Congress has neglected to provide an adequate
substitute for review. Petitioners' argument that MCA § 7(a) constitutes an unlawful permanent
suspension of the writ, then, does not affect the outcome of these cases, including Wazir's.
C. Status Determinations by a Compez‘ent Tribunal
According to petitioners, MCA § 7(a) does not apply to them because they have not
properly been determined to be "enemy combatants" §e_e_ Wazir Opp'n at 29~31. That provision
-49-
strips courts of jurisdiction to consider a habeas petition filed by an alien "who has been
determined by the United States to have been properly detained as an enemy combataiit.“
According to petitioners, MCA § 3 requires status determinations to be made by a CSRT or by
"another competent tribunal," but the only tribunal these petitioners have had access to is the
UECRB. The UECRB, the argument goes, is not a "competent tribunal," so no Bagram detainee
has been "properly detained as an enemy combatant." Respondents counter that MCA § 3 is
irrelevant to the interpretation of MCA § 7(a). §jc:_e_ Resps.‘ Maqaleh Rep. at 4-5. Section 3 of the
MCA created a new chapter of the U.S. Code, l0 U.S.C. § 948a, which govems trials of unlawful
enemy combatants by military commission. Section § 7(a), on the other hand, amended an
entirely different statute ~- the federal habeas statute, 28 U.S.C. § 2241.
Respondents have the better of this argument. The jurisdiction-stripping provision of the
federal habeas statute is not limited to enemy combatants who have been designated as such by a
"competent tribunal." Only when an enemy combatant is facing a military commission does the
"competent tribunal" requirement of MCA § 3 apply. None of the petitioners here have been
subjected to a military commission. On its face, § 224l(e) provides the United States with
discretion as to who may be "properly detained" as an enemy combatant. That discretion is
cabined not by MCA § 3, but by the DTA, which requires the Department of Defense to report to
Congress on "its procedures for determining the status of enemy combatants . . . ." Tr. at 56; Yg:_
a_s_o_ DTA § 1005. Under MCA § 7(a), then, U.S. courts lack jurisdiction over habeas cases filed
by Bagram detainees unless that provision is unconstitutional. And although MCA § 7(a) is
unconstitutional as applied to some detainees, it is not unconstitutional as applied to Wazir.
Hence, MCA § 3 does not provide him with a viable alternate vehicle for habeas review.
..50-
D. Constz'lutional, Szatu!ory, and ]nternational Righ!s
Petitioners' final argument is that respondents have violated their constitutional, statutory,
and intemational rights. _S_e§ Wazir Opp‘n at 55-62. The constitutional provision they point to is
the Due Process Clause. Petitioners rely in large part on Hamdi, which held that U.S. citizens are
entitled to the protections of the Due Process Clause. But none of these petitioners are U.S.
citizens, and the D.C. Circuit has recently observed that "the due process clause does not apply to
aliens without property or presence in the sovereign territory of the United States." Kiyemba v.
Obarna, 555 F.3d 1022, 1026 (D.C. Cir. 2009). Moreover, to the extent petitioners seek the
substantive protections of the Due Process Clause, that question is not now before this Court. At
this stage, the question presented is whether the Court has jurisdiction, not whether their due
process rights have been violated. And Boumediene only addresses the extension of the
Suspension Clause, and hence habeas jurisdiction, to detainee petitioners, Petitioners' argument
that their detention violates the "rule of law" is similarly unavailing. They do not point to a "law"
that has been violated that would give rise to this Court's jurisdiction, but instead invoke broad
separation-of~powers themes. This Court has already addressed those themes throughout its
Suspension Clause analysis.
Finally, petitioners argue that their detention violates international law. But whatever
treaties or norms might otherwise find their way into domestic law, the MCA unambiguously,
and subsequently, removed federal court jurisdiction to consider habeas cases filed by petitioners
such as these. _S_ce_e Fund for Anirnals. lnc. v. Kempthorne, 472 F.3d 872, 878 (D.C. Cir. 2006)
("[T]he Supreme Court has long recognized that a later-enacted statute trurnps an earlier-enacted
treaty to the extent the two conflict This is known as the last-in-time rule."). The question, then,
-51-
is again whether the MCA is constitutional as applied to these petitioners, And, as explained
throughout this opinion, for three of the four petitioners, it is not. But for Wazir, as to whom
MCA § 7(a) is constitutional, the last~in-time enactment of MCA § 7(a) overrides the
intemational law principles on which petitioners rely, and hence his international law arguments
do not provide a separate means for testing the legality of his detention.
IV. Conclusion
This Court lacks statutory jurisdiction to entertain these four habeas petitions. But MCA
§ 7(a), the statute stripping habeas jurisdiction, is unconstitutional as to three of the four
petitioners, Under Boumediene, Bagram detainees who are not Afghan citizens, who were not
captured in Afghanistan, and who have been held for an unreasonable amount of time -- here,
over six years ~- without adequate process may invoke the protections of the Suspension Clause,~
and hence the privilege of habeas corpus, based on an application of the Boumediene factors.
Three petitioners are in that category. Because there is no adequate substitute for the writ of
habeas corpus for Bagram detainees, those petitioners are entitled to seek habeas review in this
Coun.” Accordingly, respondents' motions to dismiss the habeas petitions of petitioners al
Maqaleh, al Bakri, and al-Najar are denied As to the fourth petitioner, Wazir, the Court
concludes that the possibility of friction with Afghanistan, his country of citizenship, precludes
22 This holding applies only to petitioners' habeas petitions seeking release; it does not
apply to petitioners' challenges to their conditions of confinement See, e.g., Maqaleh Am.
Habeas Pet. 11 36-40, 42-47. Challenges to conditions of confinement are barred by the MCA.
_S_eg 28 U.S.C. § 224l(e)(2). ln Boumediene, the Supreme Court specifically noted that it did not
address "the reach of the writ with respect to claims of unlawful conditions of treatment or
confinement." l28 S. Ct. at 2274. In another context, this Court has concluded that § 2241 (e)(2)
continues to strip federal courts of jurisdiction over challenges to conditions of confinement at
Guantanamo. §c_:_e Khadr v. Bush, 587 F. Supp. 2d 225, 235-37 (D.D.C. 2008). But this Court
will not reach, at this stage, whether § 2241 (e)(Z) continues to strip federal courts of jurisdiction
over challenges to conditions of confinement at Bagram.
_52-
his invocation of the Suspension Clause under the Boumediene balance of factors. Although the
Court is not persuaded that any of petitioners' other arguments provide an alternate vehicle for
habeas review for Wazir, the arguments regarding I_<_l_ei_n and its progeny are at present
insufficiently developed Hence, the Court will defer ruling on respondents' motion to dismiss
his habeas petition. A separate order accompanies this opinion.
S0 ORDERED.
/s/
JOHN D. BATES
United States District Judge
Date: April 2, 2009
_53_