*1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
-------------------------------------------------------
: HAJI ABDUL WAHID, et al. , : CASE NO. 1:10-CV-00320
:
Plaintiffs, :
: vs. : OPINION & ORDER
: [Resolving Doc. Nos. 15, 18] ROBERT GATES, Secretary of Defense, :
et al ., :
:
Defendants. :
:
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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
With this case, Petitioner Zia-ur-Rahman seeks a writ of habeas corpus to stop his detention
at the Bagram Air Force base in Afghanistan. [ 2/ Doc. 13.] The Respondents move to dismiss and
say that controlling circuit precedent in
Al Maqaleh v. Gates
,
I. Background
On February 26, 2010, the Petitioner—a citizen of the Islamic Republic of Afghanistan—filed
1/
The Honorable James S. Gwin of the United States District Court for the Northern District of Ohio, sitting by
designation.
2/
On September 7, 2010, the Court granted Haji Abdul W ahid’s motion to dismiss himself as a petitioner in this
action. [
See
Doc. 10.] Accordingly, Zia-ur-Rahman is the only remaining petitioner.
*2
a petition for habeas corpus challenging his detention by the United States military at Bagram
Airfield Military Base in Afghanistan. [ 3/ Doc. 15.] The Petitioner (through next-friend Haji Noor
Saeed) alleges that the United States military captured him during a night raid of his home in
December 2008 and that he “has been held for more than two years without charge, without access
to counsel, and without any judicial review or independent and impartial administrative process
through which he can challenge his illegal arrest and detention.” [Doc. 19 at 3.] He says he poses
no threat to the United States or to the coalition forces. [Doc. 19 at 6.]
Between May and December 2010, this case was stayed pending the decision in .
[Docs. 8, 9.] In December 2010, the Petitioner filed an Amended Petition alleging that the facts of
his situation so materially differ from the facts in that the three-prong
Boumediene
4/
analysis—as implemented in
Al Maqaleh
—favors extending the Suspension Clause to him.
[Doc. 13];
Boumediene v. Bush
,
II. Legal Standard
A challenge to subject-matter jurisdiction “focuses on the court’s power to hear the plaintiff's
claim, . . . [and] imposes on the court an affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority.”
Grand Lodge of Fraternal Order of Police v. Ashcroft
,
III. Analysis
A. The Legal Framework
With this case, this Court examines the availability of the writ of habeas corpus to noncitizens
held by the United States but held beyond the sovereign territory of the United States. Until
Boumediene v. Bush
, the writ seemed unavailable to noncitizens held outside United States territory.
In
Johnson v. Eisentrager
,
Eisentrager remained controlling until a series of Court decisions and Congressional reaction to those decisions beginning with Rasul v. Bush , 542 U.S. 466 (2004), where the Court found jurisdiction for a habeas challenge to detention at the Guantanamo Bay Naval Base in Cuba. Reacting, Congress adopted, and President Bush signed, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739 (2005) (codified at 28 U.S.C. § 2241(e) (2006)). Among other *4 things, that Act provided that “no court . . . shall have jurisdiction to hear or consider . . . an application for a writ of habeas corpus filed by . . . an alien detained by the Department of Defense at Guantanamo Bay . . . .” 28 U.S.C. § 2241(e) (2006). Then the Supreme Court decided Hamdan v. Rumsfeld , 548 U.S. 557 (2006), and held that the 2005 law did not strip federal courts of jurisdiction to hear petitions for writs of habeas corpus on behalf of Guantanamo detainees that were pending at the time of the law’s enactment. Further responding to the Hamdan decision, Congress passed the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006), and closed any statutory claim of habeas jurisdiction.
In deciding this challenge to the Petitioner’s detention at the Bagram Air Base and at its
Bagram Theater Internment Facility, the Court examines whether it has habeas corpus jurisdiction.
The Supreme Court’s opinion in
Boumediene
largely controls the analysis. In
Boumediene
, the Court
acknowledged that statute-based habeas jurisdiction had been ended by the Military Commissions
Act. Nonetheless, the Court examined whether the Suspension Clause afforded a constitutional basis
for jurisdiction irrespective of whatever statutory jurisdiction existed.
Boumediene
,
(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 detainees entitlement to the writ of habeas corpus.
Id. at 766 (emphases added).
After examining past precedent, the Court emphasized the practical effects that would run from extending habeas jurisdiction: the “common thread” uniting these precedents was “the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Id. at *5 764. The geographic reach of habeas corpus should employ a practical multi-factor balancing test, not a simple and categorical analysis of the location where the detention occurred. See id. at 751-54. In Boumediene , the Court found that the Suspension Clause applied extraterritorially to the detainees because, among other factors, the review process the Guantanamo detainees received was inadequate. Perhaps more important, Guantanamo was “within the constant jurisdiction of the United States” and extending habeas jurisdiction to Guantanamo was not unduly impractical. Id. at 767-68.
In
Al Maqaleh
, the D.C. Circuit applied the
Boumediene
analysis to a case nearly identical
to this case and found that the district court did not have habeas jurisdiction to hear a challenge to
detention by three aliens detained at Bagram.
Al Maqaleh
,
approach identified in Boumediene .
As to the first factor, the court concluded that the “adequacy of process” prong favored extending habeas jurisdiction to the Bagram detainees because they received even less review of their detention than had been afforded to the detainees in Boumediene . However, the court found the remaining two Boumediene prongs, and especially the third prong, weighed “heavily” in favor of the United States’ position. The court reasoned that the “nature of the site” prong did not support extending habeas jurisdiction to the Bagram detainees because the United States maintained no sovereignty over Bagram and the United States’ presence in Afghanistan was welcomed by the Afghan government. Bagram did not approximate the United States’ long-standing and unending control of Guantanamo. Id. at 96.
*6 Similarly, the “practical obstacles” prong—the most important prong for the D.C. Circuit Court—did not favor giving habeas relief to the Bagram detainees. Afghanistan was in a theater of war, where concerns of conducting trials and issuing the writ at a facility exposed to the “vagaries of war” were present. Id at 97. Accordingly, the D.C. Circuit dismissed the case for lack of subject- matter jurisdiction.
B. Motion to Dismiss for Lack of Subject-Matter Jurisdiction In the present case, the three-step constitutional analysis that the D.C. Circuit Court used in Al Maqaleh controls. This decision is, therefore, compelled by the established precedent of Al Maqaleh —the Court concludes that the Suspension Clause does not extend to this Petitioner and that this Court has no subject-matter jurisdiction over the case. The Petitioner’s newly presented facts, even when taken in the light most favorable to him, are too similar to warrant a different conclusion than that of .
1. Adequacy of Process Because the court found that the “adequacy of process” prong supported the extension of the Suspension Clause to the Bagram detainees, this Court considers whether the Petitioner’s facts alter the Al Maqaleh analysis in a way that becomes determinative. They do not.
The Petitioner spends the bulk of his Amended Petition describing the inadequacies of the current, “woefully inaccurate,” review boards but does not allege that the current review process is worse than the process examined in the Al Maqaleh decision. [Doc. 19 at 9-22.] In fact, the Petitioner acknowledges that the current review boards are a “marginal improvement over [those in place during the Al Maqaleh decision],” [Doc. 19 at 8], and that “[the] procedures have all the same fundamental flaws as the D.C. Circuit identified,” [Doc. 19 at 3]. Though the Petitioner and the *7 Respondents disagree on the actual effects of the new Bagram processes, those procedures do not compel a different conclusion than Al Maqaleh .
Because the Petitioner makes no argument that he is differently situated than the petitioners in (this Petitioner is a non-U.S. citizen held as an enemy alien), this Court shares the Al Maqaleh conclusion: the “adequacy of process” prong weighs in [the] Petitioner’s favor but is not strong enough to offset the other legs of the Boumediene constitutional analysis.
2. Nature of the Site
The court based its analysis of the “nature of the site” prong on the location of
the detainees’ apprehension, the sovereignty the United States held over the site of detention, and
whether the United States was present at the location of the detention in the face of a hostile
government. ,
*8 The Court recognizes certain inconsistencies about—and the unsettled nature of—the United States’s intentions for Bagram. But the lack of a certain end-date is not sufficient to extend the writ of habeas corpus to detainees. The court, when criticizing a similar position, cautioned that “such an interpretation would seem to create the potential for the extraterritorial extension of the Suspension Clause to noncitizens held in any United States military facility in the world, and perhaps to an undeterminable number of other United States-leased facilities as well.” , 605 F.3d at 95.
Indeed, in the two years since the holding, the relevant inquires for the “nature of the site” prong remain nearly unchanged: the Petitioner was apprehended abroad, the United States’ presence in Bagram is by permission of the Afghan government, and the United States makes no claims of sovereignty over Bagram in conflict with the Afghan government. Put simply, the Bagram occupation still differs too greatly from the Guantanamo occupation for the ‘nature of the sites’ prong to weigh in the Petitioner’s favor when measured against the circumstance that existed in Boumediene :
The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram . . . there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. . . . While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram.
Id. at 97. Accordingly, while the Petitioner’s contentions move this Court to find the “nature of the site” prong perhaps weighs less strongly in favor of the Respondents’ position, this second prong still weighs against the application of the Suspension Clause to the Petitioner.
3. Practical Obstacles
The third prong, the “practical obstacles” prong, most favors the Government’s position that
*9
the Suspension Clause does not extend habeas corpus protection to the Petitioner. The
Al Maqaleh
court’s “practical obstacles” evaluation focused on Bagram’s location in a theater of war and “in a
territory under neither the
de facto
nor
de jure
sovereignty of the United States and within the
territory of another
de jure
sovereign.”
Al Maqaleh
,
The Petitioner also points out that the United States apparently cooperated with fifty-two Afghan criminal proceedings that have occurred at Bagram using Afghan judges and Afghan prosecutors in the last two years. [Doc. 19 at 26.] These cases provide some support for the Petitioner’s argument that habeas proceedings might proceed even amidst the Afghan turmoil. But this evidence is insufficient to distinguish the factual background of this case from the factual background the D.C. Circuit Court reviewed in Al Maqaleh . If anything, the Afghan criminal proceedings support the proposition the United States government is attempting to transfer control of Bagram to the Afghan government more quickly.
As at the time of the decision, Bagram is in a highly active war-zone and remains under the sovereignty of the Afghan government where the same, if not more, “practical obstacles” are present. The overwhelming weight of the “practical obstacles” prong, considered alongside the analysis of the “nature of the site” prong, lead this Court to the same conclusion of : this Court does not have jurisdiction to entertain this habeas claim.
*10
C. Motion for Jurisdictional Discovery
The Petitioner also seeks jurisdictional discovery in several disputed areas: (1) the adequacy
of the Bagram detainee’s review process as a substitute for habeas review; (2) the government’s plans
to hold prisoners at Bagram indefinitely and the categories of Bagram detainees who may be held
indefinitely (including whether the Petitioner falls into these categories); and (3) the existence of
practical obstacles standing in the way of habeas jurisdiction. [Doc. 18 at 3-4.]
“A district court acts within its discretion to deny discovery when the plaintiff has failed to
show that discovery would alter the jurisdictional analysis.”
Heroth v. Kingdom of Saudi Arabia
,
The Petitioner’s requested discovery would not alter this Court’s jurisdictional analysis and
will therefore be denied. First, the court already determined that a lesser review process
was insufficient to make the writ of habeas corpus available to Bagram detainees.
IV. Conclusion
For these reasons, the Court GRANTS the Respondent’s motion to dismiss for lack of subject-matter jurisdiction and DENIES the Petitioner’s motion for jurisdictional discovery.
IT IS SO ORDERED. Dated: June 26, 2012 s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE