The opinion of the court was delivered by: John D. Bates United States District Judge
The Court, and the parties, are by now familiar with the facts animating this action. See Khadr v. Bush, 587 F. Supp. 2d 225, 227-29 (D.D.C. 2008) [hereinafter Khadr I]; see also Khadr v. United States, 529 F.3d 1112, 1114-15 (D.C. Cir. 2008) [hereinafter Khadr II]. Omar Khadr has been incarcerated since 2002 at the United States Naval Base in Guantánamo Bay, Cuba, after his capture as a juvenile during a firefight in Afghanistan in which several members of the U.S.-led coalition were killed or injured. See Khadr I, 587 F. Supp. 2d. at 228. In 2004, he filed a habeas petition with this Court. While that petition was pending, Khadr was brought before a Combatant Status Review Tribunal, which designated him as an enemy combatant. See id. The government subsequently charged him with war crimes and referred him for trial before a military commission. See id. That trial is set to begin on August 10, 2010.*fn1
In light of the parallel military commission proceedings, and relying on Schlesinger v. Councilman, 420 U.S. 738 (1975), the Court previously abstained from resolving Khadr's habeas petition, and therefore stayed the action. See Khadr I, 587 F. Supp. 2d at 231. The Court observed that the claims in Khadr's petition "have been, will be, or, at the very least, can be raised in the military commission proceeding and the subsequent appeals process." Id. at 230-31. Because comity requires federal courts to give "due respect to the autonomous military judicial system created by Congress," New v. Cohen, 129 F.3d 639, 643 (D.C. Cir. 1997), the Court concluded that it must stay Khadr's petition pending the end of military commission proceedings and the subsequent appeals process, Khadr I, 587 F. Supp. 2d at 234.*fn2
Faced once again with an impending military commission trial, Khadr now seeks leave to file a second amended habeas petition, which, according to him, raises claims that no longer warrant "a stay or abstention under Councilman." Pet'r's Mem. in Supp. of Mot. for Leave to File ("Pet'r's Habeas Mem.") [Docket Entry 297], at 1. That petition asks, among other things, for this Court to enjoin the military commission's proceedings against Khadr, see Proposed Second Amended Habeas Pet. [Docket Entry 298], Prayer ¶ 5, and to "order Respondents to release Petitioner from his current unlawful detention," id. at ¶ 1. Khadr also asks the Court to lift the stay. See Pet'r's Mem. in Supp. of Mot. to Lift the Stay ("Pet'r's Stay Mem.") [Docket Entry 305], at 2.
Upon careful consideration of the motions, the parties' several memoranda, the applicable law, and the entire record herein, the Court will grant Khadr's motion for leave to file his second amended habeas petition, but will deny his motion to lift the stay.
Khadr may amend his petition for habeas corpus "under the terms set by [Federal Rule of Civil Procedure] 15(a)." United States v. Hicks, 283 F.3d 380, 386 (D.C. Cir. 2002). Under that rule, "leave to amend a complaint should be freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility." Richardson v. United States, 193 F.3d 545, 549 (D.C. Cir. 1999); see also Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave [to amend the complaint] when justice so requires"). Rule 15(a)'s "'permissive approach' . . . applies with equal force to" motions to amend a habeas petition. Hicks, 283 F.3d at 386.
Khadr contends that his second amended habeas petition satisfies Rule 15(a) because it "address[es] substantive changes to the law," "reflects newly discovered evidence," and "includes recent developments as to [Khadr's] pending military trial," all of which "substantially affect the court's jurisdiction over the case and the merits of [Khadr's] arguments." Pet'r's' Habeas Mem. at 3-4. Permitting him to file his new habeas petition, he urges, would not unduly prejudice the government "because the amendments are timely and made in response to recent changes in the law." Id. at 4.
The government does not challenge Khadr's contention that his proposed habeas petition addresses new evidence and new law, or that permitting it would not be prejudicial. Rather, the government asserts that "any amendment to include Petitioner's new allegations would be futile because the Second Amended Petition would independently support abstention under Councilman." Resp'ts' Opp'n to Pet'r's Habeas Mot. ("Resp'ts' Habeas Opp'n") [Docket Entry 301], at 4; see also id. at 3 ("Petitioner's habeas case in this Court remains fully subject to the Stay Order, and there is no basis for seeking to amend his Petition while the stay remains in effect.").
The government paints futility with too broad a brush. A motion to amend a complaint is futile "if the proposed claim would not survive a motion to dismiss," James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996), or if there is "little chance" the plaintiff would succeed on his claim, Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996). Here, the government does not contend that Khadr's habeas petition merits dismissal, but instead only suggests that it should be stayed under Councilman. See Resp'ts' Habeas Opp'n at 3-4. Further, "[t]he fact that the case might then be stayed . . . does not change the fact that [Khadr's] proposed amendment creates a viable cause of action on which he may proceed." Kelly v. Barreto, Civ. A. No. 05-0900, 2006 WL 2568443, at *2 (D.D.C. Sept. 5, 2006); see also Kane v. Rose, 259 Fed. Appx. 258, 260-61 (11th Cir. 2007) ("It is apparent . . .that [a] stay does not render [a party's] claims futile for all time.") That is, even if a military commission addresses the arguments in Khadr's habeas petition in the first instance, this Court nevertheless also may have an opportunity to do so in a habeas proceeding following the conclusion of the military commission proceedings. See Al-Odah v. Bush, 593 F. Supp. 2d 53, 60 (D.D.C. 2009).*fn3
Accordingly, the Court will grant Khadr leave to file his proposed second amended habeas petition.
The Court next turns to whether Khadr's second amended habeas petition warrants abstention under Councilman. The claims in that petition both replicate and supplement the claims Khadr raised in his first amended habeas petition, for which the Court found Councilman abstention appropriate.
"[F]ederal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted." Councilman, 420 U.S. at 758; see also Al Odah, 593 F. Supp. 2d at 57 ("Courts ordinarily abstain from considering habeas petitions or requests for other equitable relief prior to the conclusion of a defendant's criminal proceedings."). This is so because "implicit in the Congressional scheme" creating the military court system is the view that the "system generally is adequate to and responsibly will perform its assigned task." Councilman, 420 U.S. at 758; see also id. at 759-60 ("We see no injustice in requiring respondent to submit to a system established by Congress and carefully designed to protect not only military interests but his ...