The opinion of the court was delivered by: James S. GWIN,*fn1 United States District Judge:
[Resolving Doc. Nos. 15, 18]
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.*fn2 [Doc. 13.] The Respondents move to dismiss and say that controlling circuit precedent in Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), shows that this Court lacks subject-matter jurisdiction. [Doc. 15.] Petitioner Zia-ur-Rahman opposes the Respondents' motion, [Doc. 19], and moves for leave to take jurisdictional discovery, [Doc. 18]. For the following reasons, the Court GRANTS the Respondents' motion to dismiss and DENIES the Petitioner's motion for leave to take jurisdictional discovery.
On February 26, 2010, the Petitioner-a citizen of the Islamic Republic of Afghanistan-filed a petition for habeas corpus challenging his detention by the United States military at Bagram Airfield Military Base in Afghanistan.*fn3 [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 Al Maqaleh. [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 Al Maqaleh that the three-prong Boumediene analysis-as implemented in Al Maqaleh-favors extending the Suspension Clause*fn4 to him. [Doc. 13]; Boumediene v. Bush, 553 U.S. 723 (2008). The Respondents-arguing that the Court lacks subject-matter jurisdiction over the case-moved to dismiss. [Doc. 15.]
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, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). And "although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss[,] . . . [the] factual allegations in the complaint will bear closer scrutiny [than is involved] in resolving a 12(b)(6) motion . . . ." Wright v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (citations and internal quotation marks omitted).
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, 339 U.S. 763 (1950), twenty-one German nationals petitioned for writs of habeas corpus challenging their post-arrest detention by the United States following Germany's surrender. None were United States citizens, and none had been arrested or held in the United States. In Eisentrager, the Supreme Court held that the writ was unavailable to enemy aliens beyond the sovereign territory of the United States. In justifying this holding, the Court noted that trial of the writ "would hamper the war effort and bring aid and comfort to the enemy." Id. at 779. The Court also found that such a proceeding could fetter a field commander by diverting his attention from the overseas military offensive to the legal issues at home. Id.
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
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, 553 U.S. 723.
The Supreme Court analyzed three factors to decide whether the Suspension Clause extended to enemy aliens ...