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Hamidullah v. Barack Obama

October 19, 2012

HAMIDULLAH, DETAINEE, UNITED STATES AIR FORCE BASE AT BAGRAM, AFGHANISTAN, AND WAKEEL KHAN AS NEXT FRIEND TO HAMIDULLAH PETITIONERS,
v.
BARACK OBAMA PRESIDENT OF THE UNITED STATES, ROBERT M. GATES SECRETARY OF DEFENSE, COL. JACK L. BRIGGS II COMMANDER, AND JOHN AND/OR JANE DOES NOS. 1 - 5, CUSTODIANS, RESPONDENTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Before the Court is [11] respondents' motion to dismiss [8] Hamidullah's amended petition for a writ of habeas corpus ("Habeas Pet."). Hamidullah, a citizen of Pakistan, has been detained by the United States at Bagram Airfield in Afghanistan ("Bagram") for several years. Habeas Pet. ¶ 25.

Whether federal courts may entertain habeas petitions filed by alien detainees held abroad has been the subject of intense litigation over the last decade. Section 7 of the Military Commissions Act of 2006 ("MCA"), 28 U.S.C. § 2241(e)(1), strips courts of jurisdiction over such petitions, but in some instances the Constitution's Suspension Clause invalidates § 7. In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court explained that "at least three factors are relevant in determining the reach of the Suspension Clause":

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

Id. at 766. After weighing these factors, the Supreme Court determined that detainees at Guantanamo Bay in Cuba could file habeas petitions. Id. at 798. But applying the same test, the D.C. Circuit later determined that three detainees at Bagram were not entitled to challenge their detentions through habeas corpus petitions. Al Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010). The D.C. Circuit concluded that although the first factor favored the petitioners, the second factor "weigh[ed] heavily" against them and the third weighed "overwhelmingly" against them. Id. at 95-98.

Hamidullah, along with the Al Maqaleh petitioners, now argues that new evidence undermines the rationale of the D.C. Circuit's decision. See Ptr.'s Opp. to Resp. Mot. to Dismiss [ECF 13] ("Ptr.'s Opp.") at 7-16. A combined hearing was held on Hamidullah's and the Al Maqaleh petitioners' habeas corpus petitions on July 16, 2012. The Court has now issued an opinion dismissing the Al Maqaleh petitions on the ground that none of the new evidence would have changed the D.C. Circuit's decision. See 10/19/2012 Mem. Op. [06-cv-1669, ECF 85]. That opinion resolves most of the issues in this case as well. See Ptr.'s Opp. at 8 ("Petitioner in this case acknowledges that the Court of Appeals' decision in Al Maqaleh, as that decision is interpreted and applied by this Court on remand, will govern certain jurisdictional factors that are also at issue in this case.").

Hamidullah does raise one argument, however, that was not at issue in Al Maqaleh. Hamidullah claims (and the claim must be accepted as true for purposes of this motion) that he was captured by the United States when he was fourteen years old and that he is eighteen or nineteen years old today. Tr. of Mot. Hrg. (July 16, 2012) at 87. He therefore argues that "not only [is] the privilege of the writ for minors . . . protected by the Constitution, but . . . it is somewhat more robust than the concomitant right among adults," and that he should accordingly be able to bring a habeas corpus petition even if adult detainees at Bagram cannot do so. Ptr.'s Opp. at 18. Neither the Supreme Court in Boumediene nor the D.C. Circuit in Al Maqaleh had occasion to address a petition by a detainee who was a juvenile at the time of capture, so this Court must determine in the first instance whether age affects the scope of the Suspension Clause application.*fn1

STANDARD

"[R]esponding to a habeas petition with a motion to dismiss is common practice." White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing Murray v. Carrier, 477 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. See Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002), aff'd, Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), rev'd on other grounds, Rasul v. Bush, 542 U.S. 466 (2004) (applying Fed. R. Civ. P. 12(b)(1) to the government's motion to dismiss a pending habeas petition on jurisdictional grounds); see also In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 453 (D.D.C. 2005) ("The respondents . . . seek dismissal of all counts as a matter of law under Fed. R. Civ. P. 12(b)(6) for failing to state a claim upon which relief can be granted. In the alternative, the respondents seek a judgment based on the pleadings pursuant to Fed. R. Civ. P. 12(c)."), vacated, Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev'd, 553 U.S. 723 (2008).

Under Rule 12(b)(1), the person seeking to invoke the jurisdiction of a federal court -- petitioner here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 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 Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) ("[A] Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). Although a court must accept as true all of the petitioner's factual allegations when reviewing a motion to dismiss pursuant to Rule 12(b)(1), see Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "'factual allegations . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(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. 1990)). 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. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A court may consider material other than the allegations in the habeas 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. See Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); St. Francis Xavier Parochial Sch., 117 F.3d at 624-25 n.3; Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

ANALYSIS

Hamidullah makes two arguments for why a petitioner's age is relevant to the jurisdictional question presented here. The first is primarily historical: he contends that "early history suggests . . . that [the habeas corpus right for juveniles] is somewhat more robust than the concomitant right among adults." Ptr.'s Opp. at 18. If this statement is correct, it might mean that Hamidullah's age does affect the Boumediene analysis. The Court concludes, however, that petitioner has failed to support this argument.

Hamidullah begins by pointing out that "one of the chief offices" of habeas "[i]n the early days of the Republic" was freeing underage soldiers from detention by their commanding officers, and that habeas petitions were also brought by juveniles in "a wide variety of child-detention regimes, ranging from work apprenticeships to formal slavery." Ptr.'s Opp. at 17-18 (citations omitted). This may well be true, but the fact that juveniles could file habeas corpus petitions is no reason to believe that their habeas rights are "more robust than" those of adults. There is no dispute that minors in the United States can file habeas petitions (and, indeed, may have more occasion to do so than adults; for instance, an adult would not normally be ...


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