United States District Court, District of Columbia
Tina M. Foster, Erin Valentine, International Justice Network, New York, NY, Anne Katherine Toomey, Eric Leslie Lewis, Lewis Baach PLLC, Washington, DC, for Petitioners.
Jean Lin, U.S. Department of Justice, Washington, DC, for Respondents.
ROYCE C. LAMBERTH, Chief Judge.
Before the Court is the government's Motion to Dismiss Petitioner Amanatullah's First Amended Petition for Habeas Corpus for Lack of Subject Matter Jurisdiction. [ECF No. 10]. For reasons given below, the Court will GRANT the government's motion and dismiss Amanatullah's petition.
Amanatullah, a citizen of Pakistan, has been detained by the United States at Bagram Airfield in Afghanistan (" Bagram" ) for several years. See First Am. Pet. for Writ of Habeas Corpus (" Habeas Pet." ) [ECF No. 9] ¶¶ 1, 11. In 2010, Amanatullah filed a habeas petition in this Court  through his brother Abdul Razaq as his " Next Friend," and filed an amended petition in 2011. See generally Habeas Pet. Amanatullah claims that his detention violates his constitutional right to the Writ of Habeas Corpus as protected by the Suspension Clause of the United States Constitution. Habeas Pet. ¶¶ 121-23 (citing U.S. Const. Art. I § 9, cl. 2). He seeks release from custody or, in the alternative, access to certain procedures, a cessation of all interrogation and torture and transfer to another facility, as well as other relief. See id. ¶¶ 38-39.
The government moved to dismiss the amended petition, relying heavily on the D.C. Circuit's opinion in Al Maqaleh v. Gates (" Al Maqaleh II " ), 605 F.3d 84 (D.C.Cir.2010), which held that the Suspension Clause did not cover non-U.S. citizen detainees held at Bagram. Resp'ts' Mot. To Dismiss (" Resp't's Br." ) [ECF No. 10].
Amanatullah's opposition points to several categories of purportedly " new" evidence— i.e. evidence that was not part of the record on appeal in Al Maqaleh II — which he argues should alter the jurisdictional analysis from what the Court of Appeals concluded in Al Maqaleh II. Pet'rs' Opp'n at 3 [ECF No. 11]. First, he argues that the commencement of " full-blown civilian trials of Afghan detainees at Bagram" " belies any previously articulated claim that proximity to the battlefield renders Article III judicial review impracticable." Pet'rs' Opp'n at 7-8. Second, he argues that the government intends to detain him at Bagram " indefinitely." Pet'rs' Opp'n at 8-9. Third he points out that after Al Maqaleh II, the government replaced the Unlawful Enemy Combatant Review Board (" UECRB" ) procedures, which the Court of Appeals reviewed, with new Detainee Review Board (" DRB" ) procedures now in place and, though he apparently concedes that these " recent modifications make the DRB slightly less defective than the UECRB," he nonetheless insists that these new procedures are " fundamentally flawed" and " woefully inadequate." Pet'rs' Opp'n at 9-10; 15-16. Fourth, he claims that that his own DRB at Bagram found him eligible for release. Pet'rs' Opp'n at 9-10.
Fifth, Amanatullah suggests that the government has purposefully used Bagram to evade judicial review— an attempted manipulation which, he argues, should influence the jurisdictional analysis. Pet'rs' Opp'n at 32-38. He cites a variety of documents in support of this assertion, and
requests the opportunity to conduct jurisdictional discovery. Pet'rs' Opp'n at 34-38.
The government filed a Reply insisting that all of Amanatullah's " new evidence" either lacks any " factual basis or is otherwise irrelevant to the constitutional calculus involved in the jurisdictional question." Resp'ts' Reply at 2 [ECF No. 12].
After the briefing on the motion to dismiss was complete, both parties filed notices of supplemental authority. The government filed notices regarding a Memorandum of Understanding (" MOU" ) entered between the United States and Afghanistan addressing the transfer of the Bagram detention center to Afghan control, See Resp'ts' Notice to Court Regarding the March 9, 2012 MOU [ECF No. 19], and the President's signing of an agreement with Afghanistan stating, in part, that it did not " seek permanent military facilities in Afghanistan," See Resp'ts' Supplemental Material [ECF No. 20], as support for its position that the United States did not intend to occupy Bagram permanently.
Amanatullah responded with a memorandum that reinterpreted these documents, insisting that they actually " confirm[ed] the United States' exclusive and continuing control over Bagram and its detainees, including Petitioner Amanatullah, and the U.S.'s intention and ability to exercise such control indefinitely." Pet'rs' Resp. to Resp'ts' Notice [ECF No. 21]; Errata Sheet [ECF No. 22].
Amanatullah subsequently filed an additional notice, attaching (1) a letter addressed to the Al Maqaleh counsel signed by the Chief of Staff to the President of Afghanistan favoring " fair judicial process" for all foreign detainees held at Bagram; (2) a declaration by a Col. Lawrence B. Wilkerson (Ret.) purporting to support Amanatullah's theory that the United States used Bagram to purposefully evade judicial review; (3) a similar declaration from Glenn Carle, a retired high-ranking CIA officer; and (4) a declaration from petitioner's counsel, Tina Foster, detailing her attempts to meet with another detainee-client and his personal representative and her unsuccessful attempt to participate in a Detainee Review Board proceeding. Pet'rs' Notice [ECF No. 23].
The government responded, arguing that the Wilkerson and Carle declarations are merely speculative, couched in probabilistic language; that they are based on " what is widely known" about the evolution of U.S. detention policy over the last decade, including the history of litigation over the limits of the Suspension Clause, rather than any " actual knowledge from his prior government position," See Resp'ts' Resp. to Pet'rs' Supplemental Materials at 4-5 [ECF No. 24-1]; and that Amanatullah's jurisdictional theory lacks a limiting principle and would " permit world-wide application of the Suspension Clause." Id. at 7. As to the letter from the Afghan President's Chief of Staff, the government notes that this is a private letter from an official
without authority to speak on behalf of the Afghan government, and that other top Afghan officials had made contradictory statements. Id. at 9-10. And, with respect to the Foster declaration, the government challenges the factual accuracy of the account therein, and denies that there are any " new facts" that directly bear on the pending motion. Id. at 12-13.
Finally, Amanatullah filed a response to the government's response, defending the relevance of the supplemental evidence they offered. Pet'rs' Resp. [ECF No. 25] With respect to the letter from the chief of staff, petitioner insists this is an official policy statement because it is on official letterhead, bears the seal of the President of the Islamic Republic of Afghanistan and conveys a " confirmation of the Afghan Government position." Id. at 2-4. With respect to the Foster declaration, he insists that the episode she chronicles shows that her client was " arbitrarily denied reasonably available in-person witnesses at their DRBs." Id. at 4-7. As to the Wilkerson and Carle declarations, Amanatullah concedes that their disclosures were limited to public information about the United States' purportedly deliberate evasion of judicial review, but argues that this is only because both are subject to binding non-disclosure obligations. Id. at 7.
III. LEGAL STANDARD
A. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). " Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). 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, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (applying Fed.R.Civ.P. 12(b)(1) to the government's motion to dismiss a pending habeas petition on jurisdictional grounds).
Pursuant Rule 12(b)(1), the petitioner bears the burden of establishing that the court has jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Bernard v. U.S. Dept. of Def., 362 F.Supp.2d 272, 277 (D.D.C.2005). " Because subject matter jurisdiction focuses on the Court's power to hear a claim, however, the Court must give the plaintiff's factual assertions closer scrutiny when reviewing a motion to dismiss for lack of subject matter jurisdiction than reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6)." Id.; see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 14 (D.D.C.2001).
B. Boumediene Factors
This case turns on whether the writ of habeas corpus extends to a noncitizen held by the United States beyond its sovereign territory. The evolution of the doctrine on the reach of the Suspension Clause has been reviewed ...