Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 1 of 20(cid:10) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) FADI AL MAQALEH, ) ) Petitioner, ) ) v. ) Civil Action No. 06-CV-01669 (JDB) ) ROBERT GATES, et al., ) ) Respondents. ) ) RESPONDENTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION Pursuant to this Court’s Order of February 13, 2007, respondents move to dismiss the First Amended Petition for Writ of Habeas Corpus for lack of subject matter jurisdiction. Petitioner Fadi Al Maqaleh alleges that he is a Yemeni citizen detained by the United States Department of Defense (“DoD”) at Bagram Airfield, a United States military base in Afghanistan. He alleges, through his purported next friend, that his detention and conditions of confinement violate the Constitution, the Geneva Conventions, and the common law, among other things, and seeks release from DoD custody as a primary form of relief. Assuming the facts in the First Amended Petition to be true,1 this Court has no jurisdiction over this action. As the Court of Appeals for the District of Columbia Circuit recently held in Boumediene v. Bush, No. 05-5062, – F.3d – , 2007 WL 506581 (D.C. Cir. Feb. 20, 2007), federal courts have no jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants in a military base outside the sovereign 1 DoD is currently detaining at Bagram Airfield a Yemeni citizen whose name is the same as, or closely similar to, petitioner’s name. See Declaration of Colonel James W. Gray [“Gray Decl.”], ¶ 19. For purposes of this motion to dismiss, respondents will assume that the Yemeni detainee is petitioner. Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 2 of 20(cid:10) territory of the United States. As the Court of Appeals concluded, any contrary argument is squarely foreclosed by the jurisdiction-restriction provisions of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat. 2600 (2006), which limit the reach of the federal habeas statute and applies to all cases pending on the date of the MCA enactment, such as this one. See MCA § 7(b). The Court of Appeals also rejected the contention that the MCA, so applied, is unconstitutional. The Constitution does not provide petitioner with an independent right to habeas or other relief. The Supreme Court long ago rejected in Johnson v. Eisentrager, 339 U.S. 763 (1950), that aliens detained abroad by the United States have constitutional rights. Recognizing Eisentrager to be the controlling precedent on this point, the Court of Appeals held in Boumediene that Guantanamo Bay Naval Base detainees cannot invoke protections under the Constitution, whether under the Due Process Clause of the Fifth Amendment, the Suspension Clause in Article 1, Section 9, or otherwise. This is so not only because those detainees lack ties to the United States, but also because Guantanamo Bay is not a sovereign territory of the United States. Similarly here, petitioner does not claim to have any significant, voluntary connections to the United States, nor can he seriously argue that Bagram Airfield is a sovereign territory of the United States—a determination that is ultimately reserved for “the legislative and executive departments.’” Boumediene, Slip Op. at 20 (quoting Vermilya-Brown Co. Connell, 335 U.S. 377, 280 (1948)). Boumediene thus forecloses any attempt by petitioner to seek protections under the Constitution or to raise challenges to the MCA’s constitutionality. Furthermore, to the extent petitioner argues that this Court has jurisdiction under the common law to review his claims, that argument is also foreclosed by Boumediene. As the Court of Appeals held, the common law never encompassed habeas claims by an alien captured and 2 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 3 of 20(cid:10) detained outside the territory of the sovereign, and even if there were such a thing as common law jurisdiction in the federal courts, the MCA quite clearly eliminated that jurisdiction. Finally, even before the enactment of the MCA and other than in the special circumstances at issue in Rasul v. Bush, 542 U.S. 466 (2004), the federal habeas statute had never been interpreted to apply to aliens held at military bases overseas. Rasul involved a military installation, the Guantanamo Bay Naval Base (“Guantanamo”),2 over which the foreign sovereign expressly has consented to the United States’ “complete jurisdiction and control” for over a century. Id. at 480. There is no similar consent, however, by the Government of Afghanistan regarding Bagram Airfield, nor does the United State exercise “plenary and exclusive jurisdiction” over Bagram as is the case at Guantanamo. Id. at 475. Instead, the United States’ use of that military base, along with the significant presence of multinational forces there, is a wartime necessity subject to an agreement with the host nation. Thus, even had Congress not acted to supersede the holding in Rasul by enacting the MCA, the logic of Rasul would not extend to this case. In sum, this court has no jurisdiction to review petitioner’s claims. To hold otherwise would not only violate the plain language of section 7 of the MCA, but it would also mean the expansion of habeas jurisdiction to cover thousands, if not tens of thousands, of enemy combatants anywhere in the world in both current and future armed conflicts. As aptly observed by the Supreme Court more than half a century ago in Eisentrager, such an expansion would have a crippling effect on our war efforts: “It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to 2 Guantanamo was the very extra-territorial location as to which the Court of Appeals held in Boumediene that the MCA is applicable and constitutional. 3 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 4 of 20(cid:10) submission to call him to account in his own civil courts and divert his efforts and attention from the military offense abroad to the legal defensive at home.” 399 U.S. at 779. The considerable practical difficulties in connection with allowing alien enemy combatants captured at the battlefield and detained in a theater of war the privilege of access to our civil courts also cannot be understated. Accordingly, this Court should dismiss this case for lack of jurisdiction. BACKGROUND I. Bagram Airfield in Afghanistan Bagram Airfield is located approximately 40 miles north of Kabul in the Parwan Province of the Islamic Republic of Afghanistan. Between at least 1999 and 2001, the Taliban and the Northern Alliance forces actively contested control over the airbase, with the base changing hands several times. In the military campaign against al Qaeda and the Taliban regime in Afghanistan, American troops were deployed to the Airfield starting in late 2001 and early 2002, along with multinational armed forces, and had priority use of the Airfield for coalition operations. See Declaration of Colonel James Gray, [“Gray Decl.”], ¶ 5 . Today, the U.S. military force at Bagram Airfield is partnered with the Afghan National Security Forces, as well as other multinational forces, to conduct full spectrum operations to defeat al Qaeda, the Taliban, and associated movements. See id. ¶ 2. Its mission is to establish security, deter the re- emergence of terrorism, and enhance the sovereignty of Afghanistan. See id. Since at least 2003 and consistent with Afghan sovereignty, the United States has entered into several accommodation consignment agreements with the government of Afghanistan regarding the use of the land and facilities at Bagram Airfield. Id. ¶ 6. The most recent agreement, which is similar to prior agreements, was executed on September 28, 2006. Id.; Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield between 4 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 5 of 20(cid:10) the Islamic Republic of Afghanistan and the United States of America [“Accommodation Agreement”], attached as Ex. 1 to Gray Decl. Pursuant to that agreement, Afghanistan, as the “host nation,” consigns all facilities and land located at Bagram Airfield “for use by the United States and Coalition Forces for military purposes.” Accommodation Agreement at 1; Gray Decl. ¶ 6. The United States, as the “lessee,” has exclusive use and possession of the premises during the existence of the Agreement without rent or any other consideration. Accommodation Agreement at 1 and ¶¶ 5, 9. The Agreement specifically warrants that Afghanistan is the sole owner of the premises or otherwise has the right, without any restrictions, to grant the “use” of the premises. Id. ¶ 8. It also includes a hold-harmless provision whereby Afghanistan agrees that all claims arising out of the United States’ possession of the premises may be directed to Afghanistan for processing and payment, if any. See id. The Agreement is to continue in effect until the United States or its successor determines that it no longer needs the premises. Id. ¶ 4; Gray Decl. ¶ 6. Many different activities are conducted at Bagram Airfield, which has a significant multinational military presence. Gray Decl. ¶ 7. While the United States guards the Airfield, there are numerous national compounds located within the Airfield, with each nation separately controlling access to its respective compound. Id. Afghans also regularly have access to the Airfield. Id. ¶ 8. They range from local nationals performing contracted work to representatives of the Government of Afghanistan who assist in detainee citizenship interviews. Id. In addition, the United States operates a detention facility at Bagram Airfield known as the Bagram Theater Internment Facility (“BTIF”) to hold some of the aliens (that is, non-Americans) believed to be either members or supporters of al Qaeda, the Taliban or associated movements. Id. ¶ 9. The Department of Defense (“DoD”) has registered these detainees with the International Committee 5 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 6 of 20(cid:10) of the Red Cross (“ICRC”), and the ICRC regularly accesses the facility to conduct private interviews with the detainees there. Id. ¶ 10. Additionally, representatives of the Government of Afghanistan have access to Afghan detainees at the BTIF. Id. The Secretary of Defense has issued guidelines regarding the assessment of DoD detainees’ enemy combatant status in Afghanistan. See id. ¶ 12. In accordance with those guidelines, the detaining combatant commander, or his designee, must review the initial enemy combatant determination made in the field within 90 days of a detainee’s capture. Id. This review is based on all relevant information available on the date of the review and may be subject to further review based upon newly discovered evidence or information. Id. If necessary for a proper review, the detaining combatant commander, or his designee, may interview witnesses, providing they are reasonably available and such interviews would not affect combat, intelligence gathering, law enforcement, or support operations. Id. The detaining combatant commander may, at his discretion, convene a panel of commissioned officers to review the available evidence and reach a recommended determination regarding the detainee’s status. Id. After the initial 90- day status review, the detaining combatant commander, or his designee, is required to reassess the detainee’s status annually. Id. If the detaining combatant commander, or his designee, determines during any of the enemy combatant reviews that a detainee no longer meets the definition of an enemy combatant, the detainee is released. Id. Since the war began in Afghanistan, the United States has captured, screened, and released many individuals. Id. ¶ 9. The commanding general in charge of Bagram Airfield has established an Enemy Combatant Review Board (“ECRB”) to conduct enemy combatant status reviews. See id. The ECRB is a panel of five commissioned officers who evaluate the detainees’ status based on a variety of information, including classified intelligence and testimony from individuals involved 6 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 7 of 20(cid:10) in the capture and interrogation of the detainee. Id. The ECRB makes its recommendation regarding a detainee’s status by a majority vote, and forwards that recommendation to the commanding general, or his designee, for final determination. Id. Even if an Afghan detainee is determined to be an enemy combatant, that person may be transferred to the Government of Afghanistan pursuant to a national reconciliation program. See id. ¶¶ 14-15. Sponsored by the Government of Afghanistan, this reconciliation program is designed to allow combatants who are ready to put down their weapons to join in their country’s progress by living peaceful and productive lives. Id. ¶ 15. DoD has released Afghan detainees from the BTIF pursuant to this program as part of the United States’ ongoing effort to support the Government of Afghanistan in its program for strengthening peace. Id. These detainees are returned by the Government of Afghanistan to their village elders for reintegration into society. Id. In addition, pursuant to a diplomatic arrangement reached with the Government of Afghanistan, the United States anticipates transferring a significant percentage of the Afghan detainees at the BTIF to the Government of Afghanistan in the foreseeable future. See id. ¶ 16. To accomplish that arrangement, the United States is currently funding the renovation of an Afghan prison, known as the Afghan National Detention Center. Id. The United States is also providing other aid to the Government of Afghanistan regarding the operation of that prison, both to facilitate these transfers and to ensure that the detention facility would meet international standards. Id. Some Afghan detainees and detainees who are nationals of third countries, however, will not be transferred to the Government of Afghanistan but will remain in DoD custody. See id. ¶ 18. Petitioner was captured in Zabul, Afghanistan and detained at the BTIF. See Gray Decl. ¶ 20. He was determined to be an enemy combatant both at the time of the capture and in 7 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 8 of 20(cid:10) subsequent reviews.3 See id. On September 28, 2006, petitioner filed a petition for a writ of habeas corpus through his next friend. He amended the petition on February 12, 2007. The First Amended Petition seeks to invoke the jurisdiction of this Court under the federal habeas statute, 28 U.S.C. § 2241, the federal question statute, 28 U.S.C. § 1331, the Alien Tort Statute, 28 U.S.C. § 1350, and the All Writs Act, 28 U.S.C. § 1651.4 II. The Statutory Background The federal habeas statute provides that federal district courts have authority “within their respective jurisdictions” to consider a request for habeas corpus relief made by petitioners claiming to be held in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(a), (c)(3). Until the Supreme Court’s decision in Rasul v. Bush, 542 U.S. 466 (2004), this statute had never been interpreted to apply to aliens held in foreign territories by the United States. Rasul held that aliens enemy combatants detained at Guantanamo had a statutory right to habeas relief because Cuba’s express consent to the United States’ “complete jurisdiction and control over and within [the naval base]” brought the base within the meaning of the habeas statute’s distinctive phrase relating to the power of courts to issue writs of habeas corpus “within their respective jurisdictions.” Id. at 471; see 28 U.S.C. § 2241(a). In response to Rasul, Congress amended the habeas statute specifically to preclude 3 Petitioner received an enemy combatant status review by the ECRB in December 15, 2005, following which his status as an enemy combatant was validated. See Gray Decl. ¶ 20. The ECRB’s most recent review of his status was on March 1, 2007. Id. 4 Although the petition also cites the Administrative Procedures Act, 5 U.S.C. § 702, as a jurisdictional basis, “the APA grants a cause of action rather than subject matter jurisdiction.” Fund for Animals, Inc. v. U.S. Bureau of Land Management, 460 F.3d 13, 18 (D.C. Cir. 2006) (citing Califano v. Sanders, 430 U.S. 99, 107 (1977)). 8 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 9 of 20(cid:10) jurisdiction in the federal courts over Guantanamo detainees’ habeas or other claims relating to any aspect of the detention, except as provided by the judicial review provisions in the amendment itself. See the Detainee Treatment Act of 2005 (“DTA”), Pub. L. No. 109-148, 119 Stat. 2680 (10 U.S.C. § 801 note) (2005). That amendment vested exclusive jurisdiction in the United States Court of Appeals for the District of Columbia Circuit to review the validity of any final determination of a Combatant Status Review Tribunal (“CSRT”), and of any final decision of a military commission, regarding Guantanamo detainees. See DTA § 1005(e)(2) (2005). Although the DTA’s provision withdrawing jurisdiction “t[ook] effect on the date of [its] enactment,” see DTA § 1005(h)(1) (2005), the Supreme Court in Hamdan v. Rumsfeld found no congressional intent to apply the provision retroactively in the circumstances of that case, and thus held the provision inapplicable to the habeas petition before it, which had been filed prior to the enactment of the DTA. 548 U.S. , 126 S. Ct. 2749, 2762-69 (2006). In response to this and other holdings in Hamdan, Congress enacted the MCA to clarify the jurisdictional restrictions on habeas petitions and other detention-related claims filed by alien enemy combatants in DoD custody. That statute specifies that the DTA’s jurisdiction-limiting provisions are applicable “to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” MCA § 7(b). The MCA also expanded the jurisdictional restrictions under the DTA to cover not only those aliens enemy combatants detained at Guantanamo but also all those alien enemy combatants in the custody of the United States anywhere in the world. See id. § 7(a). Thus, the habeas statute now provides in 28 U.S.C. § 2241 subsection (e) that (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on 9 Case 1:06-cv-01669-JDB Document 7 Filed 03/05/2007 Page 10 of 20(cid:10) behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. See MCA § 7(a). DTA § 1005(e)(2) and (3), in turn, gives the D.C. Circuit exclusive jurisdiction to determine the validity of “any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant,” and of “any final decision rendered by a military commission,” with regard to anyone held by the United States. See DTA § 1005(e)(2)(A), (e)(3)(A); MCA §§ 9, 10. ARGUMENT I. THIS COURT LACKS JURISDICTION TO REVIEW THIS CASE A. The Court of Appeals’ Decision in Boumediene Removes All Doubt That Petitioner Has No Statutory Right to Habeas or Other Relief Relating to His Detention or Conditions of Confinement As discussed in the preceding section, developments in Guantanamo detainees’ habeas corpus litigation brought about Congress’ enactment of the MCA, which unambiguously determined that alien enemy combatants held abroad do not have a statutory right to habeas relief. In light of the fact that there are alien enemy combatants in DoD custody elsewhere in the world (both in the current conflict as well as possibly in future conflicts), the MCA’s provision limiting habeas jurisdiction is written broadly to cover any alien “detained by the United States 10