                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 FADI AL MAQALEH, et al.,
         Petitioners,
                v.                                            Civil Action No. 06-1669
 ROBERT GATES, et al.,
         Respondents.


 AMIN AL BAKRI, et al.,
         Petitioners,
                v.                                            Civil Action No. 08-1307
 BARACK H. OBAMA, et al.,
         Respondents.


 REDHA AL-NAJAR, et al.,
         Petitioners,
                v.                                            Civil Action No. 08-2143
 ROBERT GATES, et al.,
         Respondents.


                                  MEMORANDUM OPINION

       Petitioners in these consolidated cases have filed a Joint Motion to Amend Petitions for

Writ of Habeas Corpus. They contend that there is new evidence that bears on this Court's

jurisdiction over their petitions challenging their continued detention by the United States at

Bagram Air Base in Afghanistan, and that amendment to permit consideration of that evidence

should be "freely given" under Fed. R. Civ. P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 182

(1962). Respondents oppose the attempt to amend the petitions, challenging the claim that there
is "new" evidence that undermines the earlier decision of the D.C. Circuit that the petitions

should be dismissed, see Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), and arguing that

amendment would therefore be futile.

        Following the D.C. Circuit's decision, petitioners sought rehearing based, in part, on

additional evidence not previously in the record. The Court of Appeals denied rehearing, but

noted that the denial was without prejudice to petitioners' "ability to present this evidence to the

district court in the first instance." Maqaleh v. Gates, No. 09-5265 (D.C. Cir. July 23, 2010).

Petitioners now seek to amend their habeas petitions with what they assert is newly discovered

evidence that undercuts the basis of the D.C. Circuit's prior decision finding no jurisdiction over

their petitions.

        Generally, the additional evidence that petitioners now proffer is the following:

operational and substantive changes to the U.S. detention system at Bagram Air Base, including

the commencement of civilian criminal trials for Afghan nationals there; movement and retention

of detainees in Afghanistan allegedly reflecting Executive Branch efforts to avoid judicial

scrutiny of detention practices and policies; and current specifics of plans to continue to hold

non-Afghan detainees in a new facility at Bagram in an attempt to evade any obligations before

the courts. Petitioners claim that this purportedly new evidence warrants reexamination of the

jurisdictional analysis undertaken in this case by this Court and then by the D.C. Circuit,

applying Boumediene v. Bush, 553 U.S. 723 (2008). Under the principle that leave to amend

under Rule 15(a)(2) should be freely given, see Foman, 371 U.S. at 182; Mayle v. Felix, 545 U.S.

644, 654 (2005) (noting application of Rule 15 to habeas petitions under Habeas Corpus Rule 11

and Fed. R. Civ. P. 81(a)(2)), petitioners urge this Court to permit them to file amended habeas


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petitions or, alternatively and at a minimum, allow jurisdictional discovery to proceed.

       Respondents counter that the assertions on which petitioners rely are not factually based

and any evidence they proffer is not in fact new. Engaging in a detailed examination of

petitioners' proposed amended habeas petitions and their legal analysis, respondents urge the

Court to deny the motion to amend as futile under Foman v. Davis because the amended petitions

would not survive a motion to dismiss. To a large extent, respondents' argument is based on a

close analysis of the proffered amended petitions under the standard established by the Supreme

Court in Boumediene and previously applied by the D.C. Circuit in this case.

       The parties' filings reveal vastly different assessments of the additional evidence on

which petitioners' motion is based, and of the impact of that evidence. To be sure, not all of the

evidence petitioners characterize as "new" really represents any change of relevance with respect

to the government's handling of detainees at Bagram. And respondents have a fair point that

recent developments as borne out by the facts may not significantly alter a proper assessment of

the Boumediene factors as applied by the D.C. Circuit.

       But ultimately the Court concludes that the examination respondents urge, and the

assessment of petitioners' "new" evidence that the law (and arguably the D.C. Circuit's July 23,

2010 order) requires, is best undertaken by permitting the requested amendments and then

addressing the petitions on their merits through the vehicle of a motion to dismiss filed by

respondents. The proffered evidence is extensive (and arguably evolving) and, in some ways, its

impact under the Boumediene/Maqaleh factors is subtle. While the Court has some doubts about

the consequence of the additional evidence under that analytical framework, that issue is better

explored through full consideration of the evidence and the parties' positions, rather than under


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the limited "futility" appraisal in which it is now presented. That will, moreover, be consistent

with Rule 15's strong encouragement of amendment -- if the facts presented may enable relief

then amendment should be "freely given" and a plaintiff should be permitted the opportunity to

have the claims tested on their merits. Foman, 371 U.S. at 182.

       Therefore, the Court will grant petitioners' joint motion to amend their habeas corpus

petitions. The Court expects, however, that granting the motion will enable more careful scrutiny

of the amended petitions through a motion to dismiss filed by respondents, and through firm

application of the analytical framework established by the Supreme Court in Boumediene and

applied by the D.C. Circuit in Maqaleh. At this time, the Court will deny petitioners' alternative

request for jurisdictional discovery. If petitioners continue to believe that such discovery is

needed, and warranted under the law, in response to a request to dismiss their amended habeas

corpus petitions, they can assert that position in their opposition. A separate order has been filed

with this Memorandum Opinion.



                                                                    /s/
                                                             JOHN D. BATES
                                                       United States District Judge


Dated: February 15, 2011




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