UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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                                                       :
HAJI ABDUL WAHID, et al.,                              :         CASE NO. 1:10-CV-00320
                                                       :
                  Plaintiffs,                          :
                                                       :
vs.                                                    :         OPINION & ORDER
                                                       :         [Resolving Doc. Nos. 15, 18]
ROBERT GATES, Secretary of Defense,                    :
 et al.,                                               :
                                                       :
                  Defendants.                          :
                                                       :
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JAMES S. GWIN,1/ UNITED STATES DISTRICT JUDGE:

         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.2/ [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.

                                                 I. Background

        On February 26, 2010, the Petitioner—a citizen of the Islamic Republic of Afghanistan—filed


         1/
          The Honorable James S. Gwin of the United States District Court for the Northern District of Ohio, sitting by
designation.

         2/
          On September 7, 2010, the Court granted Haji Abdul W ahid’s motion to dismiss himself as a petitioner in this
action. [See Doc. 10.] Accordingly, Zia-ur-Rahman is the only remaining petitioner.

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Gwin, J.

a petition for habeas corpus challenging his detention by the United States military at Bagram

Airfield Military Base in Afghanistan.3/ [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 Clause4/ 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.]

                                              II. Legal Standard

        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



         3/
          The United States military maintains control of Bagram through a lease agreement with the Afghan government
which grants the United States exclusive use of the base without interference from the Afghan government and which
can only be terminated by the United States. See [Doc. 15 at 7 (citing Al Maqaleh, 605 F.3d at 87).]

         4/
          The Suspension Clause provides that “the privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require it.” U.S. Const. art. I, §9, cl. 2.

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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).

                                            III. Analysis

                                      A. The Legal Framework

       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

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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 being held at Guantanamo Bay:

        (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 detainees entitlement to the writ of habeas corpus.

Id. at 766 (emphases added).

        After examining past precedent, the Court emphasized the practical effects that would run

from extending habeas jurisdiction: the “common thread” uniting these precedents was “the idea that

questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Id. at
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764. The geographic reach of habeas corpus should employ a practical multi-factor balancing test,

not a simple and categorical analysis of the location where the detention occurred. See id. at 751-54.

       In Boumediene, the Court found that the Suspension Clause applied extraterritorially to the

detainees because, among other factors, the review process the Guantanamo detainees received was

inadequate. Perhaps more important, Guantanamo was “within the constant jurisdiction of the

United States” and extending habeas jurisdiction to Guantanamo was not unduly impractical. Id. at

767-68.

       In Al Maqaleh, the D.C. Circuit applied the Boumediene analysis to a case nearly identical

to this case and found that the district court did not have habeas jurisdiction to hear a challenge to

detention by three aliens detained at Bagram. Al Maqaleh, 605 F.3d at 99. In considering the three

Boumediene factors, the Al Maqaleh court first rejected the suggestion that Boumediene simply

required determination of de facto sovereignty. Id. at 95. Instead, the circuit used the multi-factor

approach identified in Boumediene.

       As to the first factor, the court concluded that the “adequacy of process” prong favored

extending habeas jurisdiction to the Bagram detainees because they received even less review of their

detention than had been afforded to the detainees in Boumediene. However, the Al Maqaleh court

found the remaining two Boumediene prongs, and especially the third prong, weighed “heavily” in

favor of the United States’ position. The Al Maqaleh court reasoned that the “nature of the site”

prong did not support extending habeas jurisdiction to the Bagram detainees because the United

States maintained no sovereignty over Bagram and the United States’ presence in Afghanistan was

welcomed by the Afghan government. Bagram did not approximate the United States’ long-standing

and unending control of Guantanamo. Id. at 96.

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       Similarly, the “practical obstacles” prong—the most important prong for the D.C. Circuit

Court—did not favor giving habeas relief to the Bagram detainees. Afghanistan was in a theater of

war, where concerns of conducting trials and issuing the writ at a facility exposed to the “vagaries

of war” were present. Id at 97. Accordingly, the D.C. Circuit dismissed the case for lack of subject-

matter jurisdiction.

                   B. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

       In the present case, the three-step constitutional analysis that the D.C. Circuit Court used in

Al Maqaleh controls. This decision is, therefore, compelled by the established precedent of Al

Maqaleh—the Court concludes that the Suspension Clause does not extend to this Petitioner and that

this Court has no subject-matter jurisdiction over the case. The Petitioner’s newly presented facts,

even when taken in the light most favorable to him, are too similar to warrant a different conclusion

than that of Al Maqaleh.

                                      1. Adequacy of Process

       Because the Al Maqaleh court found that the “adequacy of process” prong supported the

extension of the Suspension Clause to the Bagram detainees, this Court considers whether the

Petitioner’s facts alter the Al Maqaleh analysis in a way that becomes determinative. They do not.

       The Petitioner spends the bulk of his Amended Petition describing the inadequacies of the

current, “woefully inaccurate,” review boards but does not allege that the current review process is

worse than the process examined in the Al Maqaleh decision. [Doc. 19 at 9-22.] In fact, the

Petitioner acknowledges that the current review boards are a “marginal improvement over [those in

place during the Al Maqaleh decision],” [Doc. 19 at 8], and that “[the] procedures have all the same

fundamental flaws as the D.C. Circuit identified,” [Doc. 19 at 3]. Though the Petitioner and the


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Respondents disagree on the actual effects of the new Bagram processes, those procedures do not

compel a different conclusion than Al Maqaleh.

       Because the Petitioner makes no argument that he is differently situated than the petitioners

in Al Maqaleh (this Petitioner is a non-U.S. citizen held as an enemy alien), this Court shares the Al

Maqaleh conclusion: the “adequacy of process” prong weighs in [the] Petitioner’s favor but is not

strong enough to offset the other legs of the Boumediene constitutional analysis.

                                        2. Nature of the Site

       The Al Maqaleh court based its analysis of the “nature of the site” prong on the location of

the detainees’ apprehension, the sovereignty the United States held over the site of detention, and

whether the United States was present at the location of the detention in the face of a hostile

government. Al Maqaleh, 605 F.3d. at 97. The Petitioner does not allege that these determinative

factors have changed. He does, however, quote statements made by a United States official to show

the United States intends to gain the attributes of sovereignty over Bagram by occupying it

indefinitely. For example, the Petitioner cites a quote from the Deputy Secretary of Defense for

Detainee Policy that the United States wishes to maintain control of Bagram indefinitely, but he

failed to finish the Deputy Secretary’s quotation: “U.S. forces will eventually transition this

additional detention capacity to the [Afghan Government] . . . .” [Doc. 15-2 at 3.]

       In addition, the Petitioner’s own language demonstrates the uncertainty of his position: “[the

base] may be held indefinitely,” and “[detainees] may be subject to indefinite detention.” [Doc. 19

at 22, 25.] And the Petitioner contends the unsettled time line of transferring control of Bagram to

the Afghan government is further evidence of the United States’ intent to control Bagram

indefinitely. [Doc. 19 at 23.]


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         The Court recognizes certain inconsistencies about—and the unsettled nature of—the United

States’s intentions for Bagram. But the lack of a certain end-date is not sufficient to extend the writ

of habeas corpus to detainees. The Al Maqaleh court, when criticizing a similar position, cautioned

that “such an interpretation would seem to create the potential for the extraterritorial extension of the

Suspension Clause to noncitizens held in any United States military facility in the world, and perhaps

to an undeterminable number of other United States-leased facilities as well.” Al Maqaleh, 605 F.3d

at 95.

         Indeed, in the two years since the Al Maqaleh holding, the relevant inquires for the “nature

of the site” prong remain nearly unchanged: the Petitioner was apprehended abroad, the United

States’ presence in Bagram is by permission of the Afghan government, and the United States makes

no claims of sovereignty over Bagram in conflict with the Afghan government. Put simply, the

Bagram occupation still differs too greatly from the Guantanamo occupation for the ‘nature of the

sites’ prong to weigh in the Petitioner’s favor when measured against the circumstance that existed

in Boumediene:

         The United States has maintained its total control of Guantanamo Bay for over a
         century, even in the face of a hostile government maintaining de jure sovereignty over
         the property. In Bagram . . . there is no indication of any intent to occupy the base
         with permanence, nor is there hostility on the part of the “host” country. . . . While
         it is certainly realistic to assert that the United States has de facto sovereignty over
         Guantanamo, the same simply is not true with respect to Bagram.

Id. at 97. Accordingly, while the Petitioner’s contentions move this Court to find the “nature of the

site” prong perhaps weighs less strongly in favor of the Respondents’ position, this second prong still

weighs against the application of the Suspension Clause to the Petitioner.

                                         3. Practical Obstacles

         The third prong, the “practical obstacles” prong, most favors the Government’s position that

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the Suspension Clause does not extend habeas corpus protection to the Petitioner. The Al Maqaleh

court’s “practical obstacles” evaluation focused on Bagram’s location in a theater of war and “in a

territory under neither the de facto nor de jure sovereignty of the United States and within the

territory of another de jure sovereign.” Al Maqaleh, 605 F.3d at 98. It remains true that Bagram,

“indeed the entire nation of Afghanistan,” is an active war zone and within the sovereign territory

of another nation. Id. at 97. Moreover, in closing dicta the Al Maqaleh court noted that while the

third prong weighed overwhelmingly in favor of the United States, the prong would be even more

skewed in the Respondents’ favor if the petitioners had been Afghan citizens. Id. at 99. Zia-ur-

Rahman is just such a petitioner—he’s an Afghan Citizen.

       The Petitioner also points out that the United States apparently cooperated with fifty-two

Afghan criminal proceedings that have occurred at Bagram using Afghan judges and Afghan

prosecutors in the last two years. [Doc. 19 at 26.] These cases provide some support for the

Petitioner’s argument that habeas proceedings might proceed even amidst the Afghan turmoil. But

this evidence is insufficient to distinguish the factual background of this case from the factual

background the D.C. Circuit Court reviewed in Al Maqaleh. If anything, the Afghan criminal

proceedings support the proposition the United States government is attempting to transfer control

of Bagram to the Afghan government more quickly.

       As at the time of the Al Maqaleh decision, Bagram is in a highly active war-zone and remains

under the sovereignty of the Afghan government where the same, if not more, “practical obstacles”

are present. The overwhelming weight of the “practical obstacles” prong, considered alongside the

analysis of the “nature of the site” prong, lead this Court to the same conclusion of Al Maqaleh: this

Court does not have jurisdiction to entertain this habeas claim.


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                              C. Motion for Jurisdictional Discovery

       The Petitioner also seeks jurisdictional discovery in several disputed areas: (1) the adequacy

of the Bagram detainee’s review process as a substitute for habeas review; (2) the government’s plans

to hold prisoners at Bagram indefinitely and the categories of Bagram detainees who may be held

indefinitely (including whether the Petitioner falls into these categories); and (3) the existence of

practical obstacles standing in the way of habeas jurisdiction. [Doc. 18 at 3-4.]

       “A district court acts within its discretion to deny discovery when the plaintiff has failed to

show that discovery would alter the jurisdictional analysis.” Heroth v. Kingdom of Saudi Arabia,

331 F. App’x 1, 3 (D.C. Cir. 2009); cf. Abu Ali v. Ashcroft, 350 F. Supp. 2d 28 (D.C.C. 2004)

(granting jurisdictional discovery because “if the facts alleged in the Petition were shown to be true,

there would be habeas jurisdiction”).

       The Petitioner’s requested discovery would not alter this Court’s jurisdictional analysis and

will therefore be denied. First, the Al Maqaleh court already determined that a lesser review process

was insufficient to make the writ of habeas corpus available to Bagram detainees. 605 F.3d at 96.

Second, the Petitioner’s request to discover proof of the United States’ intention to hold Bagram and

certain detainees indefinitely would also fail to alter the Al Maqaleh analysis. As discussed above,

indefiniteness alone will not suffice to alter the “nature of the site” analysis without also addressing

other pertinent factors: the United States does not exercise de facto sovereignty over Bagram, does

not claim to hold sovereignty over Bagram, and is occupying Bagram with the approval of the

Afghan government. Finally, the Petitioner’s request for discovery regarding Afghan civilian trials

would not alter the pertinent factors in the Al Maqaleh analysis of the “practical obstacles”

prong—namely the location of the military base in question and whether it was in a theater of


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war—and likewise would not alter the constitutional analysis. In sum, Petitioner “has failed to show

that discovery would alter the jurisdictional analysis,” and the Court denies his request. Heroth,

331 F. App’x at 3.

                                         IV. Conclusion

       For these reasons, the Court GRANTS the Respondent’s motion to dismiss for lack of

subject-matter jurisdiction and DENIES the Petitioner’s motion for jurisdictional discovery.



       IT IS SO ORDERED.

Dated: June 26, 2012                                  s/ James S. Gwin
                                                      JAMES S. GWIN
                                                      UNITED STATES DISTRICT JUDGE




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