                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA

                                                          )
AMANATULLAH, et al.,                                      )
                                                          )
                            Petitioners,                  )
                                                          )
                   v.                                     )                                10-cv-536 (RCL)
                                                          )
BARACK OBAMA, et al.,                                     )
                                                          )
                            Respondents.                  )
                                                          )


                                             MEMORANDUM OPINION

I.         INTRODUCTION

           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.

II.        BACKGROUND

           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 1 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




1
    The case was before Judge Kennedy until his retirement from the bench. [ECF No. 13].
United States Constitution. Habeas Pet. ¶¶ 121–23 (citing U.S. Const. Art. I § 9, cl. 2). 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


2
  Petitioner also raises a host of other legal theories. He alleges that his detention constitutes an action beyond the
constitutional authority of the Executive under Article II of the Constitution, Habeas Pet. ¶¶ 124–28; a violation of
Common Law and Statutory Habeas, Habeas Pet. ¶¶ 129–30 (citing 28 U.S.C. § 2241(c)(1) & (c)(3)); a violation of
his Due Process rights, Habeas Pet. ¶¶ 131–34 (citing U.S. Const. amend. V); a violation of his right to counsel and
access to courts, Habeas Pet. ¶¶ 135–37 (citing U.S. Const. amends. V & VI); a violation of Army Regulation 190–8
which he suggests this court is authorized to review under the Administrative Procedures Act, Habeas Pet. ¶¶ 138–
41; and several violations of International Humanitarian and Human Rights Law, Habeas Pet. ¶¶ 142–47. This Court
finds these theories fail and will not address them.



                                                          2
“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. 3 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
3
  Several of these are not relevant here. Amanatullah filed a notice to bring to this court’s attention a British case
issuing a writ of habeas corpus to another detainee at Bagram. Pet’rs’ Notice of Supplemental Authority [ECF No.
14]. The government filed a notice regarding the National Defense Authorization Act for Fiscal Year 2012, Pub. L.
No. 112–81, which they argued provided statutory support for Amanatullah’s detention, and mandated certain new
procedures that mitigated those concerns. Resp’ts’ Notice to the Court Regarding a New Statute [ECF. No. 15].
Amanatullah responded, arguing that the NDAA did nothing to alter the status quo. Pet’rs’ Resp. to Resp’ts’ Notice
[ECF No. 18]. The Court will not discuss these further, as they do not pertain to the resolution of the question at
issue in this case.



                                                          3
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 Gelnn 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.




                                                 4
          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 (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




                                                   5
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).

       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, (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 extensively elsewhere and need not be repeated here. See,

e.g., Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). The leading case is

Boumediene v. Bush, where the Supreme Court adopted a three-factor test to determine whether

an alien held abroad will have access to federal courts to file a habeas petition:

       (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.

553 U.S. 723, 766 (2008) (holding that federal courts had jurisdiction over habeas petitions filed

by noncitizen detainees held at Guantanamo Bay).




                                                  6
    C. Bagram Detainee Habeas Litigation

         In 2010, the D.C. Circuit applied the Boumediene test and held that the suspension clause

does not extend to alien detainees held at Bagram. Al Maqaleh II, 605 F.3d at 99. In three

subsequent cases, two judges of this Court have rejected efforts by Bagram detainees to alter this

jurisdictional analysis by introducing “new” jurisdictional evidence. See Al Maqaleh v. Gates,

(“Al Maqaleh III”) 2012 WL 5077483 (D.D.C. Oct. 19, 2012); Hamidullah v. Obama, (D.D.C.

Oct. 19, 2012); Wahid v. Gates, 2012 WL 2389984 (D.D.C. June 26, 2012). Because these cases

bear directly on the matter at hand, and because this Court finds their analyses of the issues

particularly compelling, this opinion will next review those cases in some detail.

         1. Al Maqaleh

         Between 2006 and 2008, four detainees held at Bagram Air Force Base in Afghanistan—

Fadi Al Maqaleh, Haji Wazir, Amin Al Bakri, and Redha Al-Najar—filed habeas petitions in the

United States District Court for the District of Columbia. See Al Maqaleh v. Gates, (“Al Maqaleh

I”) 604 F. Supp. 2d 205, 208 (D.D.C. 2009). One was an Afghan citizen and the other three were

citizens of other non-U.S. countries. In 2009, Judge Bates applied the Boumediene factors and

found that jurisdiction over the three habeas petitions filed by non-Afghan detainees was

constitutionally mandated. 4 Id. at 214–35.

         The United States appealed to the D.C. Circuit. See Al Maqaleh II 605 F.3d at 99. The

Circuit reversed Judge Bates and held that Federal Courts lacked subject matter jurisdiction over

habeas petitions filed by alien detainees held at Bagram. Id. 5


4
 Judge Bates dismissed the fourth petition, by Afghan citizen Haji Wazir, and this petition was not part of
subsequent litigation. Al Maqaleh v. Gates (“Al Maqaleh I”), 604 F. Supp. 2d 205, 209 (D.D.C. 2009).
5
  In brief, the Circuit reasoned as follows: As to the “citizenship and status” factor, the Circuit found that this
favored petitioners who, like the successful detainee petitioners in Boumediene, were alien citizens classified as
enemy aliens. Al Maqaleh II, 605 F.3d at 95–96. As to “adequacy of process” available to petitioners at Bagram, the
Circuit found that petitioners had a stronger case than the Boumediene detainees because the process they were


                                                          7
         The three remaining Al Maqaleh petitioners sought rehearing en banc based, in part, on

additional evidence that was not in the record considered by the D.C. Circuit. The Circuit denied

the petition for rehearing, but noted that the denial was without prejudice to petitioners’ “ability

to present this evidence to the district court in the first instance.” Al Maqaleh v. Gates, No. 09-

5265 (D.C. Cir. July 23, 2010). On remand, Judge Bates granted the petitioners’ motion to

amend their petitions to incorporate this “new” evidence. Al Maqaleh v. Gates, 2011 WL 666883

(D.D.C. Feb. 15, 2011).

         After the new evidence was fully briefed, and a hearing conducted, Judge Bates granted

the United States’ motion to dismiss the amended petitions. Al Maqaleh v. Gates, (“Al Maqaleh

III”) 2012 WL 5077483 (D.D.C. Oct. 19, 2012).

         In his opinion, Judge Bates considered four categories of purportedly “new evidence”,

and found no justification for departing from the Circuit’s jurisdictional analysis in Al Maqaleh

II. Id. Because it addresses issues that are virtually identical to those in the present matter, it is

instructive to discuss Judge Bates’ opinion in some detail.

         First, Judge Bates considered evidence presented by the petitioners purporting to show

that the United States intended to remain indefinitely at Bagram. See Al Maqaleh III, 2012 WL

5077483 at *5–7. His opinion summarized this evidence:

         Since late 2001 or early 2002, the United States has held both Afghan and non-Afghan
         detainees at Bagram. The United States has recently begun transferring custody of

afforded under the UECRB system was less robust than what was available to Guantanamo detainees. Id. at 96. As
to the site of apprehension and detention, the Circuit contrasted the site of Boumediene petitioners’ detention,
Guantanamo, which was “under the complete and total control of our Government,” with Bagram, where the court
found “no indication of any intent to occupy the base with permanence,” and concluded that this factor strongly
favored the government. Id. at 96–97. Finally, as to “practical obstacles inherent in resolving the petitioner’s
entitlement to the writ,” the court again distinguished Bagram, located in an “active theater of war” in Afghanistan
and thus “exposed to the vagaries of war,” with Guantanamo, where no such conditions existed, and concluded that
this factor “weigh[ed] overwhelmingly” in favor of the government. Id. at 97–98. In sum, the court concluded that
petitioners had a slightly stronger case than the Boumediene detainees with respect to the “process” factor, the same
case with respect to “citizenship and status,” and a much weaker case on the “nature of the site” and “practical
obstacles” factors.



                                                          8
       Afghan detainees to the Afghan government. Although respondents aver that they intend
       eventually to transfer custody of non-Afghan detainees to . . . the Afghan government, the
       detainee’s home country, or a third country, they have no specific plans in place to do so.
       Petitioners conclude that the lack of specific plans to transfer non-Afghan detainees
       shows that the United States has the same sort of permanent control over non-Afghan
       detainees at Bagram that it has over detainees at Guantanamo Bay.

Id. at *5 (citations omitted). Judge Bates concluded that this evidence did not upset the

conclusion reached by the Circuit that the United States did not intend to remain in Bagram

indefinitely. He noted that the Circuit’s determination on this point rested on information that

was “in fact, quite limited,” largely comprised of “vague assertions” by the United States of their

intention to leave. Id. at *6. Judge Bates found that petitioners’ weak “new evidence” could not

disrupt that conclusion. Id. The court also noted that the fact that the United States had begun

transferring detainees to the Afghan government lent credence to the government’s

representations about their intention to leave Bagram. Id. Finally, the court found it significant

that there had been no change to the terms of the lease that obligates the United States to leave

Bagram “when it determines that the facility is no longer needed for military purposes.” Id.

       Second, Judge Bates considered petitioners’ evidence regarding criminal trials run by the

Afghan government at Bagram for Afghan detainees, and suggesting that the Afghan

government desires foreign detainees to be removed and provided fair judicial process

elsewhere. Petitioners argued that this evidence showed that the “practical obstacles” to

conducting habeas litigation for detainees at Bagram were far less serious than the Court of

Appeals had believed. Id. at *7–8. The opinion summarizes this evidence:

       After the D.C. Circuit’s decision, the Afghan government began conducting criminal
       trials of detainees at Bagram. The parties dispute how involved the United States is in
       these trials. The United States describes them as “purely Afghan-run,” but petitioners
       disagree. In their habeas petitions, they state that “the U.S. Military . . . allowed thirty-six
       full-blown trials of Afghan prisoners in its custody.” Quoting a Boston Globe article,
       petitioners explain that courts are composed of Afghan “judges, prosecutors, and forensic
       experts,” but that Americans “mentor[ ]” them. In their briefing, petitioners adopt the



                                                  9
           formulation that the United States “facilitat[es]” trials run by the Afghan government.
           Given the evidence petitioners have offered, the Court concludes that “facilitating” the
           trials—by allowing detainees to appear for trial and mentoring the Afghan participants—
           is an appropriate characterization of the United States’ role.


Id. at * 7 (citations omitted). Judge Bates found that this evidence did not upset the Circuit’s

conclusion regarding the “practical obstacles” factor. The Circuit had cited concerns that

“ordering military commanders to participate in habeas adjudications would ‘divert . . . efforts

and attention’ from the battlefield to the courtroom.” Id. (quoting Al Maqaleh II, 605 F.3d at 98).

The petitioners’ new evidence did nothing to alleviate such concerns because “[a] trial system

run primarily by the Afghan government obviously requires many fewer U.S. military resources

than would habeas adjudications conducted solely by the United State.” Id. at *8. The Court of

Appeals also found “difficulties” inherent in litigating in a “theater of war,” Id. (citing Al

Maqaleh II, 605 F.3d at 98) and Judge Bates concluded that petitioner’s evidence did not signal

any reduction as to this concern, finding it “quite plausible . . . that trials run by the Afghan

government would produce less hostility and fewer security issues than litigation in Afghanistan

orchestrated by the United States.” Id. Finally, the Court of Appeals also rested its finding of

practical obstacles on concerns about producing “a conflict between judicial and military opinion

highly comforting to enemies of the United States,” Id. (quoting Al Maqaleh II, 605 F.3d at

98)—a concern that Judge Bates found was “not present . . . when the Afghan government tries

its own citizens with United States consent.” Id.

           Also under the “practical obstacles” factor, petitioners introduced a letter from the Chief

of Staff to the President of Afghanistan 6 supporting “access to a fair judicial process” for non-

Afghan detainees held at Bagram. Judge Bates held that petitioners’ reliance on this letter was


6
    The same letter was submitted by Amanatullah here.



                                                         10
misplaced because it was just “a private letter to petitioners' counsel” not a statement of official

Afghan policy. Id. at *8. Moreover, even if it were official policy, Judge Bates held that this

would not “require a lesser diversion of military resources, change the fact that Afghanistan

‘remains a theater of war,’ or avert a potential conflict between the U.S. military and our courts.”

See Al Maqaleh II, 605 F.3d at 97–98.

           Third, Judge Bates considered “newspaper articles, government memoranda, two

declarations from former government officials, and other materials” 7 purporting to show that the

United States had deliberately chosen the Bagram site for these detainees to avoid habeas

jurisdiction. Id. at *9. The opinion summarizes this evidence:

           [Petitioners] explain, citing government memoranda, that Bagram was initially a
           “collection site” where U.S. officials decided which detainees should be sent to
           Guantanamo, but that the “linkage between” Bagram and Guantanamo was “severed over
           time.” They then cite newspaper articles stating that transfers from Bagram to
           Guantanamo dropped sharply after the Supreme Court found in June 2004 in Rasul v.
           Bush, 542 U.S. 466 (2004), that detainees at Guantanamo could bring habeas petitions. In
           addition, they cite two articles stating directly that detainees were transferred to Bagram
           “in part” to avoid habeas jurisdiction; one quotes anonymous “military figures” and
           another appears simply to be drawing an inference from transfer statistics. Finally,
           petitioners argue that there was in fact a “reverse” flow of detainees from Guantanamo in
           the wake of Rasul. They cite a 2010 newspaper article stating that four high-value
           detainees were transferred away from Guantanamo (but not to Bagram) in the months
           before Rasul was issued, because U.S. officials predicted the outcome of Rasul and
           wanted to ensure that those detainees could not bring habeas petitions. They also state (in
           a point vigorously contested by respondents) that more than 30 detainees were transferred
           from Guantanamo to Bagram and other sites between 2007 and 2009. Finally, petitioners
           have submitted the declarations of Colonel Lawrence B. Wilkerson (Ret.), former Chief
           of Staff to Secretary of State Colin Powell, and Glenn Carle, a former CIA employee,
           stating that petitioners “likely” were transferred to and/or kept at Bagram to “evade
           judicial review of their detention.” From this evidence, petitioners conclude that the
           Executive chose to house detainees at Bagram to ensure that they would not be able to
           file habeas petitions.


Id. (citations omitted).


7
    The same declarations were submitted by Amanatullah here.



                                                        11
       Judge Bates concluded that this evidence did not justify a departure from the Court of

Appeals’ conclusion. First, he expressed doubt as to whether “purposeful evasion,” even if

found, would affect the jurisdictional analysis under Boumediene. Id. Second, he suggested that

petitioners had likely waived this line of argument because most of their “new” evidence had

been publicly available when they presented their case to the Court of Appeals, bur petitioners

failed to press the issue there. Id. Third, he noted that the facts were “not as one-sided as

petitioners represent,” noting that detainees (including high-value ones) were transferred to

Guantanamo after Rasul. Id. at 10. Fourth, he proposed plausible alternative logistical and

political explanations for why the United States might want to house detainees in Bagram rather

than Guantanamo. Id. Fifth, he noted that the Court of Appeals had already been familiar with

the risk of executive manipulation and had before it evidence that was “really no different than”

the “new” evidence when it decided Al Maqaleh II in favor of the government. Id. And finally,

he found that petitioners’ theory lacked a limiting principle and would “create universal habeas

jurisdiction” because holding detainees in any location (other than Guantanamo) would be

equally suspect. Id.

       Judge Bates also considered and rejected petitioners’ request for jurisdictional discovery

to investigate the purposeful evasion theory. Id. at *11. He concluded that petitioners would need

“essentially a smoking gun” to prevail on this theory and declined to authorize a “fishing

expedition into . . . sensitive areas” that would be required to uncover such evidence. Id.

       Fourth, and finally, Judge Bates considered petitioners’ evidence regarding the revised

procedures used to determine the status of detainees at Bagram. Id. Because the Court of Appeals

in Al Maqaleh II had already concluded that this Boumediene factor weighed in favor of

petitioners, and because petitioners conceded that the new procedures were “at least marginally




                                                 12
better” than the previous ones, Judge Bates ruled that this evidence did not alter the Court of

Appeals’ decision. Id. He also rejected petitioners’ argument based on the fact that some of them

had been cleared for release by these procedures, noting that the D.C. Circuit had explicitly held

that “whether a detainee has been cleared for release is irrelevant to whether a petitioner may be

detained lawfully.” Id. at *12 (quoting Almerfedi v. Obama, 654 F .3d 1, 4 n. 3 (D.C. Cir. 2011)).

        2. Hamidullah v. Obama

        On the same day he decided Al Maqaleh III, Judge Bates also dismissed the amended

petition of Hamidullah, a Pakistani citizen detained at Bagram. See Hamidullah v. Obama, 2012

WL 5077127 (D.D.C. Oct. 19, 2012). Hamidullah relied on the same “new evidence” as the Al

Maqaleh III petitioners with the exception of one additional argument—that he was captured as a

juvenile. Id. at *1, 3. In dismissing Hamidullah’s petition, Judge Bates incorporated his

reasoning from Al Maqaleh III, found that the “new” evidence did not call for a departure from

the result in Al Maqaleh II, and resolved the outstanding “age” issue in favor of the United

States. Id. at *3.

        3. Wahid v. Gates

        Finally, after the Court of Appeals had ruled on Maqaleh II, but before Judge Bates had

decided Al Maqaleh III, Judge Gwin, sitting by designation, dismissed the habeas petition of Zia-

ur-Rahman, an Afghan citizen held at Bagram. Wahid v. Gates, 2012 WL 2389984 (D.D.C. June

26, 2012). Judge Gwin applied the Boumediene factors, and concluded that “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 [II].” Id. at *3.

        As to the “adequacy of process” factor, Judge Gwin embraced the logic that was

subsequently adopted by Judge Bates in Al Maqaleh III: because the Circuit had already found




                                                 13
that this factor weighed in favor of the petitioner, and Zia-ur-Rahman conceded that the new

DRB procedures marked a “marginal improvement” over the UECRB procedures in Al Maqaleh

II, he found no reason to depart from the Circuit’s analysis of this factor. Id. at *3–4.

       As to the “nature of the site” factor, Zia-ur-Rahman introduced various evidence

purporting to show that the United States intended to occupy Bagram indefinitely. Judge Gwin

found that Zia-ur-Rahman had misconstrued this evidence, that he acknowledged the uncertainty

of the future of Untied States’ control over Bagram, and that the lack of a definite end date to the

occupation was not sufficient grounds upon which to extend the writ of habeas corpus to

detainees. Id. at *4. He concluded that “in the two years since the Al Maqaleh [II] holding, the

relevant inquires for the ‘nature of the site’ prong remain nearly unchanged.” Id. at *4–5.

       As to the “practical obstacles” factor, Judge Gwin found that under the Court of Appeals’

reasoning, because Zia-ur-Rahman was an Afghan citizen, this factor would be even more

skewed in favor of the government than it was in Al Maqaleh. He also held that Bagram is still

located in “a highly active war-zone,” and that the initiation of Afghan criminal proceedings

supports the government’s position that they are trying to transfer control to Afghanistan. Id. at

*5. Thus, there was no new evidence that mandated departing from the Court of Appeals’

analysis of this factor in Al Maqaleh II.

       Finally, Judge Gwin also rejected Zia-ur-Rahman’s request for jurisdictional discovery,

finding that such discovery “would not alter this Court’s jurisdictional analysis.” Id. at *6.

IV.    ANALYSIS

       The D.C. Circuit’s holding in Al Maqaleh II is binding on this court. Petitioner may only

succeed by showing new evidence, not part of the record before the Court of Appeals in that

case, that would mandate a departure from the Circuit’s application of the Boumediene factors




                                                 14
and produce a different outcome. Because he has failed to do so, this Court will dismiss the

petition.

        A. Citizenship and Status

        Amanatullah’s sole “new” evidence under this factor is his evidence that the Detainee

Review Board at Bagram found him eligible for release. Pet’rs’ Opp’n at 9–10. But this is

irrelevant to the Boumediene analysis. As Judge Bates noted, “whether a detainee has been

cleared for release is irrelevant to whether a petitioner may be detained lawfully.” Al Maqaleh

III, 2012 WL 5077483 at *12 (quoting Almerfedi v. Obama, 654 F .3d 1, 4 n. 3 (D.C. Cir. 2011)).

        B. Adequacy of Process

        Amanatullah’s opposition brief suggests that the DRB procedures are “fundamentally

flawed” and “woefully inadequate.” Pet’rs’ Opp’n at 9–10. The subsequently filed Foster

Declaration purports to provide a demonstration of the arbitrariness of these procedures. See

Pet’rs’ Notice of Filing [ECF No. 23]; see also Pet’rs’ Resp. at 4–7 [ECF No. 25].

        This evidence does not affect the jurisdictional analysis, and will not lead this Court to

depart from the conclusion of the Court of Appeals in Al Maqaleh II. As Judge Bates noted, Al

Maqaleh II already held that this factor weighed in favor of petitioners because the procedures

afforded were less robust than those available at Guantanamo. See Al Maqaleh III, 2012 WL

5077483 at *11. Moreover, Amanatullah concedes, as did petitioners in both Al Maqaleh III and

Wahid v. Gates that the DRV procedures are “slightly less defective” than the UECRB ones they

replaced. See Pet’rs’ Opp’n at 15–16; see also Al Maqaleh III, 2012 WL 5077483 at *11 (noting

that the petitioners conceded that the DRB procedures were “at least marginally better” than the

UECRB ones); Wahid, 2012 WL 2389984 at *3–4 (noting that the petitioner conceded the new

procedures amounted to a “marginal improvement” over those at issue in Al Maqaleh II). Thus,




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the only change to the jurisdictional analysis produced by the evidence introduced here leads this

Court to find that this factor weighs slightly less in favor of the petitioners than it did in Al

Maqaleh II.

        C. Nature of the Site of Detention

       Amanatullah arguest that the government intends to detain him at Bagram “indefinitely,”

Pet’rs’ Opp’n at 8–9, and argues that the government has not shown any specific plan for

withdrawal. Pet’rs’ Resp. [ECF No. 21]; Errata Sheet [ECF No. 22]. Thus, he argues, Bagram

should be treated the same as Guantanamo for purposes of this Boumediene factor.

       This argument also fails. As Judge Bates noted, the D.C. Circuit had before it nothing but

“vague assertions” from the government of their intent not to remain indefinitely in Afghanistan

when it decided Al Maqaleh II. Al Maqaleh III, 2012 WL 5077483 at *6; see also Wahid, 2012

WL 2389984 at *4–5. The government repeats those assertions here, and even bolsters them with

new evidence of their intent to transfer control to Afghanistan. See Resp’ts’ Notice Regarding

the March 9, 2012 MOU [ECF No. 19]; Resp’ts’ Supplemental Material [ECF No. 20].

Moreover, as Judge Bates also noted, that the government has encouraged the Afghan

government to take custody of Afghan detainees lends some further credence to the

government’s argument that it intends not to remain indefinitely. Al Maqaleh III, 2012 WL

5077483 at *6. Because the government’s “vague assertions” were sufficient to satisfy the

Circuit that Bagram was distinct from Guantanamo in this respect, because the government has

bolstered these thin statements somewhat with additional evidence in this case, and because

Amanatullah has not offered anything that would undermine this analysis, this Court will not

depart from the Court of Appeals’ analysis with respect to this factor. Id. at *6.




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        D. Practical Obstacles

       Amanatullah 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. He also points to 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. Pet’rs’ Notice [ECF No.

23].

       This argument also fails. This Court agrees with both Judges Bates and Gwin that the

commencement of civil trials does not change the fact that Afghanistan remains an active war-

zone. See Wahid, 2012 WL 2389984 at *5 (finding Bagram was situated in a “highly active war-

zone”); Al Maqaleh III, 2012 WL 5077483 at *8 (“remains a theater of war”). With respect to the

letter, this Court agrees with Judge Bates that this is “a private letter to petitioners’ counsel” not

a statement of official Afghan policy. Id. Further, as Judge Bates noted, even if it were official

policy, it would not “require a lesser diversion of military resources, change the fact that

Afghanistan ‘remains a theater of war,’ or avert a potential conflict between the U.S. military and

our courts.” Id. (citations omitted). Thus, Amanatullah has not introduced any evidence that

would allow this Court to depart from the Court of Appeals’ evaluation of this factor.

        E. Purposeful Evasion of Judicial Review

       Amanatullah also suggests that the government was employing Bagram as a detention

site to deliberately evade judicial review, which, he argues, should influence the court’s

jurisdictional analysis. Pet’rs’ Opp’n at 32–38. In support of this theory, he relies on several

news articles, government documents obtained under FOIA, and several “Wikileaks documents.”




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Pet’rs’ Opp’n at 32–34. He also points to declarations by Col. Lawrence B. Wilkerson (Ret.) and

Gelnn Carle, a retired high-ranking CIA officer. Pet’rs’ Notice [ECF No. 23].

       This argument fails for several reasons. First, this Court agrees with Judge Bates’

skepticism regarding the petitioner’s assumption that the question of “purposeful evasion” is or

should be part of the Boumediene jurisdictional analysis. Such a theory of jurisdiction seems to

lack any limiting principle and would threaten to “create universal habeas jurisdiction”—

something plainly at odds with the careful balancing of the Boumediene test. See Al Maqaleh III,

2012 WL 5077483 at *10. Moreover, even if “purposeful evasion” were a factor in the

jurisdictional analysis, Amanatullah has not offered sufficient “new” evidence that would allow

this Court to depart from the conclusion of the Court of Appeals in Al Maqaleh II. Most (if not

all) of Amanatullah’s “new” evidence purporting to support this theory had been publicly

available when they presented their case to the Court of Appeals in Al Maqaleh II and thus may

not lead this court to depart from the conclusion that court reached. Finally, this Court also notes,

as did Judge Bates, that the facts are “not as one-sided as petitioners represent,” since some

detainees (including high-value ones) were transferred to Guantanamo after Rasul v. Bush, 542

U.S. 466 (2004) (the 2004 case that petitioner argues triggered the purposeful evasion). See Al

Maqaleh III, 2012 WL 5077483 at *10. Thus, again, Amanatullah has failed to introduce

evidence that would lead this Court to depart from the analysis of Al Maqaleh II.

        F. Jurisdictional Discovery

       Finally, Amanatullah requests the opportunity to conduct jurisdictional discovery to

further pursue his “purposeful evasion” theory. Pet’rs’ Opp’n at 34–38. However, habeas

petitioners are “not entitled to jurisdictional discovery as of right.” Al Maqaleh III, 2012 WL

5077483 at *11; see also Harris v. Nelson, 394 U.S. 286, 295 (1969) (“[T]he broad discovery




                                                 18
provisions of the Federal Rules of Civil Procedure do not apply in habeas cases.). Because the

Court agrees with Judges Bates and Gwin that such discovery would not lead to any evidence

that might affect the jurisdictional analysis, this Court denies petitioners’ request. See Al

Maqaleh III, 2012 WL 5077483 at *11 (rejecting petitioners’ request for jurisdictional discovery

as an attempt to engage in a “fishing expedition into . . . sensitive areas”); Wahid, 2012 WL

2389984 at *6 (rejecting petitioner’s request for jurisdictional discovery, finding that such

discovery “would not alter this Court’s jurisdictional analysis”).

V.     CONCLUSION

        For the foregoing reasons, the government’s motion to dismiss is GRANTED, and

Amanatullah’s request for jurisdictional discovery is DENIED.

       A separate order consistent with this Opinion shall issue on this date.

       Signed by Royce C. Lamberth, Chief Judge, on November 15, 2012.




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