[ORAL ARGUMENT SCHEDULED JANUARY 7, 2010] Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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1 [ORAL ARGUMENT SCHEDULED JANUARY 7, 2010] Nos , , IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FADI AL-MAQALEH, et al., Petitioners-Appellees, v. ROBERT GATES, et al., Respondents-Appellants. AMIN AL-BAKRI, et al., Petitioners-Appellees, v. BARACK OBAMA, et al., Respondents-Appellants. REDHA AL-NAJAR, et al., Petitioners-Appellees, v. ROBERT GATES, et al., Respondents-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOINT BRIEF FOR PETITIONERS-APPELLEES Tina Monshipour Foster Barbara J. Olshansky Erin Valentine* International Justice Network P.O. Box New York, NY (917) Counsel for Petitioners Fadi Al-Maqaleh and Redha Al-Najar *law clerk, not yet admitted Ramzi Kassem Main Street Legal Services, Inc. City University of New York School of Law Main Street New York, NY (718) Hope R. Metcalf National Litigation Project Lowenstein Int l Human Rights Clinic Yale Law School 127 Wall Street New Haven, CT (203) Counsel for Petitioner Amin Al-Bakri

2 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES A. Parties and Amici Petitioners-Appellees are: detainee Fadi Al-Maqaleh; Ahmad Al-Maqaleh as Next Friend of Fadi Al-Maqaleh; detainee Amin Al-Bakri; Muhammad Al- Bakri as Next Friend of Amin Al-Bakri; detainee Redha Al-Najar; and Houcine Al-Najar as Next Friend of Redha Al-Najar. Respondents-Appellants in Al-Maqaleh v. Gates and Al-Najar v. Gates are: Robert Gates, Secretary of the Department of Defense; and John Does 1 and 2, as custodians of Petitioners. Respondents-Appellants in Al-Bakri v. Obama are: Barack H. Obama, President of the United States; Robert Gates, Secretary of the Department of Defense; and John Does 1 and 2, as custodians of Petitioners. All Respondents are named in their official capacities. Counsel for Petitioners-Appellees have received requests for permission to appear as amici curiae on behalf of Petitioners-Appellees from: Professor Daniel Kanstroom, on behalf of international, human rights, humanitarian, and constitutional law scholars; Dawinder S. Sidhu, on behalf of constitutional law scholars; Brennan Center for Justice; and People for the American Way. Counsel have consented to all such requests. ii

3 Veterans organizations, Sen. Lindsay Graham and individual veterans of U.S. Special Operations Forces appear before this Court as amici curiae for Respondents-Appellants. B. Rulings Under Review Respondents Motions to Dismiss for Lack of Jurisdiction the petitions of Fadi Al-Maqaleh, Amin Al-Bakri, and Redha Al-Najar were denied by the district court on April 2, Al-Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). On June 1, 2009, the district court granted Respondents Motion for Certification for Interlocutory Appeal pursuant to 28 U.S.C. 1292(b). The district court s June 1, 2009, opinion is published at 620 F. Supp. 2d 51. C. Related Cases This case is related to Wazir v. Gates, Civ. No (D.D.C. filed Sept. 29, 2006). Petitioner Wazir, like the three Petitioners here, is currently detained in Bagram Prison. Though all four cases were brought individually, the district court consolidated the cases for purposes of oral argument on Respondents Motions to Dismiss for Lack of Jurisdiction. Although the district court denied Respondents motions as to Petitioners Fadi Al-Maqaleh, Amin Al-Bakri, and Redha Al-Najar, it distinguished Petitioner Wazir s case based solely on his Afghan citizenship, and issued a separate memorandum opinion and order on June 29, 2009, granting Respondents Motion to Dismiss. That decision is reported at Wazir v. Gates, 629 iii

4 F. Supp. 2d 63 (D.D.C. 2009). On August 26, 2009, Petitioner Wazir filed a notice of appeal which is currently pending before this Court in Wazir v. Gates, No (D.C. Cir.). Undersigned counsel are unaware of any other case involving substantially the same parties and the same or similar issues, pending before this Court or any other court. Dated: October 30, 2009 Respectfully submitted, /s/ Ramzi Kassem Supervising Attorney Martin Brown Shirley Lin Talia Peleg Law Student Interns Main Street Legal Services, Inc. City University of New York School of Law Main Street Flushing, NY (718) ramzi.kassem@mail.law.cuny.edu /s/ Tina Monshipour Foster Barbara J. Olshansky Erin Valentine* International Justice Network P.O. Box New York, NY (917) tina.foster@ijnetwork.org Counsel for Petitioners Fadi Al- Maqaleh and Redha Al-Najar *law clerk, not yet admitted Hope R. Metcalf Supervising Attorney Robert Braun Curtis Isacke Christine Ku Law Student Interns iv

5 National Litigation Project Lowenstein Int l Human Rights Clinic Yale Law School 127 Wall Street New Haven, CT (203) hope.metcalf@yale.edu Counsel for Petitioner Amin Al-Bakri v

6 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES... ii A. Parties and Amici... ii B. Rulings Under Review... iii C. Related Cases... iii TABLE OF AUTHORITIES... ix GLOSSARY... xi STATEMENT OF THE ISSUE...1 STATUTES AND REGULATIONS...1 STATEMENT OF THE FACTS...1 SUMMARY OF ARGUMENT...7 ARGUMENT...9 I. THE DISTRICT COURT CORRECTLY HELD THAT IT HAD JURISDICTION OVER PETITIONERS HABEAS CLAIMS BASED ON THE SUPREME COURT S REASONING IN BOUMEDIENE...9 A. The District Court Properly Determined that Petitioners Citizenship and Status, Coupled with the Inadequate Process Afforded, Entitled Them to Invoke the Court s Habeas Jurisdiction Under Boumediene The citizenship analysis required under Boumediene distinguishes between citizens of nations at war with the United States and citizens of friendly nations Petitioners contested status weighs in favor of jurisdiction The lack of adequate process for determining Petitioners status further supports the exercise of habeas jurisdiction...17 vi

7 B. The District Court Correctly Determined that the Nature of Petitioners Apprehension and the Site of Detention Weigh in Favor of Petitioners Right To Invoke Habeas Jurisdiction The site of Petitioners apprehension and their subsequent rendition to Bagram weigh heavily in favor of judicial review The district court correctly determined that Respondents exhibit a high objective degree of control at Bagram Airbase The district court appropriately rejected vague assertions that multinational forces or the Afghan Government constrain Respondents control at Bagram C. The District Court Correctly Determined that the Exercise of Habeas Jurisdiction over Petitioners Claims Is Neither Impracticable Nor Anomalous District courts experience in the Guantánamo litigation demonstrates that the modern habeas remedy is flexible enough to overcome the practical obstacles presented by Bagram detainee habeas proceedings Global interest in combating terrorism does not pose a practical obstacle to the exercise of jurisdiction Extending habeas rights to Petitioners, who are not Afghan citizens, will not cause friction with the Afghan government D. The District Court Correctly Determined that the Extraordinary Length of Petitioners Detention Militates in Favor of the Exercise of Jurisdiction...43 E. No Adequate Substitute for Habeas Review Exists...44 II. STATUTORY JURISDICTION EXISTS PURSUANT TO 28 U.S.C OVER PETITIONERS CHALLENGE TO THE LEGALITY OF THEIR DETENTION...48 A. The Supreme Court in Boumediene Facially Invalidated MCA 7(a) and Restored Application of the Statutory Writ of Habeas Corpus48 B. Section 7 of the MCA Violates Article III of the Constitution...51 vii

8 C. The MCA Violates the Suspension Clause by Permanently Suspending the Writ...53 CONCLUSION...56 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE viii

9 TABLE OF AUTHORITIES Cases * Al-Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009)iii, 1, 10, 13, 14, 16, 17, 20, 21, 22, 25, 26, 33, 34, 35, 41, 42, 43, 44 Anam v. Obama, No , 2009 WL (D.D.C. Sept. 14, 2009)...23 * Boumediene v. Bush, 128 S. Ct (2008)...1, 9, 10, 11, 13, 14, 17, 19, 20, 21, 22, 23, 24, 28, 32, 33, 34, 35, 43, 44, 45, 46, 48, 49, 50, 55 Burtt v. Schick, 23 M.J. 140 (1986)...33 England v. La. St. Bd. of Med. Exam rs, 375 U.S. 411 (1964)...52 Ex parte Bollman, 8 U.S. 75 (1807)...55 Gherebi v. Obama, 609 F. Supp. 2d 43 (D.D.C. 2009)...23 Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995)...53 Hamdan v. Rumsfeld, 548 U.S. 557 (2006)...50 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)...15 Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009)...23 I.N.S. v. St. Cyr, 533 U.S. 289 (2001)...46, 55 Iasu v. Smith, 511 F.3d 881 (9th Cir. 2007)...46 Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249 (D.C. Cir. 2005)...40 * Johnson v. Eisentrager, 339 U.S. 763 (1950)...11, 12, 27, 34 Khouzam v. Attorney General of U.S., 549 F.3d 2356 (3d Cir. 2008)...46 Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009)...42, 49, 50 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804)...16 N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)...52 Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008)...16 Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36 (D.C. Cir. 2000)...26 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)...52, 53 Prakash v. American University, 727 F.2d 1174 (D.C. Cir. 1984)...27 Rasul v. Bush, 542 U.S. 466 (2004)...11, 12, 13, 24, 48, 49, 50 Reid v. Covert, 354 U.S. 1 (1957)...33 Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008)...46 Rumsfeld v. Padilla, 542 U.S. 426 (2004)...24 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)...42 Skurtu v. Mukasey, 552 F.3d 651 (8th Cir. 2008)...46 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936)...52 Swain v. Pressley, 430 U.S. 372 (1977)...46, 47 United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)...53 United States v. Raddatz, 447 U.S. 667 (1980)...51 Wales v. Whitney, 114 U.S. 564 (1885)...24 * Authorities upon which we chiefly rely are marked with asterisks. ix

10 Wazir v. Gates, 629 F. Supp. 2d 63 (D.D.C. 2009)... iii, iv Statutes 10 U.S.C. 801 note (2006)...18, 20, 45, 47, U.S.C (2006)... iii 28 U.S.C (2006)...8, 48, 49, U.S.C note (2006)...15, 23 Military Commissions Act of 2006, Pub. L. No , 120 Stat (2006)..8, 48, 49, 50, 51, 53, 54 U.S. Const., art. I, 9, cl U.S. Const., art. III...51, 52 Uniform Code of Military Justice, 10 U.S.C. 801 (2006)...33 Treaties Agreement Between the Department of Defense of the United States of America and the Ministry of National Defense of Tunisia Concerning Mutual Logistic Support, U.S.-Tunis., Mar. 29 Apr. 29, 1994, T.I.A.S. No Agreement between the United States of America and the Kingdom of the Yemen Respecting Friendship and Commerce, U.S.-Yemen, May 4, 1946, 60 Stat Agreement Between the United States of America and the Yemen Arab Republic Regarding Defense: International Military Education and Training, U.S.-Yemen, Sept. 9, 1986 May 19, 1987, T.I.A.S. No Agreement on Cultural Cooperation Between the Government of the United States of America and the Government of the Tunisian Republic, Sept. 28, 1979, 31 U.S.T Protocol Additional to the Geneva Conventions of 12 August, 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 50, June 8, 1977, 1125 U.N.T.S x

11 GLOSSARY AUMF: Bagram Airbase: Bagram Lease: Bagram Prison: CSRT: DOD: Authorization for Use of Military Force Largest U.S. Air Base in Afghanistan, located 40 miles north of Kabul U.S.-Afghan Lease Agreement for Bagram Airbase U.S. detention facility in Bagram Airbase Combatant Status Review Tribunal Department of Defense DTA: Detainee Treatment Act of 2005 DRB: ECRB: Guantánamo: ICRC: ISAF: Detainee Review Board Enemy Combatant Review Board United States Naval Station at Guantánamo Bay, Cuba International Committee of the Red Cross International Security Assistance Force of North Atlantic Treaty Organization MCA: Military Commissions Act of 2006 SOFA: UEB: UECRB: Status of Forces Agreement Unprivileged Enemy Belligerent Unlawful Enemy Combatant Review Board xi

12 STATEMENT OF THE ISSUE In Boumediene v. Bush, 128 S. Ct (2008), the Supreme Court ruled that detainees held by the U.S. military at the Guantánamo Bay, Cuba Naval Station ( Guantánamo ) were entitled to invoke the protection of the writ of habeas corpus as guaranteed by the Suspension Clause of the Constitution. The issue presented in this appeal is whether the district court erred in holding that the Supreme Court s decision in Boumediene entitles Petitioners to invoke the district court s habeas jurisdiction to challenge the legality of their detention. The district court held that Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time here, over six years without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus. J.A.448. STATUTES AND REGULATIONS Pertinent statutes are attached in an addendum to this brief. STATEMENT OF THE FACTS Petitioners Fadi Al-Maqaleh, Amin Al-Bakri, and Redha Al-Najar ( Petitioners ) have been in U.S. military custody for nearly seven years, and are currently imprisoned in the U.S. detention facility at Bagram Airbase in Afghanistan. Petitioners are all civilians who were seized by U.S. agents while outside Afghanistan. Though none of Petitioners has any connection to

13 Afghanistan, they were unlawfully rendered from third countries to U.S. military custody in Afghanistan. Petitioner Fadi Al-Maqaleh is approximately 27 years old and has been held in U.S. military custody since the age of 20. J.A He is a citizen of Yemen, a country at peace with the United States. J.A.16. Fadi Al-Maqaleh was seized outside of Afghanistan and rendered to Bagram by agents of the United States. Id. Petitioner s father, Ahmad Al-Maqaleh, only learned that his son was in U.S. military custody after receiving a letter via the International Committee of the Red Cross ( ICRC ) in or around J.A.15. Since then, Fadi Al-Maqaleh s only contact with his family has been through heavily redacted letters and a few brief telephone conversations facilitated by the ICRC and monitored by the U.S. government. Respondents have prevented him from speaking about the details of his seizure, sites of detention, or conditions of his current confinement in Bagram. J.A.15. Petitioner s father filed a habeas petition on behalf of his son on September 28, 2006 (amended on February 12, 2007), to challenge the legality of his son s arbitrary and indefinite detention. J.A.12. Amin Al-Bakri is 40 years old and has been a detainee in Bagram from the age of 33. J.A.475. A husband and father of three children, he is a Yemeni citizen and, prior to his seizure, was a successful businessman who sold and traded precious stones and marketed shrimp in several Southeast Asian countries. Id. 2

14 While on a business trip in Bangkok, Thailand in December 2002, Mr. Al-Bakri was abducted by U.S. agents and transported to several unknown locations including, upon information and belief, one or more CIA black sites. J.A.476. Petitioner s family frantically searched for him for six months, only learning of his detention in Bagram when they received a postcard via the ICRC asking them to look after his children. Id. Since his detention at Bagram, Mr. Al-Bakri has only been permitted to communicate with his family by letter and tightly controlled and very infrequent telephone calls. His daughter, now age 12, and his two sons, now ages 14 and 18, have spent close to seven years without their father. J.A.475. Despite the unjust treatment he has endured at Bagram, Mr. Al-Bakri has not only been a model prisoner, but has served as a translator and mediator between U.S. officials and other detainees because he is patient, cooperative and speaks English, French, Arabic, Farsi, and Urdu. J.A.541. Muhammad Al-Bakri filed a habeas petition on his son s behalf on July 28, J.A.471. Redha Al-Najar is approximately 44 years old, and has been a detainee at Bagram from the age of 36. J.A.618. He is a Tunisian citizen, and was living with his family in Karachi, Pakistan when he was apprehended. Id. In or around May 2002, a group of Urdu and French-speaking men abducted Mr. Al-Najar from his home in Karachi, in front of his wife and child. J.A.620. Following his seizure, Mr. Al-Najar was disappeared for one and a half years. Id. His brother, Houcine 3

15 Al-Najar, did not hear from him until their family received a letter via the ICRC in or about J.A.618. Since then, Houcine, who lives in Switzerland, and several other members of Petitioner s family, who live in Tunisia, have had limited communications with Redha via highly-redacted letters and, more recently, several brief telephone calls arranged by the ICRC. Id. Houcine Al-Najar filed a habeas petition on behalf of his brother on December 10, J.A.615. Petitioners are currently imprisoned at the Bagram Theatre Internment Facility ( Bagram Prison ). Bagram Prison is located on a permanent U.S. Airbase situated north of Kabul, Afghanistan ( Bagram Airbase ) and operated by the U.S. Army s Task Force Guardian under U.S. Central Command. J.A.63. Afghanistan has ceded exclusive use and control of Bagram Airbase to the United States pursuant to a lease agreement, which may continue in effect in perpetuity. See Tennison Decl., J.A Neither NATO forces, nor the forces of any other nation (including those of Afghanistan itself) have any part in detainee operations at Bagram Prison. J.A.53, 63. Respondents have held thousands of detainees at Bagram since 2002, though the population began to swell in 2004, when Respondents stopped transferring prisoners to Guantánamo. J.A As of March 10, 2009, 36 non-afghan detainees, including Petitioners, were being held at Bagram Prison. See Dolsen Decl., Resp t s Supp. App. 2. 4

16 Respondents have subjected Bagram prisoners to abusive interrogation techniques and conditions of confinement as bad as if not worse than those at Guantánamo. J.A Respondents have blocked efforts to provide judicial oversight of Petitioners circumstances, deprived Petitioners of access to counsel, and censored their conversations with family members in order to maintain Petitioners secretive detention. See, e.g., J.A Detainees held at Bagram Prison have been subjected to the most severe of human degradations including sexual assault and physical and psychological torture, leading to death in several known cases. J.A.101. Former Bagram detainees have described being threatened with dogs, stripped and photographed in shameful and obscene positions, and being placed in cages with a hook and a hanging rope from which they were blindfolded and hung for days. J.A.482. Within months of Petitioners abductions, two Bagram detainees were shackled to the ceiling for days, tortured, and then savagely beaten to death by U.S. interrogators. J.A.824. Not long after these deaths, Petitioners were transferred to Bagram from CIA black sites, where torture and coercive interrogation by U.S. officials were commonplace. J.A.476, 540. At least 84 other detainees have died as a result of similar or worse treatment in U.S. custody at various detention sites around the world. J.A.487, 620. Despite Bagram s dark history, the Pentagon is in the process of expanding the detention facilities there, building a much larger 5

17 prison complex on the Airbase that will have the capacity to hold 1100 detainees. Eric Schmitt & Tim Golden, U.S. Planning Big New Prison in Afghanistan, N.Y. Times, May 17, 2008, at A1. Scheduled to open in November 2009, the new prison cost at least $60 million and occupies 40 acres. Id. In addition to the new prison complex, Respondents have invested billions of dollars for the construction of permanent military facilities, housing, and other amenities on the Airbase. J.A.836, Petitioners have not been charged with any offense to justify their imprisonment at Bagram, nor have they been notified of pending or contemplated charges. See, e.g., J.A.621. Respondents previously claimed that the U.S. military reviews each Petitioner s status every six months by means of an Unlawful Enemy Combatant Review Board process ( UECRB ). J.A.69, 707. However, after seeking interlocutory appeal to this Court, Respondents announced a new procedure for detainee status determinations in Bagram called the Detainee Review Board ( DRB ) process. Respondents attached the new DRB procedures as an addendum to their opening brief on September 14, There is no indication that the procedures have in fact been implemented at Bagram. See Resp ts Brief ( R.B. ) 10-11; Addendum to Resp ts Br. ( R.Add. )

18 SUMMARY OF ARGUMENT Each Petitioner now before this Court was seized by the United States outside Afghanistan and unlawfully rendered there for imprisonment at Bagram Airbase. The issue in this case is whether the district court erred in denying Respondents motion to dismiss the habeas petitions of these three civilians who have been detained in the exclusive custody of the United States, without charge or justification, for nearly seven years. For the reasons detailed below, the district court properly determined that the Supreme Court s decision in Boumediene as applied to the facts of these Petitioners cases, mandated its exercise of habeas jurisdiction. Petitioners here, like those in Boumediene, are neither enemy aliens nor combatants of any kind, and have been denied access to any court or adequate procedure through which they might challenge the legality of their indefinite imprisonment. They continue to be imprisoned at Bagram, where the United States enjoys complete control pursuant to a lease agreement with the government of Afghanistan. The district court, giving careful consideration to all of Respondents arguments, and guided by its experience in similar cases in the Guantánamo context, ultimately concluded that permitting these three Petitioners to invoke the court s habeas jurisdiction would be neither impracticable nor anomalous. The 7

19 district court also correctly determined that Petitioners arbitrary detention for more than six years in Respondents custody, without access to any court of law, provided further support for its exercise of jurisdiction in these cases. For all of these reasons, and because no adequate substitute for habeas is available to Petitioners, the court properly denied Respondents motion to dismiss. Moreover, the habeas statute, 28 U.S.C. 2241, provides an alternate basis for jurisdiction. Indeed, the Supreme Court in Boumediene facially invalidated the jurisdiction-stripping provision of the section 7(a) of the Military Commissions Act of 2006 ( MCA ), restoring the availability of the statutory writ of habeas corpus. Finally, MCA 7(a) is also facially invalid because it both violates Article III of the Constitution, and permanently suspends the writ in violation of the Suspension Clause. Thus, the MCA does not present a barrier to Petitioners invocation of the court s statutory habeas jurisdiction as an additional basis for relief. In sum, this case presents the same fundamental concerns that motivated the Boumediene Court to adopt the flexible and multi-factored test which the district court painstakingly considered and correctly applied to Petitioners unique circumstances here. In this case, the only protection from arbitrary detention without end is the Great Writ serving in its historical role as a means of reviewing the legality of Executive detention. Petitioners respectfully ask this Court to 8

20 uphold the judiciary s fundamental role in the constitutional plan, which allocated powers among three independent branches. As guarantor of the writ, this Court can ensure the continuity of a design that serves not only to make our government accountable but also to secure individual liberty. Respondents claim that the courts must stand back and accept Executive custody determinations fatally misapprehends the separation-of-powers structure that entrusts the fact-finding function to the courts. The Constitution cannot abide such a result. ARGUMENT I. THE DISTRICT COURT CORRECTLY HELD THAT IT HAD JURISDICTION OVER PETITIONERS HABEAS CLAIMS BASED ON THE SUPREME COURT S REASONING IN BOUMEDIENE The Boumediene Court set forth a multi-factor test to uphold separation-ofpowers principles and to prevent the test for determining the scope of the writ from being subject to manipulation by those whose power it is designed to restrain. Boumediene, 128 S. Ct. at The Court explained that its test was sufficiently flexible to accommodate cases with no precise historical parallel. See id. at Thus, the Supreme Court held that at least three factors are relevant in determining the reach of the Suspension Clause: (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 9

21 writ. Id. at Further parsing the Court s test, the district court carefully considered each individual factor articulated in Boumediene, including: (1) the citizenship of the detainee, (2) the status of the detainee, and (3) the adequacy of the process through which the detainees status determination was made; (4) the site of apprehension; (5) the site of detention; (6) the practical obstacles inherent in resolving the detainee s entitlement to the writ; and (7) the length of time the detainee has been imprisoned without process. J.A.411. After examining these factors in light of the facts of Petitioners cases, the district court correctly concluded that Petitioners are entitled to invoke the protection of the writ as guaranteed by the Suspension Clause. To support their position that this Court can play no role in reviewing the legality of Petitioners detention, Respondents misconstrue the separation-ofpowers concerns at issue in Boumediene. In Boumediene, the Court sought to guard against the very same danger at issue in this case, i.e., the Executive s manipulation of the circumstances of Petitioners detention for the purpose of avoiding judicial scrutiny. 128 S. Ct. at The Court traced the history of the Great Writ as a critical restraint on executive power from the penning of Magna Carta, through its development under English common law, to its incorporation in the Suspension Clause of the Constitution. See id. at 2244 (explaining that Magna Carta decreed that no man would be imprisoned contrary 10

22 to the law of the land ); see also id. at 2245 ( [T]he King, too, was subject to the law... [and] the writ was deemed less an instrument of the King s power and more a restraint upon it. ). In doing so, the Supreme Court emphasized that [t]he Framers inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. Id. at When, as here, the Executive has seized, secretly transported, and sequestered people in an attempt to evade judicial review, the duty and authority of the Judiciary to call the jailer to account is even more pronounced. Id. at A. The District Court Properly Determined that Petitioners Citizenship and Status, Coupled with the Inadequate Process Afforded, Entitled Them to Invoke the Court s Habeas Jurisdiction Under Boumediene 1. The citizenship analysis required under Boumediene distinguishes between citizens of nations at war with the United States and citizens of friendly nations. Under both Boumediene and Rasul v. Bush, the relevant inquiry for the citizenship factor is whether the petitioner is: (a) a U.S. citizen; (b) a citizen of a friendly nation; or (c) a citizen of an enemy nation. See Boumediene, 128 S. Ct. at 2241 (noting that no petitioner was a citizen of a nation now at war with the United States ); Rasul v. Bush, 542 U.S. 466, 476 (2004) (noting that petitioners were not nationals of countries at war with the United States ); see also Johnson v. Eisentrager, 339 U.S. 763, 769 n.2 (1950) (defining an alien enemy as the subject of a foreign state at war with the United States ). Petitioners are citizens of 11

23 Tunisia and Yemen. J.A.14, 475, 618. Neither of these nations is at war with the United States. 1 Because Petitioners are all citizens of nations friendly to the United States, this factor posed no barrier to the district court s conclusion that it had jurisdiction to hear their claims. The Supreme Court has consistently held that alienage alone does not weigh against habeas jurisdiction. As the Rasul Court noted, there is a crucial distinction to be made when the Petitioners are not nationals of countries at war with the United States, and... deny that they have engaged in or plotted any acts of aggression against the United States. 2 Rasul, 542 U.S. at 476. The Boumediene 1 Cf. Agreement Between the Department of Defense of the United States of America and the Ministry of National Defense of Tunisia Concerning Mutual Logistic Support, U.S.-Tunis., Mar. 29 Apr. 29, 1994, T.I.A.S. No ; Agreement Between the United States of America and the Yemen Arab Republic Regarding Defense: International Military Education and Training, U.S.-Yemen, Sept. 9, 1986 May 19, 1987, T.I.A.S. No ; Agreement on Cultural Cooperation Between the Government of the United States of America and the Government of the Tunisian Republic, Sept. 28, 1979, 31 U.S.T. 5027; Agreement between the United States of America and the Kingdom of the Yemen Respecting Friendship and Commerce, U.S.-Yemen, May 4, 1946, 60 Stat The only instance in which a presumption of an alien s enmity may arise and weigh against finding habeas jurisdiction is when the detainee is a combatant fighting for a nation at war with the United States. The majority in Johnson v. Eisentrager, explained the rationale for this presumption: [D]isabilities this country lays upon the alien who becomes also an enemy [after his country enters into war against the United States] are imposed temporarily as an incident of war and not as an incident of alienage.... [T]he United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. 339 U.S. at (emphasis added). 12

24 Court did not call into question the reasoning articulated in Rasul on this issue, 128 S. Ct. at 2241, as the district court explained, U.S. citizenship helps petitioners whereas foreign citizenship does not. J.A.418. The Supreme Court has recognized the right of non-citizen petitioners from friendly nations detained by the United States to seek habeas relief in U.S. courts. 2. Petitioners contested status weighs in favor of jurisdiction. Petitioners have been detained for over six years based solely on status determinations that have yet to be tested or even openly detailed, raising significant constitutional concerns that weigh in favor of habeas jurisdiction. Though Respondents contend that status was not central to Eisentrager or Boumediene, R.B.29-30, the Boumediene Court in fact distinguished Eisentrager based, in part, on the petitioners contested status. In Boumediene, the Court noted at the outset of its analysis that the Guantánamo petitioners disputed their status, unlike the Eisentrager prisoners who were proven enemy aliens after trial before a competent tribunal and who subsequently did not dispute their status when seeking the writ. 128 S. Ct. at See also Rasul, 542 U.S. at 488 (Kennedy, J., concurring) ( Indefinite detention without trial or other proceeding presents altogether different considerations [from Eisentrager]. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. ) (emphasis 13

25 added). Petitioners here are identical to those in Boumediene, in that they have expressly contested their designation as enemy combatants, which was not determined by a competent tribunal. Boumediene, 128 S. Ct. at 2259; Al-Maqaleh, J.A.400. They are not nor have they ever been lawful or unlawful belligerents, or combatants of any kind. JA 15, 476, 619. Respondents, in their sole discretion, have chosen to render and detain Petitioners for more than six years without adequate process. In attempting to obfuscate the analysis required by Boumediene, Respondents equate the seizure and prolonged arbitrary detention of Petitioners, with the capture and detention of individuals who participated in the international armed conflict in Afghanistan. R.B.49. While the particular exigencies of battle might warrant deference to the Executive s determination of status in the case of an enemy fighter encountered on the battlefield during an international armed conflict, Petitioners were not apprehended as part of any such conflict. By Respondents own admission, Petitioners are not being detained as part of U.S. military assistance to the government of Afghanistan, but rather as part of broader worldwide law enforcement efforts against Al Qaeda and its supporters (however vaguely the Executive has defined that group). R.B.56. Consequently, the existence of hostilities (of any sort) in Afghanistan cannot be used to justify the seizure and 14

26 transfer of Petitioners from places far removed from that field conflict to Bagram for indefinite detention without trial. Respondents claim that the Authorization for the Use of Military Force ( AUMF ) implicitly authorizes Petitioners detention. R.B.9. But the language of the AUMF refers to the use of force against organizations that planned, authorized, committed, or aided the September 11 attacks. AUMF, Pub. L. No , 115 Stat. 224 (2001). The AUMF did not authorize the indefinite detention of civilian citizens of friendly nations who did not participate in any hostilities. In Hamdi v. Rumsfeld, the Court set forth the principles by which judicial investigation of war-on-terror detentions should be guided, relying upon longstanding law-of-war principles. 542 U.S. 507, 521 (2004). Under the laws of war, people like Petitioners, who never took up arms and were not affiliated with the armed forces of an enemy State, are not combatants, but civilians. Protocol Additional to the Geneva Conventions of 12 August, 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 50, June 8, 1977, 1125 U.N.T.S. 3. As the Hamdi plurality stressed, military detention is justified only to prevent a combatant s return to the battlefield. 542 U.S. at 519. Petitioners were nowhere near any battlefield when they were abducted, and thus the law does not permit the United States or any State to treat them as 15

27 combatants who might return to the battle. Respondents claim that the entire face of the earth is a battlefield, without either geographic or temporal limitation, does not provide legal authority for the detention of civilians who have never taken up arms against the United States. 3 As the district court recognized, the sheer breadth of Respondents definition of enemy combatant, in which mere support of forces engaged in hostilities could justify such a designation, underscores the need for a meaningful process for making that determination. J.A.419. This Court was similarly skeptical in Parhat v. Gates, 532 F.3d 834, 844 (D.C. Cir. 2008), observing that even under the government s own definition, the evidence must establish a connection between [the group supported] and al Qaida or the Taliban that is considerably closer than the relationship suggested by the usual meaning of the word associated. Thus, as the district court wisely understood, Respondents purported designations of Petitioners, whether as enemy combatants, unlawful enemy combatants, or unprivileged belligerents, are overbroad and prone to unilateral Executive manipulation. Accordingly, the exercise of the district court s 3 Just as this Court should avoid an interpretation of the statute that runs afoul of the Constitution, it must avoid an interpretation in conflict with international law. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); Restatement (Third) of Foreign Relations Law of the United States 114 (2000) ( Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States. ). For the same reason, Petitioners international claims cannot be dismissed solely by reference to the last-in-time rule. Al-Maqaleh, J.A

28 habeas jurisdiction over these cases is both necessary and appropriate. 3. The lack of adequate process for determining Petitioners status further supports the exercise of habeas jurisdiction. The Boumediene Court found the adequacy of the process through which [the Guantánamo detainees ] status determination was made to be a crucial factor in concluding that the Suspension Clause reaches Guantánamo. 128 S. Ct. at Because Respondents are left to defend a process that falls well short of what the Supreme Court found inadequate at Guantánamo, they would have this Court simply ignore this crucial part of the jurisdictional inquiry mandated by Boumediene. 4 Al-Maqaleh, J.A.433. In following the Supreme Court s analysis of the inadequacy of the Combatant Status Review Tribunals ( CSRTs ) held at Guantánamo, the district court compared the CSRT process with the procedures purportedly employed by Respondents at Bagram, concluding that the lack of adequate process at Bagram even more strongly favors petitioners here. J.A.434. Respondents do not contest this finding, but claim instead that this factor is irrelevant to the Boumediene 4 The Government also claims, without textual justification, that the Boumediene Court evaluated the adequacy of the [CSRTs] primarily to determine whether those procedures could serve as a substitute for habeas review. R.B.60. In reality, the Boumediene Court did not consider CSRTs as a substitute for habeas at all, but considered whether the Detainee Treatment Act ( DTA ) provided an adequate substitute. 128 S. Ct. at

29 analysis, and that even if this is purportedly so, new procedures bolster their case. 5 However, the DRB procedures do not meaningfully differ from the UECRB process allegedly in effect previously, and still fall far short of the CSRT procedures, which failed to support Respondents arguments in Boumediene and the district court below. Significantly, while the CSRT procedures require tribunal members to determine if Respondents proffered evidence was obtained by coercion, the DRB scheme has no such provision. See DTA 1005(b). The use of evidence obtained by torture or coercion to support a DRB status determination is a very real concern in these cases, further highlighting the need for independent judicial review. At least two of the three Petitioners here, Amin Al-Bakri and Redha Al-Najar, are 5 Respondents have announced three separate sets of procedures purportedly in place at Bagram over the past three years alone: Enemy Combatant Review Boards ( ECRBs ), Unlawful Enemy Combatant Review Boards, and most recently, Detainee Review Boards ( DRBs ). See Decl. of Col. Miller, Attach. 1 to Resp ts Resp. to Order to Show Cause and Mot. to Dismiss for Lack of Jurisdiction 5, Ruzatullah v. Rumsfeld, No. 06-cv-1707, Dkt. 5-3 (D.D.C. filed Nov. 20, 2006); Tennison Decl. J.A.68-69; R.Add.1-8. A Department of Defense official stated that the motivation for announcing the most recent iteration (i.e., the DRBs) was a desire to influence the Court s decision in this very case. Eric Schmidt, U.S. to Expand Detainee Review in Afghan Prison, N.Y. Times, Sept. 12, 2009, at A1, available at ( The new policy guidelines will bolster the government s case, said the Defense Department official, who added, We want to be able to go into court and say we have good review procedures. ). But regardless of how many times Respondents decide to change their standard operating procedures internally, Petitioners who have now been in Respondents custody for approximately seven years are entitled to seek habeas review of the legality of their detention without further delay. 18

30 known to have been held at CIA black sites prior to their arrival at Bagram. J.A.483, 620. While in U.S. custody, Petitioners Al-Bakri and Al-Najar were likely subjected to the torture that we now know has been commonplace at black sites, including terrorization with dogs, electric shocks, beating with rifle butts, prolonged suspension, stress positions, and solitary confinement in dog boxes. J.A , Statements made under these conditions are wholly unreliable and this Court cannot defer to Petitioners resulting status designations. In addition, DRBs exhibit many of the same procedural flaws that the Supreme Court identified in CSRTs, including unfair admissibility standards, incomplete and inaccurate evidence, and lack of access to counsel. Boumediene, 128 S. Ct. at 2260, Like the CSRTs, the DRBs will deny Petitioners access to classified evidence offered in support of their detention. 6 Thus, the Petitioners in this case will be denied the right to know and afforded no meaningful opportunity to challenge the most critical allegations that the Government relied upon to order... detention. Id. at The new DRB scheme, in which each detainee is assigned a military investigator labeled a personal representative, has already revealed its 6 Instead, detainees receive an unclassified summary of the specific facts that support the basis for their internment. R.Add.4. Even assuming the adequacy of those summaries Bagram detainees receive which DRB procedures leave unverified they will be of little use to detainees without the assistance of their counsel. 19

31 deficiencies in the CSRT context and was roundly criticized in Boumediene. See id. at Like in the CSRT scheme, this personal representative is not a lawyer and, therefore, has no duty of confidentiality, zealous advocacy, or loyalty to the detainee. See Model Code of Prof l Responsibility EC 2-23, EC , EC 5-1 (1983). 7 Indeed, the Supreme Court in Boumediene found that the personal representative system used in the CSRTs fell well short of the rigorous adversarial process afforded to the Eisentrager detainees who were provided counsel and, as a result, had a meaningful opportunity to contest the allegations against them. Boumediene, at Unlike the CSRTs, the DRBs do not even purport to be quasi-legal proceedings. For instance, DRB determinations may not be appealed to any court of law. Add.1-8.; cf. DTA 1005 (e)(2)(b-c) (limited review of CSRT provisions by Court of Appeals). Without recourse to a neutral decision-maker, DRBs are doomed to be even more error-prone than the already-discredited CSRTs. Al- Maqaleh, J.A.433; see R.Add.2. Without judicial review, the new procedures at Bagram are no improvement over the UECRBs they replaced, as a detainee who is brought before a DRB will still receive no review beyond the [DRB] itself. Al- 7 That DRB personal representatives are supposed to act in the best interest of detainees does nothing to redeem the role. R.Add.8. This provision is not equivalent to habeas counsel s affirmative duties of zealous advocacy and loyalty to Petitioners or candor to the court. The personal representative s duty of loyalty is only to his chain of command. 20

32 Maqaleh, J.A.433; see R.Add.2. Moreover, unlike the CSRTs, which require that at least one member of the tribunal be an attorney, the DRBs may be comprised entirely of non-lawyer board members. See Sec y of Navy CSRT Mem., Pet rs Addendum ( P.Add. ) ; cf. R.Add.4. The DRBs are equally, if not more, inadequate than the CSRTs in a number of other important respects: (1) Respondents are not required to disclose relevant exculpatory evidence in their possession to the DRBs; 8 (2) the detainee may be excluded from sessions of his DRB; 9 (3) lack of evidentiary standards permit unfettered admission of unreliable hearsay and uncorroborated evidence against the detainee; 10 and (4) the detainee s ability to present any witnesses and documentary 8 See R.Add.4-5; cf. CSRT Mem., P.Add.17. Though Respondents claim that they will investigate exculpatory information if the detainee directs it, there is nothing in the procedures which obligates them to locate or produce any exculpatory information in their possession. R.B.62. Moreover, despite a similar requirement in the CSRTs rules, the tribunal members were often not provided with such information. Abraham Decl., Pet. for Writ of Cert., U.S. Ct. of Appeals for D.C. Circuit, Boumediene, 128 S. Ct (No ), Joint Appendix See R.Add.5 (detainees will be excluded from matters that would compromise national or operational security if held in the open, and detainees shall be allowed to attend all open sessions, subject to operations concerns ) (emphasis added); cf. CSRT Mem. P.Add.18 (detainees excluded from proceedings involving matters that would compromise national security if held in the presence of the detainee ). Allowing ICRC and NGO observers into open proceedings that Petitioners lawyers are not permitted to attend does nothing to redeem these procedural defects. See R.Add See R.Add

33 evidence is entirely within the DRB panel s discretion. 11 Thus, the evidence presented to the DRB panel will inevitably be even less complete and accurate than that presented to the CSRTs. Finally, because Respondents rely on a broad and ever-changing status designation to characterize Petitioners, a necessary corollary is a robust process to ensure that only detainees who pose the kind of threat that warrants detention are properly designated. Al-Maqaleh, J.A.419. Respondents fluid and expansive definition of detention authority makes it nearly impossible for anyone, let alone an unrepresented prisoner unfamiliar with the language of his captors, to challenge his designation as a member of the detainable class. Respondents, after having imprisoned Petitioners for nearly seven years under various status designations, once again improvise a freshly minted category 11 See R.Add.5-6. U.S. armed forces members are not considered available under the DRB scheme if, as determined by their commanders, their presence at the review board would affect combat or support operations. R.Add.5. Petitioners were all apprehended outside Afghanistan nearly seven years ago, and thus it is likely that relevant witnesses, including any U.S. armed forces personnel that may have been involved, are located outside of Afghanistan. Al-Maqaleh, J.A.436. Even at Guantánamo, no non-detainee witnesses appeared in any Tribunal. Abraham Decl., J.A.599. Tribunals often never contacted available witnesses requested by detainees, or else deemed them unavailable because Respondents did not make arrangements with foreign embassies. Br. for Coalition of Non-Gov tl Orgs. as Amici Curiae Supp. Pet rs, Boumediene, 128 S. Ct (No ) at 21-22; see also Mark Denbeaux & Joshua W. Denbeaux, No-Hearing Hearings CSRT: The Modern Habeas Corpus?, Seton Hall Pub. L. Res. Paper Series, Paper No (2006), available at [hereinafter Denbeaux et al.] (tribunals rejected all non-detainee witness requests). 22

34 of detainee: unprivileged enemy belligerent ( UEB ). See R.Add.1, 3. Respondents do not even attempt to conform their new definition to the relevant jurisprudence concerning detention authority under the AUMF. In a line of recent cases evaluating detention authority for detainees at Guantánamo, the district courts have rejected the very definition offered here for DRBs as exceeding the President s detention authority under both the AUMF and the laws of war. See, e.g., Hamlily v. Obama, 616 F. Supp. 2d 63, (D.D.C. 2009) (neither AUMF nor laws of war authorize detention of individuals who were not members of enemy organizations); see also Anam v. Obama, No , 2009 WL , at *2 (D.D.C. Sept. 14, 2009) (adopting Hamlily ruling); Gherebi v. Obama, 609 F. Supp. 2d 43, 71 (D.D.C. 2009) (limiting detention authority to encompass only individuals who were actual members of enemy organizations armed forces). Respondents post-hoc modification of Petitioners status designation exceeds the boundaries of detention authority as circumscribed by the courts and further demonstrates the need for habeas review of Petitioners claims. B. The District Court Correctly Determined that the Nature of Petitioners Apprehension and the Site of Detention Weigh in Favor of Petitioners Right To Invoke Habeas Jurisdiction In Boumediene, the Supreme Court expressly rejected the proposition that de jure sovereignty is the touchstone of habeas jurisdiction. 128 S. Ct. at The Court, looking at the question of the extraterritorial application of the Suspension 23

35 Clause, stressed that resolution of the issue hinges upon practical concerns and objective factors, not formal rules. Id. at The Boumediene Court identified the nature of the sites where apprehension and then detention took place as the second set of factors relevant to its determination of whether the Suspension Clause protects prisoners access to the writ when they are imprisoned in a facility that is outside U.S. geopolitical boundaries. Id. at The district court s conclusion that Petitioners may invoke the protection of the Suspension Clause is entirely consistent with courts historic treatment of these issues. As Rasul established, although the United States lacks ultimate sovereignty at Guantánamo, it has exclusive governing authority there. 542 U.S. at 471, 476. Expressly rejecting Respondents contention that habeas corpus has been categorically unavailable to aliens held outside sovereign territory, id. at 482 n.14, the Rasul Court stated that at common law, the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown. Id. at 482. At common law, the writ would issue if the Crown exercised jurisdiction over the jailer. See Boumediene, 128 S. Ct. at 2245; see also Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (noting that [habeas] provisions contemplate a proceeding against some person who has the immediate custody of the party detained ) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885)). 24