Al Maqaleh v. Hagel, s. 12–5404

738 F.3d 312

Fadi Al MAQALEH, Detainee, and Ahmad Al Maqaleh, as Next Friend of Fadi Al Maqaleh, Appellants

v.Chuck HAGEL, Secretary, United States Department of Defense, et al., Appellees.

Amanatullah, Detainee, and Abdul Razaq, as Next Friend to Amanatullah, Appellants

v.Barack Hussein Obama, President of the United States, et al., Appellees

Hamidullah, Detainee, and Wakeel Khan, as Next Friend to Hamidullah, Appellants

v.Barack Hussein Obama, President of the United States, et al., Appellees.

Nos. 12–5404, 12–5399, 12–5401, 12–5407, 12–5410.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 17, 2013.

Decided Dec. 24, 2013.

Rehearing En Banc Denied March 13, 2014.

Prior Version Recognized as Unconstitutional

28 U.S.C.A. § 2241(e)(1)

Appeals from the United States District Court for the District of Columbia, (No. 1:06–cv–01669), (No. 1:08–cv–01307), (No. 1:08–cv–02143), (No. 1:10–cv–00536), (No. 1:10–cv–00758).

Tina Monshipour Foster argued the cause for appellants Fadi Al Maqaleh, et al., in Nos. 12–5404, et al. Golnaz Fakhimi, Ramzi Kassem, Hope Metcalf and Sylvia Royce were on brief. Barbara J. Olshansky entered an appearance.

Eric L. Lewis argued the cause for appellants Amanatullah, et al., in No. 12–5407. Tina Monshipour Foster, Golnaz Fakhimi and A. Katherine Toomey were on brief.

John J. Connolly argued the cause for appellants Hamidullah, et al., in No. 12–5410. William J. Murphy and Cori Crider were on brief.

Sharon Swingle, Attorney, U.S. Department of Justice, argued the cause for the appellees. Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Douglas N. Letter, Attorney, were on brief.

Before: HENDERSON and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Over three years ago, we decided that enemy combatants held by the United States at Bagram Airfield Military Base (Bagram) in northwest Afghanistan could not invoke the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, to challenge their detentions. Al Maqaleh v. Gates, 605 F.3d 84 (D.C.Cir.2010)( Al Maqaleh II ). In these three appeals, Bagram detainees once again seek access to the writ of habeas corpus. We once again dismiss their petitions for want of jurisdiction.

I

A. Bagram and its Detainees

In the wake of the September 11, 2001 attacks on our homeland, the Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the attacks. Authorization for Use of Military Force (AUMF), Pub.L. No. 107–40, 115 Stat. 224, 224 (2001). Among the powers conferred on the President was the power to detain enemy combatants “for the duration of the particular conflict in which they were captured.” Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); id. at 588–89, 124 S.Ct. 2633 (Thomas, J., dissenting) (agreeing that AUMF authorizes detention); see also Boumediene v. Bush, 553 U.S. 723, 733, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Khairkhwa v. Obama, 703 F.3d 547, 548 (D.C.Cir.2012); Uthman v. Obama, 637 F.3d 400, 402 (D.C.Cir.2011), cert. denied––– U.S. ––––, 132 S.Ct. 2739, 183 L.Ed.2d 614 (2012). ¹ An enemy combatant is any person who, at the time of capture, was a part of the Taliban, al Qaeda or associated forces engaged in hostilities against the United States. See Al–Madhwani v. Obama, 642 F.3d 1071, 1073–74 (D.C.Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 2739, 183 L.Ed.2d 617 (2012); Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C.Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 1814, 179 L.Ed.2d 794 (2011).

The United States has detained enemy combatants at facilities both within and outside the United States, including Bagram. Located in Parwan Province in northwest Afghanistan, Bagram is the largest U.S. military installation in that country. Al Maqaleh II, 605 F.3d at 87. U.S. and allied forces conduct operations from Bagram. The current lease agreement between the United States and Afghanistan provides that the United States may occupy and use Bagram “for military purposes ... until the United States or its successors determine that the premises are no longer required for its use.” Id. (quotations marks omitted).

Among those detained at Bagram are the five appellants in this case (to whom we refer collectively as the Appellants). Three of the Appellants—Fadi al-Maqaleh, Amin al-Bakri and Redha al-Najar—were appellees in Al Maqaleh II (we refer to them collectively as the Al Maqaleh II Appellants). Appellant al-Maqaleh is a Yemeni citizen who alleges that the United States captured him outside Afghanistan and transferred him to Bagram in 2004 or 2005. Appellant al-Bakri is a Yemeni citizen who alleges that the United States captured him in Thailand in 2002 and eventually transferred him to Bagram. Appellant al-Najar is a Tunisian citizen who alleges he was captured in Pakistan in 2002 and subsequently transferred to Bagram. Appellant Amanatullah is a Pakistani citizen who was captured by British forces in Iraq in 2004 or 2005 and subsequently transferred to Bagram. Appellant Hamidullah is a Pakistani citizen who alleges that he was captured in the Pakistani border region of South Waziristan in 2008 at the age of fourteen and subsequently detained at Bagram.

Before Al Maqaleh II, the United States housed detainees within the confines of Bagram at the Bagram Theater Internment Facility (BTIF). In late 2009, however, the United States constructed a new detention facility, then known as the Detention Facility in Parwan (DFIP), just outside Bagram. The United States transferred all Afghan detainees held in the BTIF to the DFIP by late 2009. Adjacent to the DFIP, the United States built a separate facility to house non-Afghan detainees. In May 2012, the United States agreed to transfer both “U.S. detention facilities in Afghan territory to Afghan control” and “Afghan nationals detained by U.S. forces at the [DFIP] to Afghanistan.” Memo. of Understanding on Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, U.S.-Afg., § 2, Mar. 9, 2012, Joint Appendix (JA) 680 (2012 MOU). The United States completed the transfer of the DFIP facility and its inmates to Afghan control on March 25, 2013. John Kerry, Remarks with President Hamid Karzai After Their Meeting (Mar. 25, 2013), available at http:// www. state. gov/ secretary/ remarks/ 2013/ 03/ 206663. htm; Press Release, International Assistance Security Force, North Atlantic Treaty Organization, U.S. Transitions Parwan Detention Facility to Afghan Government (Mar. 25, 2013), available at http:// www. isaf. nato. int/ article/ isaf- releases/ u. s. transitions- parwan- detention- facility- to- afghan- government. html. The DFIP—now known as the Afghan National Detention Facility–Parwan—is a part of the Justice Center in Parwan (JCIP), where the Afghan government conducts criminal trials of Afghan detainees.

We note that the Appellants' current status is unclear. Although the Government represented in May 2011 that it detained them at the DFIP, it has since ceded the DFIP to Afghan control. The record does not disclose whether, after that cession, the Appellants remain there or at some other facility and the Government has not informed us of the Appellants' current location. The Appellants claim in their briefs—filed after the transfer of the DFIP to Afghan control—that the United States continues to detain them at “a separate prison facility at Bagram.” Joint Br. for Pet'rs–Appellants (al-Maqaleh Br.) 38, Al Maqaleh v. Gates, Nos. 12–5404, 12–5399, 12–5401 (D.C.Cir. April 27, 2013). Because the Government concedes its continuing custody over four of the five Appellants, we accept the Appellants' alleged location of their detention as accurate for the purpose of our jurisdictional analysis.

B. Legal Framework

In 2006, the Congress enacted the Military Commissions Act of 2006 (2006 MCA), Pub.L. No. 109–366, 120 Stat. 2600. It provides, in pertinent part, that

[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination ... pending on or after the date of the enactment of this Act....

Id. § 7(a), (b), 120 Stat. at 2635–36 (codified at 28 U.S.C. § 2241(e)(1) (2006)). We held that section 7 stripped the court of jurisdiction to consider any habeas petition filed by any alien detained as an enemy combatant outside the United States. Boumediene v. Bush, 476 F.3d 981, 986–88 (D.C.Cir.2007). Relying on the United States Supreme Court's decision in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), we further concluded that section 7 did not unconstitutionally suspend the writ because the Suspension Clause's protections did not reach the United States Naval Station Guantanamo Bay (Guantanamo) in Cuba. Id. at 990–94. In Eisentrager, German citizens detained by the United States at Landsberg Prison in post-World War II Bavaria petitioned for writs of habeas corpus. 339 U.S. at 765–66, 70 S.Ct. 936. The Supreme Court held that the constitutional right to the writ of habeas corpus did not extend to the German prisoners. Id. at 781, 70 S.Ct. 936. Our Boumediene decision read Eisentrager to hold that the protections of the Suspension Clause did not extend to aliens held outside the sovereign territory of the United States, including Guantanamo. Boumediene, 476 F.3d at 990–92.

The Supreme Court reversed. Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). It rejected the “premise that de jure sovereignty is the touchstone of habeas jurisdiction.” Id. at 755, 128 S.Ct. 2229;...