Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FADI AL-MAQALEH, et al., Petitioners, v. Civil Action No. 1:06-CV (JDB LEON E. PANETTA, et al., Respondents. AMIN AL-BAKRI, et al., Petitioners, v. Civil Action No. 1:08-CV (JDB BARACK OBAMA, et al., Respondents. REDHA AL-NAJAR, et al., Petitioners, v. Civil Action No. 1:08-CV (JDB LEON E. PANETTA, et al., Respondents. RESPONDENTS OPPOSITION TO PETITIONERS MOTION TO FILE SUPPLEMENTAL MATERIALS IN FURTHER SUPPORT OF PETITIONERS OPPOSITION TO MOTION TO DISMISS Respondents hereby oppose Petitioners motion to file supplemental materials in support of their opposition to Respondents motion to dismiss. The motion to dismiss has been fully briefed since July 18, Despite Petitioners claim that the more than 100 pages of supplemental materials have come to light after the filing of their opposition to Respondents motion to dismiss that go directly to the question of subject matter jurisdiction, Petrs Mot. at 2, the materials present nothing new and are irrelevant to the jurisdictional question before the

2 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 2 of 14 Court. Much like the allegedly newly discovered evidence in Petitioners amended habeas petitions, the new materials are merely part of a continuum of the latest media reporting of the United States detention policy since the war began. For example, Petitioners seek to include a news article about the latest construction projects at Bagram, despite the fact that both this Court and the Court of Appeals have rejected the proposition that the military s construction activities at Bagram are relevant to the jurisdictional question. The new materials also include an article about a detainee death in Abu Ghraib in Iraq in 2003, which clearly has nothing to do with whether the Suspension Clause applies to Bagram. If Petitioners attempt is to provoke outrage about the injustice they contend was done to that detainee in Iraq, as the article includes a highly disturbing and inflammatory photograph, this is not the proper forum. Petitioners also seek to include information concerning a recent book by a former agent of the Central Intelligence Agency ( CIA about his interrogation of an unidentified high-value detainee as part of the CIA s counterterrorism effort in the immediate aftermath of the September 11th attacks. It appears that Petitioners seek to include this information to show that the United States detention of this man was unjust and thus, that the entire U.S. detention policy was illegitimate. Any such contention, however, says nothing about the constitutional calculus used to determine the extension of the writ to Petitioners detention at Bagram, where they alleged that they have been held since at least 2003 or 2004 and where their status has been reviewed on multiple occasions using the robust procedures fully implemented since Equally irrelevant is the government s latest Freedom of Information Act ( FOIA litigation regarding the proper classification of a document listing the criteria for assessing whether a Bagram detainee poses an enduring security threat ( EST for purposes of 2

3 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 3 of 14 discretionary release or transfer. Not only is the document at issue a blank form, but as demonstrated in Respondents reply in support of their motion to dismiss, threat assessment of a detainee, including whether he has been recommended for release or transfer, is irrelevant to the legality of his detention or status under the Authorization for Use of Military Force ( AUMF, Pub. L , 115 Stat. 224 (2001. Indeed, the Court of Appeals has repeatedly so held. In sum, even the liberal standard for amendment of pleadings, which is not even applicable here, does not permit Petitioners continuing attempt to unnecessarily prolong the litigation of a jurisdictional issue about which an unanimous panel of the Court of Appeals has definitively ruled. Accordingly, this Court should deny Petitioners motion. Should this Court nevertheless decide to grant the motion, Respondents respectfully request permission to file a brief to fully respond to the new materials. ARGUMENT THIS COURT SHOULD DENY PETITIONERS MOTION TO FILE SUPPLEMENTAL MATERIALS I. Even If the Liberal Standard Under Rule 15(d Applies to the Review of Petitioners Motion, It Does Not Permit Petitioners Submission of Supplemental Materials Here. Petitioners move to file supplemental materials pursuant to Federal Rule of Civil Procedure 15(d, which authorizes a court to permit a party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the 1 pleading sought to be supplemented. This Rule, by its express terms, has no application to Petitioners motion as it only permits a party to move to supplement a pleading. See Fed. R. Civ. 1 Although this case does not involve habeas petitions based on the federal habeas statute, see 28 U.S.C. 2241(e(1 (withdrawing statutory habeas jurisdiction over petitions filed by aliens such as Petitioners, the standard for reviewing amendments to pleadings in statutory habeas cases may provide guidance here. 3

4 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 4 of 14 P. 7(a (defining seven categories of pleadings. It is not a vehicle for a party to supplement the record after the conclusion of briefing on a defendant s motion to dismiss. Petitioners also have not cited any other rule or principle that would permit their submission here. Accordingly, their motion to file supplemental materials should be rejected on this ground alone. Even if Rule 15(d could appropriately be used as guidance, it would still counsel in favor of denying Petitioners motion. In deciding whether to grant or deny a motion to supplement a pleading, the Court may consider the merits of the proposed supplement. Burka v. Aetna Life Ins. Co., 945 F. Supp. 313, 317 (D.D.C The decision whether to grant leave to supplement a pleading is within the discretion of the Court, but leave should be freely given unless there is a good reason, such as futility, to the contrary. Wildearth Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C (quoting Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996; see also Foman v. Davis, 371 U.S. 178, 182 (1962 ( futility of amendment is proper basis for denying leave to amend; Sai v. Clinton, No , 2011 WL , *6 (D.D.C. March 9, 2011 (denying a Rule 15(d motion to supplement because the supplement would not cure the defect in subject matter jurisdiction. As discussed below, Petitioners proposed supplement does not lend support to the proposition that habeas jurisdiction extends to Bagram, and because the supplement is futile, Petitioner s motion should be denied. Moreover, [t]he rule s basic aim is to make pleadings a means to achieve an orderly and fair administration of justice. Jones v. Bernanke, 685 F. Supp. 2d 31, 35 (D.D.C (quoting Gomez v. Wilson, 477 F.2d 411, 417 (D.C. Cir This is a case where Petitioners have had ample opportunity to present any and all arguments in support of their assertion of federal court jurisdiction. The lengthy litigation history leading up to the Court of Appeals 4

5 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 5 of 14 decision holding that the Suspension Clause does not apply to Petitioners detention at Bagram was followed by re-litigation of the jurisdictional issue in the guise of newly discovered evidence, which consists principally of media speculations and reports that do not change the factual predicates to the Court of Appeals holding. The government s motion to dismiss is again fully briefed. Petitioners again claim that significant additional factual information has surfaced. Petrs Mot. at 1-2. Yet, the new materials represent no more than another attempt to barrage the Court with the latest news articles or reports about the United States detention facilities or policy at Bagram or elsewhere. They present nothing new, and even Petitioners themselves admit that the new materials are merely duplicative of the claims and assertions they have already made to date. See Petrs Mot. at 8 ( The supplemental materials at issue... do not reflect new claims or arguments that Respondents have not already attempted to address in their two briefs.. In the interest of justice, judicial economy, and finality, this Court should deny Petitioners motion to supplement. II. The Proposed Submission Does Not Change The Fact That Habeas Jurisdiction Does Not Extend to Bagram, And Thus, The Supplement Should Be Rejected As Futile. A. Declaration of Petitioner al-maqaleh s Father Petitioners seek to submit the declaration of Petitioner al-maqaleh s next friend, his father, asserting that al-maqaleh informed his father in a telephone call on April 29, 2011 that he had been cleared for release by the Detainee Review Board ( DRB. See Petrs Mot. Ex. 1, Declaration of Tina Foster, Attachment 1, 14. Of course, more than three weeks earlier on April 4, 2011, al-maqaleh s Second Amended Petition already alleged that al-maqaleh was cleared for release by the DRB. See 2d Am. Pet And, Respondents motion to dismiss has already shown that the allegation is irrelevant to the jurisdictional question. See Mot. to 5

6 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 6 of 14 Dismiss at 24; Reply In Support of Mot. to Dismiss at As Respondents have previously shown, the Court of Appeals has repeatedly held that whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained lawfully. Almerfedi v. Obama, F.3d, No , 2011 WL at *8 n.3 (D.C. Cir. June 10, 2011; accord Awad v. Obama, 608 F.3d 1, 11 (D.C. Cir (emphasis added. Instead, the United States authority to continue to hold a detainee under the AUMF is dependent upon the continuation of hostilities. Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir That is, the DRB s alleged recommendation to transfer or release al-maqaleh is not a relevant consideration even if this Court has habeas jurisdiction. Instead, for purposes of the jurisdictional analysis, the Supreme Court has identified the status of the detainee as a relevant consideration. Boumediene v. Bush, 553 U.S. 723, 727 (2008. That factor concerns whether the detainee has been determined to be lawfully detained under the AUMF, as informed by the laws of war. It is distinct from the additional analysis of whether the United States should nevertheless release or transfer such a detainee because the threat posed by the detainee may be mitigated by means other than continued detention by U.S. forces. In other words, DoD s threat assessment, upon which any discretionary release or transfer recommendation for a detainee meeting the criteria for internment would be based, says nothing about the DRB s determination that an individual is lawfully detained under the AUMF. Only the latter is a relevant Boumediene factor. And here, al-maqaleh, like the other two Petitioners, has been determined to be properly detained under the AUMF. See Declaration of Robert S. Harward, dated May 13, 2011 (attached as Ex. 2 to Resp. Mot. to Dismiss, 15, 18, 21. Moreover, even assuming that the DRBs have recommended Petitioners release, the 6

7 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 7 of 14 decision whether to accept the DRB s recommendation is entirely committed to the discretion of the Executive and necessarily involves complex diplomatic, political, and national security considerations. For example, as Respondents explained in their reply in support of their motion to dismiss (at 10, the President has imposed a moratorium on transfers to Yemen, Petitioner al- Maqaleh s country of origin, due to the security situation there. These considerations are not within the province of the judicial branch. The declaration of al-maqaleh s father is also offered to show that there allegedly is confusion among the Bagram detainees regarding whether they are entitled to have counsel visit them at Bagram. The proposition that this information is somehow relevant to the jurisdictional question is far fetched. This information purportedly shows that Bagram detainees are less likely to trust the personal representatives assigned to assist them in their DRB proceedings. Even if true, it is unclear how this would materially affect the jurisdictional analysis. Moreover, the detainees are free to ask their personal representatives for clarification. Indeed, the personal representatives are presumed to discharge their duties in good faith. See United States v. Morgan, 313 U.S. 409, 421 (1941; CTIA-The Wireless Ass'n v. FCC, 530 F.3d 984, 989 (D.C. Cir ( we have long presumed that executive agency officials will discharge their duties in good faith. And, even if a detainee continues to distrust the personal representative as Petitioners claim, it does not follow that the DRB process is rendered so unreliable and deficient such that it tips the constitutional scale in favor of extending the writ to Bagram. B. Department of Defense s Criteria For Determining Enduring Security Threats Petitioners also seek to include an ACLU press release about its FOIA litigation in the Southern District of New York, ACLU v. Dep t of Defense, No. 09-CV-8071 (BSJ(FM. See Foster Decl. 4-5, Attachment 2. In that case, the government mistakenly released to the 7

8 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 8 of 14 ACLU two copies of a blank form classified at the SECRET level that lists criteria used by the DRB to determine whether to categorize a detainee as an Enduring Security Threat ( EST. The parties in that case are currently litigating whether the document is properly classified and should, therefore, be returned to the government. Neither that litigation, nor the specific criteria for assessing ESTs, has anything to do with the jurisdictional question here. Respondents have never disputed that some Bagram detainee are classified as ESTs pursuant to the DRB policy guidance, see Ex. B to Harward Decl. at 5; Ex. C to Harward Decl. at As for Petitioners allegations that they have been classified as ESTs, Respondents have pointed out that even if true, it would mean only that any recommendation to transfer or release Petitioners would require a higher level of approval than is required for detainees not classified as ESTs. In other words, the fact that some Bagram detainees are classified as ESTs does not support Petitioners claim that the United States intends to detain them indefinitely, even if the continued detention during ongoing hostilities were somehow relevant to show that habeas jurisdiction should extend to Bagram, which it is not. The EST criteria have no bearing on the jurisdictional question because again, as discussed above, DoD s threat assessment of a detainee is irrelevant to the status of the detainee prong of the Boumediene analysis. The declaration submitted by the government in the ACLU FOIA litigation similarly supports this proposition. See ACLU v. Dep t of Defense, No. 09-CV-8071, Declaration of William K. Lietzau, dated July 13, 2011, ECF No. 57. As the Deputy Assistant Secretary of Defense for Detainee Policy states, a DRB is an administrative board of military officers charged with (a determining whether the criteria are satisfied to subject an individual to detention by U.S. Armed Forces pursuant to the Authorization for Use of Military Force, as informed by law-of-war principles; and, if so, (b making a disposition 8

9 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 9 of 14 recommendation to the convening authority (e.g., continued internment, transfer to Afghanistan authorities for prosecution or participation in a reintegration program. Id. 9 (citing Pub. L. No , 2(a, 115 Stat. 224 (2001 (codified at 50 U.S.C As part of the second assessment that of the detainee s threat level DRBs consider whether the detainee meets the criteria for classification as an Enduring Security Threat ( EST, as that term is defined in policy guidance authored by the Deputy Secretary of Defense. Id. Categorization of a detainee as an EST does not have implications related to the lawfulness of detention, but is simply a means of identifying the highest-threat detainees for purposes of implementing the U.S. s discretionary transfer and release determinations, because the transfer or release of ESTs must be approved at a higher level than is required to approve the transfer or release of non-ests. Id. In sum, the EST analysis is separate and distinct from the determination that a detainee is properly held under the AUMF, and thus, Petitioners proposed submission about the ACLU litigation is irrelevant to the jurisdictional analysis here. C. Construction of Detention Facilities at Bagram Petitioners have unsuccessfully argued, both before this Court and the Court of Appeals, that the military s construction activities at Bagram Airfield evidence the United States intent to remain at Bagram indefinitely and its plenary control over Bagram. See Maqaleh v. Gates, 604 F. Supp. 2d 205, 225 (D.D.C ( the construction of sturdy structures and familiar amenities does not weigh into the constitutional analysis ; [d]uring other recent periods of wartime presence in foreign lands, particularly Vietnam, similar extensive facility construction efforts occurred. Indeed, the significance of the United States construction activities at Bagram was part of the extensive dialog [the Court of Appeals had during oral argument] with counsel for the petitioners in which [the Court] repeatedly sought some limiting principle that would 9

10 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 10 of 14 distinguish Bagram from any other military installation and that counsel was able to produce no such distinction. Maqaleh, 605 F.3d at 95; see also Maqaleh v. Gates, No , Oral Argument Tr (Jan. 7, 2010 (attached to Respondents reply in support of their motion to dismiss (Judge Edwards: we re trying to understand what, what factors, or what factorial analysis you would apply. You certainly wouldn t say, first on my list is how expensive is the detention facility, right?. Yet, Petitioners persist in submitting information about the military s current construction projects at Bagram, including the building of modular detention housing units, as discussed in an article on Wired.com. See Foster Decl., 6 and attachment 3. Again, regardless of the article s accuracy about the specifics of the construction projects, the information that the United States will continue to construct facilities at Bagram is not new. As the Deputy Assistant Secretary of Defense Lietzau, explained in his declaration submitted in May 2011 in support of Respondents motion to dismiss, the military is planning for new construction to provide additional detainee housing capacity adjacent to the [Detention Facility in Parwan]. Lietzau Decl. 5. This additional detention capacity will enable U.S. forces to continue to conduct detention operations on a limited basis during the ongoing surge in military operations in Afghanistan and pending the transfer of non-afghan detainees to their home countries or to third countries. Id. More importantly, U.S. forces will eventually transition this additional housing capacity to the Afghan government. Id. Respondents have repeatedly affirmed throughout this litigation, and indeed both President Obama and former President Bush have also indicated publicly, that the United States is fully committed to supporting Afghan sovereignty and territorial integrity. The United States has no intention to stay Bagram beyond the cessation of hostilities. Accordingly, this Court should no longer indulge Petitioners persistence in submitting the same type of 10

11 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 11 of 14 information fully litigated by the parties and already rejected by the Court of Appeals. D. Former CIA Agent s Book About A High-Value Detainee in CIA s Detention Program Petitioners also seek to include two news articles from Harper s Magazine about a former CIA agent s memoir, entitled The Interrogator: An Education, about his interrogation of a highvalue detainee during the early days of the CIA s counterterrorism effort immediately following the 9/11 attacks. See Foster Decl. 7-9 and attachments 4-6. Although the book, an excerpt of which is also included in Petitioners submission, does not identify the high-value detainee, the Harper s Magazine reporter speculates that it was Haji Pacha Wazir or Pacha Wazir. He drew that conclusion based in part on interviews with Petitioners counsel, who also represented a former Bagram detainee named Haji Wazir. See Foster Decl., Attachment 6 at 1-2. Petitioners thus assert that the former habeas Petitioner Haji Wazir was the alleged high value detainee. Haji Wazir s habeas petition was dismissed by this Court for lack of subject matter jurisdiction, and his appeal was mooted by his release from U.S. custody. According to Petitioners, because The Interrogator allegedly shows that Mr. Wazir was an innocent man who was unjustly kept in prison [for] eight years, Petrs Mot. at 6, these new materials regarding the publication of a memoir highlight the unreliability of the Executive s status and detention processes and determinations as well as the consequent necessity of meaningful judicial review. Id. Petitioners argument amounts to no more than the grossly broad proposition that this Court should exercise habeas jurisdiction because innocent men are being held abroad by the United States during the current armed conflict. The extraterritorial application of the Suspension Clause under Boumediene, however, requires a much more disciplined analysis. And, under that analysis, materials reporting on publication of The Interrogator are wholly irrelevant. Putting aside the fact that a former government employee s statements about his prior 11

12 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 12 of 14 tenure with the government do not constitute U.S. government admissions as Petitioners incorrectly claim, see Petrs Mot. at 5, neither the CIA s counterterrorism effort nor Mr. Wazir s alleged innocence casts doubt on the reliability of the detainee review process at Bagram. Each of the three Petitioners alleges that he was in CIA detention before being transferred to Bagram in 2003 or See Al-Maqaleh 2d Am. Pet ; al-najar Am. Pet ; al- Bakri Am. Pet DoD began implementing the DRB procedures in late 2009, and each Petitioner s status has been reviewed by the DRB on multiple occasions since then. See Harward Decl. 15, 18, 21. The DRB procedures are the relevant procedures for purposes of assessing the adequacy of process prong of the Boumediene multi-factor test. And, Respondents have already fully demonstrated in their motion to dismiss that the adequacy of process factor does not tip the constitutional scale in favor of extending the writ to Bagram. E. The News Article About A Detainee Death at Abu Ghraib, Iraq For the same reasons, this Court should also reject Petitioners attempt to submit a July 13, 2011 news article about a detainee who allegedly was brought to Abu Ghraib, Iraq by the CIA in November 2003 as part of a ghosting program not sanctioned by the CIA and who died allegedly shortly after his interrogation by the CIA. See Foster Decl. 10, and Attachment 7. The apparent connection to this case is that Petitioner al-maqaleh alleges that he, too, was at Abu Ghraib, purportedly after having been captured outside Afghanistan and held in CIA detention and prior to being transferred to Bagram around Al-Maqaleh 2d Am. Pet ; see also Foster Decl., Attachment 1 (al-maqaleh s father averred that he first heard from al-maqaleh in 2004 through the International Committee of Red Cross. As Respondents have previously shown in their motion to dismiss, however, DoD records reflect that al-maqaleh was captured in Zabul, Afghanistan. See Harward Decl., 14. While 12

13 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 13 of 14 Respondents do not confirm or deny in this unclassified filing al-maqaleh s alleged places of detention, it is sufficient for purposes of the Court s jurisdictional analysis that al-maqaleh was neither captured nor detained at any time in the United States or at Guantanamo. The news article about a detainee death at Abu Ghraib is wholly irrelevant, even if Petitioner al-maqaleh had been held there. It is apparent that Petitioners purpose for including this article is to gratuitously share with this Court the inflammatory and disturbing photograph contained in that article. This litigation, however, is not the proper forum for airing criticisms of the United 2 States detention of individuals captured during this armed conflict. This and other information in Petitioners latest submission far exceeds what could have possibly been contemplated by the Court of Appeals when it noted, in its denial of Petitioners petition for rehearing, that the denial was without prejudice to Petitioners ability to bring the new information contained in that petition to the attention of this Court. CONCLUSION For the foregoing reasons, this Court should deny Petitioners motion to submit supplemental materials in support of their opposition to Respondents motion to dismiss the amended habeas petitions. Dated: August 12, 2011 Respectfully submitted, TONY WEST Assistant Attorney General JOHN R. TYLER Assistant Branch Director 2 Finally, Petitioners also seek to include the government s guidance to habeas counsel in the Guantanamo habeas litigation regarding the handling of Wikileaks information. The Wikileaks guidance is irrelevant to the jurisdictional question here, and Petitioners do not suggest otherwise. Accordingly, Respondents will not address it here. 13

14 Case 1:08-cv JDB Document 57 Filed 08/12/11 Page 14 of 14 /s/ Jean Lin JEAN LIN Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC Tel: ( Attorneys for Respondents 14