UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FADI AL MAQALEH, et al.,
Petitioners,
v. Civil Action No. 06-1669
ROBERT GATES, et al.,
Respondents.
HAJI WAZIR, et al.,
Petitioners,
v. Civil Action No. 06-1697
ROBERT GATES, et al.,
Respondents.
AMIN AL BAKRI, et al.,
Petitioners,
v. Civil Action No. 08-1307
BARACK H. OBAMA, et al.,
Respondents.
REDHA AL-NAJAR, et al.,
Petitioners,
v. Civil Action No. 08-2143
ROBERT GATES, et al.,
Respondents.
MEMORANDUM OPINION
Petitioners in these consolidated cases have filed a Joint Motion to Amend Petitions for
Writ of Habeas Corpus. They contend that there is new evidence that bears on this Court's
jurisdiction over their petitions challenging their continued detention by the United States at
Bagram Air Base in Afghanistan, and that amendment to permit consideration of that evidence
should be "freely given" under Fed. R. Civ. P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 182
(1962). Respondents oppose the attempt to amend the petitions, challenging the claim that there
is "new" evidence that undermines the earlier decision of the D.C. Circuit that the petitions
should be dismissed, see Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), and arguing that
amendment would therefore be futile.
Following the D.C. Circuit's decision, petitioners sought rehearing based, in part, on
additional evidence not previously in the record. The Court of Appeals denied rehearing, but
noted that the denial was without prejudice to petitioners' "ability to present this evidence to the
district court in the first instance." Maqaleh v. Gates, No. 09-5265 (D.C. Cir. July 23, 2010).
Petitioners now seek to amend their habeas petitions with what they assert is newly discovered
evidence that undercuts the basis of the D.C. Circuit's prior decision finding no jurisdiction over
their petitions.
Generally, the additional evidence that petitioners now proffer is the following:
operational and substantive changes to the U.S. detention system at Bagram Air Base, including
the commencement of civilian criminal trials for Afghan nationals there; movement and
retention of detainees in Afghanistan allegedly reflecting Executive Branch efforts to avoid
judicial scrutiny of detention practices and policies; and current specifics of plans to continue to
hold non-Afghan detainees in a new facility at Bagram in an attempt to evade any obligations
before the courts. Petitioners claim that this purportedly new evidence warrants reexamination
of the jurisdictional analysis undertaken in this case by this Court and then by the D.C. Circuit,
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applying Boumediene v. Bush, 553 U.S. 723 (2008). Under the principle that leave to amend
under Rule 15(a)(2) should be freely given, see Foman, 371 U.S. at 182; Mayle v. Felix, 545
U.S. 644, 654 (2005) (noting application of Rule 15 to habeas petitions under Habeas Corpus
Rule 11 and Fed. R. Civ. P. 81(a)(2)), petitioners urge this Court to permit them to file amended
habeas petitions or, alternatively and at a minimum, allow jurisdictional discovery to proceed.
Respondents counter that the assertions on which petitioners rely are not factually based
and any evidence they proffer is not in fact new. Engaging in a detailed examination of
petitioners' proposed amended habeas petitions and their legal analysis, respondents urge the
Court to deny the motion to amend as futile under Foman v. Davis because the amended
petitions would not survive a motion to dismiss. To a large extent, respondents' argument is
based on a close analysis of the proffered amended petitions under the standard established by
the Supreme Court in Boumediene and previously applied by the D.C. Circuit in this case.
The parties' filings reveal vastly different assessments of the additional evidence on
which petitioners' motion is based, and of the impact of that evidence. To be sure, not all of the
evidence petitioners characterize as "new" really represents any change of relevance with respect
to the government's handling of detainees at Bagram. And respondents have a fair point that
recent developments as borne out by the facts may not significantly alter a proper assessment of
the Boumediene factors as applied by the D.C. Circuit.
But ultimately the Court concludes that the examination respondents urge, and the
assessment of petitioners' "new" evidence that the law (and arguably the D.C. Circuit's July 23,
2010 order) requires, is best undertaken by permitting the requested amendments and then
addressing the petitions on their merits through the vehicle of a motion to dismiss filed by
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respondents. The proffered evidence is extensive (and arguably evolving) and, in some ways, its
impact under the Boumediene/Maqaleh factors is subtle. While the Court has some doubts about
the consequence of the additional evidence under that analytical framework, that issue is better
explored through full consideration of the evidence and the parties' positions, rather than under
the limited "futility" appraisal in which it is now presented. That will, moreover, be consistent
with Rule 15's strong encouragement of amendment -- if the facts presented may enable relief
then amendment should be "freely given" and a plaintiff should be permitted the opportunity to
have the claims tested on their merits. Foman, 371 U.S. at 182.
Therefore, the Court will grant petitioners' joint motion to amend their habeas corpus
petitions. The Court expects, however, that granting the motion will enable more careful
scrutiny of the amended petitions through a motion to dismiss filed by respondents, and through
firm application of the analytical framework established by the Supreme Court in Boumediene
and applied by the D.C. Circuit in Maqaleh. At this time, the Court will deny petitioners'
alternative request for jurisdictional discovery. If petitioners continue to believe that such
discovery is needed, and warranted under the law, in response to a request to dismiss their
amended habeas corpus petitions, they can assert that position in their opposition. A separate
order has been filed with this Memorandum Opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: February 15, 2011
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