Fadi Maqaleh v. Chuck Hagel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2013 Decided December 24, 2013

No. 12-5404

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

Consolidated with 12-5399, 12-5401

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. 12-5407

AMANATULLAH, DETAINEE, AND ABDUL RAZAQ, AS NEXT

FRIEND TO AMANATULLAH,

APPELLANTS

v.

2

BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00536)

No. 12-5410

HAMIDULLAH, DETAINEE, AND WAKEEL KHAN, AS NEXT

FRIEND TO HAMIDULLAH,

APPELLANTS

v.

BARACK HUSSEIN OBAMA, PRESIDENT OF THE UNITED STATES,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(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.

3

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,

4

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 (2004) (plurality opinion); id.

at 588–89 (Thomas, J., dissenting) (agreeing that AUMF

authorizes detention); see also Boumediene v. Bush, 553 U.S.

723, 733 (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 132 S. Ct. 2739 (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, 132 S. Ct. 2739 (2012); Al-Bihani v. Obama, 590 F.3d

866, 872 (D.C. Cir. 2010), cert. denied, 131 S. Ct. 1814

(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

1

The Congress recently affirmed the President’s authority to

detain enemy combatants. See Fiscal Year 2012 National Defense

Authorization Act, Pub. L. No. 112-81, § 1021, 125 Stat. 1298,

1562 (2011) (codified at 10 U.S.C. § 801 note (2012)).

5

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

6

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.ht

ml. 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.

7

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 (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. The Supreme Court held

that the constitutional right to the writ of habeas corpus did

not extend to the German prisoners. Id. at 781. 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.

8

The Supreme Court reversed. Boumediene v. Bush, 553

U.S. 723 (2008). It rejected the “premise that de jure

sovereignty is the touchstone of habeas jurisdiction.” Id. at

755; see also id. at 764 (“Nothing in Eisentrager says that de

jure sovereignty is or has ever been the only relevant

consideration in determining the geographic reach of the

Constitution or of habeas corpus.”). Instead, construing

Eisentrager in light of the Insular Cases 2 and Reid v. Covert,

354 U.S. 1 (1957), the Supreme Court identified “a common

thread uniting” its extraterritoriality jurisprudence, to wit, that

“questions of extraterritoriality turn on objective factors and

practical concerns, not formalism.” Boumediene, 553 U.S. at

764. It identified

at least three factors . . . 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

writ.

Id. at 766. Applying the factors to the detainees at

Guantanamo, the Supreme Court concluded that the

Suspension Clause extended to Guantanamo and therefore the

Guantanamo detainees had a constitutional right to challenge

2

The Insular Cases were a series of cases addressing the reach

of the Constitution to U.S. territories located in the Caribbean and

the Pacific. See, e.g., Balzac v. Porto Rico, 258 U.S. 298 (1922);

Dorr v. United States, 195 U.S. 138 (1904); Hawaii v. Mankichi,

190 U.S. 197 (1903); De Lima v. Bidwell, 182 U.S. 1 (1901);

Dooley v. United States, 182 U.S. 222 (1901); Armstrong v. United

States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244

(1901).

9

the basis of their detention. Id. at 766–71. Because the

existing procedures did not afford them an adequate

opportunity to challenge their detentions, the Supreme Court

held that section 7 of the 2006 MCA is an unconstitutional

suspension of the writ at Guantanamo. Id. at 792.

C. Litigation History

The Al Maqaleh II Appellants petitioned the district court

for writs of habeas corpus. 3 Applying the three Boumediene

factors, the district court concluded that the Al Maqaleh II

Appellants were “virtually identical to the detainees in

Boumediene” and held that section 7 of the 2006 MCA

unconstitutionally suspended the writ at Bagram. Al Maqaleh

v. Gates, 604 F. Supp. 2d 205, 208–09 (D.D.C. 2009) (Al

Maqaleh I). We reversed, holding that significant differences

between Bagram and Guantanamo as well as the practical

difficulties posed by adjudicating habeas petitions in a war

zone barred extension of the Suspension Clause to Bagram. Al

Maqaleh II, 605 F.3d at 97–99. Shortly after our ruling, the

Al Maqaleh II Appellants sought rehearing on the basis of

new evidence which they claimed undermined our decision.

We denied the petition “without prejudice to appellees’ ability

to present this evidence to the district court in the first

instance.” Order, Al Maqaleh II, No. 09-5265 (D.C. Cir. July

23, 2011) (per curiam).

The Appellants then filed amended habeas petitions in

district court. The Al Maqaleh II Appellants argued that

changed circumstances relevantly distinguished their new

3

Appellant al-Maqaleh filed his petition before the Supreme

Court’s Boumediene decision and Appellants al-Bakri and al-Najar

filed their petitions after Boumediene issued. The respondents in

this case include the President, the Secretary of Defense (Secretary)

and several John and Jane Does.

10

petitions from those rejected in Al Maqaleh II. They claimed

that new evidence indicated that the United States intended to

remain at Bagram indefinitely; that obstacles to conducting

habeas proceedings were less severe than the Al Maqaleh II

court believed; that the United States detained them at

Bagram in order to evade the habeas jurisdiction of federal

courts; and that the propriety-of-detention determination

procedures used at Bagram were inadequate. Al Maqaleh v.

Gates, 899 F. Supp. 2d 10, 16 (D.D.C. 2012) (Al Maqaleh

III). In a thorough opinion, the district court dismissed the

petitions, concluding that the new evidence did not alter the

holding of Al Maqaleh II. Id. at 16–25. Appellant

Amanatullah raised nearly identical arguments in his petition

and they were rejected for largely the same reasons.

Amanatullah v. Obama, 904 F. Supp. 2d 45, 49–57 (D.D.C.

2012). Appellant Hamidullah argued that his infancy at the

time of his capture weighed in favor of extending the writ.

Hamidullah v. Obama, 899 F. Supp. 2d 3, 5–6 (D.D.C. 2012).

The district court rejected this argument as insufficient to

overcome the fact that Bagram is situated within a war zone.

Id. at 10. The Appellants timely appealed.

II

A. Standard of Review

We review de novo the dismissal of a habeas petition for

want of jurisdiction. Al Maqaleh II, 605 F.3d at 94; see also

United States v. Poole, 531 F.3d 263, 270 (4th Cir. 2008);

Wang v. Ashcroft, 320 F.3d 130, 139–40 (2d Cir. 2003).

Although we accept the allegations in the petition as true

when reviewing a motion to dismiss for lack of jurisdiction,

see Leatherman v. Tarrant Cnty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 164 (1993), that

formulation does not accurately account for the full scope of

our review. If the allegations upon which jurisdiction rests

11

are challenged, the district court may resolve the dispute and

consider its resolution of any disputed facts alongside the

petitioner’s undisputed allegations. Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 197–98 (D.C. Cir. 1992); see also Coal.

for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003); EEOC v. St. Francis Xavier Parochial Sch.,

117 F.3d 621, 624 n.3 (D.C. Cir. 1997); 5B CHARLES ALAN

WRIGHT & ARTHUR P. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1350, at 160 n.47 (3d ed. 2004) (collecting

cases). We review the district court’s resolution of factual

disputes for clear error. Herbert, 974 F.2d at 198.

We have already decided that we do not have habeas

jurisdiction at Bagram, see Al Maqaleh II, 605 F.3d 84, and

the law-of-the-circuit doctrine requires that we adhere to that

decision, see In re Grant, 635 F.3d 1227, 1232 (D.C. Cir.

2011) (“The law-of-the-circuit doctrine means that ‘the same

issue presented in a later case in the same court should lead to

the same result’ and that ‘[o]ne three judge panel . . . does not

have the authority to overrule another three-judge panel of the

court.’ ” (emphasis in original) (quoting LaShawn v. Barry, 87

F.3d 1389, 1393, 1395 (D.C. Cir. 1996) (en banc))). Our task,

therefore, is a modest one: to determine whether the

circumstances underlying Al Maqaleh II have changed so

drastically that we must revisit it. 4

4

Our review of the Al Maqaleh II Appellants’ appeal is further

constrained both by the law-of-the-case doctrine, see Kimberlin v.

Quinlan, 199 F.3d 496, 500 (D.C. Cir. 1999) (“The law-of-the-case

doctrine rests on a simple premise: the same issue presented a

second time in the same case in the same court should lead to the

same result.” (quotation marks omitted)), and by the derivative-

waiver doctrine, Crocker v. Piedmont Aviation, Inc., 49 F.3d 735,

739 (D.C. Cir. 1995) (“A legal decision made at one stage of

litigation, unchallenged in a subsequent appeal when the

12

B. Mootness

Events subsequent to oral argument require us to

determine whether Appellant Hamidullah’s appeal is moot.

On November 16, 2013, the United States transferred

Hamidullah to the custody of the government of Pakistan.

After learning of the transfer, we ordered the parties to brief

the mootness question. Having reviewed the briefs, we

conclude that the parties’ factual dispute regarding the nature

of Pakistan’s custody over Hamidullah must be resolved by

the district court in the first instance.

Under Article III of the Constitution, we have authority

to adjudicate only live cases or controversies. Already, LLC

v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “A case remains

live ‘[a]s long as the parties have a concrete interest, however

small, in the outcome of the litigation.’ ” United Bhd. of

Carpenters & Joiners of Am. v. Operative Plasterers’ &

Cement Masons’ Int’l Ass’n of the U.S. & Can., 721 F.3d 678,

687 (D.C. Cir. 2013) (quoting Knox v. Serv. Emps. Int’l

Union, Local 1000, 132 S. Ct. 2277, 2287 (2012)). This

“ ‘requirement subsists through all stages of federal judicial

proceedings, trial and appellate. It is not enough that a

dispute was very much alive when suit was filed’; the parties

must ‘continue to have a personal stake’ in the ultimate

disposition of the lawsuit.” Chafin v. Chafin, 133 S. Ct. 1017,

1023 (2013) (quoting Lewis v. Cont’l Bank Corp., 494 U.S.

472, 477–78 (1990)) (quotation marks, brackets and citation

omitted); see also Steffel v. Thompson, 415 U.S. 452, 459 n.10

(1974).

opportunity to do so existed, governs future stages of the same

litigation, and the parties are deemed to have waived the right to

challenge that decision at a later time.” (quotation marks and

brackets omitted)).

13

We have previously addressed the effect of a detainee’s

release on his pending habeas petition. In Gul v. Obama, two

aliens detained as enemy combatants filed habeas petitions

challenging their detentions. 652 F.3d 12, 14 (D.C. Cir. 2011).

During the pendency of their petitions, the United States

released them to the custody of foreign governments. Id.

They argued that their petitions were not moot, however,

because they continued to suffer “collateral consequences”

arising from their designation as enemy combatants. Id. at 15.

Under the collateral consequences doctrine, a prisoner’s

habeas petition challenging the legality of his conviction

becomes moot upon the expiration of his sentence unless he

can show that he continues to suffer some continuing harm, or

“collateral consequence,” from his conviction. United States

v. Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (citing

Spencer v. Kemna, 523 U.S. 1, 7–8 (1998); see also Carafas

v. LaVallee, 391 U.S. 234, 237–38 (1968) (announcing

collateral consequences doctrine). Assuming without

deciding that the collateral consequences doctrine applied, we

held that the petitioners’ alleged collateral consequences—

travel restrictions, ongoing danger of recapture under the laws

of war and stigma—were insufficient to save their petitions

from mootness. Id. at 18–21.

As in Gul, the Government has submitted a declaration

explaining that, when it transferred Hamidullah, it

“relinquish[ed] all legal and physical custody and control”

over him to the government of Pakistan. Supplemental Br. for

Resp’ts-Appellees, Ex. 1, Decl. of Paul Lewis, Special Envoy

for Detainee Transfers ¶ 3, Hamidullah v. Obama, No. 12-

5410 (D.C. Cir. Nov. 27, 2013) (Lewis Declaration). The

Government therefore contends that he is identically situated

to the petitioners in Gul and his appeal must be dismissed.

Hamidullah contests the Lewis Declaration, arguing that we

must remand to the district court to determine whether “the

14

United States has imposed transfer terms and conditions that

create[] a form of constructive United States custody after

transfer.” Supplemental Br. of Appellants 7–8, Hamidullah v.

Obama, No. 12-5410 (D.C. Cir. Nov. 27, 2013) (emphasis

omitted).

Although in Gul we credited the Government’s

declaration that it transferred both petitioners “entirely to the

custody and control of the receiving government,” Gul, 652

F.3d at 18 (quotation marks and brackets omitted), the district

court first examined those declarations and credited them over

the petitioners’ contrary allegations, In re Petitioners Seeking

Habeas Corpus Relief in Relation to Prior Detentions at

Guantanamo Bay, 700 F. Supp. 2d 119, 127–29 (D.D.C.

2010). In this appeal, however, we lack the benefit of the

district court’s examination of the evidence in the first

instance. We think it unwise to decide our jurisdiction when

it turns in part on unresolved factual questions. See Prakash v.

Am. Univ., 727 F.2d 1174, 1179–80, 1183 (D.C. Cir. 1984);

Marshall v. Local Union No. 639, Int’l Bhd. of Teamsters,

593 F.2d 1297, 1301 (D.C. Cir. 1979); see also Singleton v.

Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of

course, that a federal appellate court does not consider an

issue not passed upon below.”). We therefore remand

Hamidullah’s petition to the district court for the limited

purpose of determining whether he is in the sole custody of

the government of Pakistan. 5

5

We do not mean to say that the Lewis Declaration is

insufficient to settle the mootness question. Hamidullah bears the

burden of adducing facts sufficient to show that his case is not

moot. Gul, 652 F.3d at 21 (quoting Spencer, 523 U.S. at 11); see

also McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S.

178, 189 (1936) (Hughes, C.J.) (“[The plaintiff] must allege in his

pleading the facts essential to show jurisdiction.”). If the district

15

III

To decide whether the Appellants have any right under

the Suspension Clause, we apply Boumediene’s three-factor

test. We address each factor in turn. 6

A. Citizenship and Status

We first consider the “citizenship and status” of the

Appellants. In Boumediene, the petitioners were “aliens

designated as enemy combatants and detained” by the United

States but they disputed that designation. See Boumediene,

553 U.S. at 732, 766. The appellants in Al Maqaleh II were

identically situated and we held that this prong of the first

factor weighed in favor of extending the protection of the

Suspension Clause to Bagram. Al Maqaleh II, 605 F.3d at 96.

The Appellants now argue, however, that their citizenship and

status distinguish them from Boumediene and Al Maqaleh II

such that this prong now supports their argument for

extension of the Suspension Clause more strongly than

before. Their arguments require us to define the meaning of

“citizenship and status” under Boumediene.

Like the Boumediene petitioners and the Al Maqaleh II

appellees, the Appellants in these appeals are aliens detained

court determines that Hamidullah’s evidence fails to impugn the

Lewis Declaration’s accuracy, we believe that declaration would

suffice to establish that Pakistan is not detaining Hamidullah on the

United States’s behalf. See Gul, 652 F.3d at 18 & n.*; Kiyemba v.

Obama (Kiyemba II), 561 F.3d 509, 515 n.7 (D.C. Cir. 2009).

6

Both Boumediene and Al Maqaleh II treat the “citizenship and

status” and “adequacy of the process” prongs of the first factor as

analytically distinct and therefore we do as well.

16

as enemy combatants. 7 Appellant Amanatullah contends that,

although he is an alien, his Pakistani citizenship is relevant

because, as a Pakistani citizen, he is not a citizen of an enemy

nation. His specific alien citizenship is not relevant, however,

because the only relevant citizenship under Boumediene is

American citizenship. In Boumediene all of the petitioners

were “foreign nationals, but none [was] a citizen of a nation

[then] at war with the United States.” Boumediene, 553 U.S.

at 734. The Court accorded this observation no weight.

Instead, it focused on the fact that the “[p]etitioners, like those

in Eisentrager, [we]re not American citizens.” Boumediene,

553 U.S. at 766. Al Maqaleh II also focused exclusively on

whether the detainees were U.S. citizens or aliens. It

elucidated the analytical significance of the “citizenship”

prong by referencing the settled authority according U.S.

citizens more robust constitutional protections than

nonresident aliens. Al Maqaleh II, 605 F.3d at 95–96 (quoting

United States v. Verdugo-Urquidez, 494 U.S. 259, 273

(1990)). But the applicability of constitutional protections has

never turned on the specific citizenship of an alien; ceteris

paribus, a nonresident Briton is no more entitled to invoke the

7

At the outset, we note that the Supreme Court did not explain

the significance of a detainee’s alienage or enemy-combatant

designation. Although we held in Al Maqaleh II that the

petitioners’ citizenship and status weighed in favor of extending the

Suspension Clause, Boumediene did not so hold. Boumediene held

only that the petitioners’ challenge to the Government’s designation

put them in a stronger position than the Eisentrager petitioners,

who apparently did not “contest . . . the Court’s assertion that they

were enemy aliens.” Boumediene, 553 U.S. at 766 (quotation marks

and brackets omitted). We need not decide whether some status

other than “enemy combatant” would affect the Boumediene

analysis because we conclude that the Appellants are identically

situated to the petitioners in Boumediene.

17

rights of the Constitution than a nonresident Pakistani. We

therefore conclude that “citizenship” under Boumediene asks

only whether the detainee is a U.S. citizen or an alien.

Because Appellant Amanatullah is an alien, this prong weighs

no more in his favor than it did for the detainees in

Boumediene and Al Maqaleh II. 8

Although the Appellants are designated as enemy

combatants, they argue that characteristics other than the

designation are relevant to the “status” prong of the first

Boumediene factor. In so arguing, the Appellants sorely

misread Boumediene. “Status” does not refer to a detainee’s

individual characteristics but instead to the designation

8

Amanatullah’s argument might carry more weight if the basis

of his detention were his citizenship. Under the Alien Enemy Act,

Act of July 6, 1798, ch. 66, § 1, 1 Stat. 577 (codified at 50 U.S.C.

§ 21 (2006)), the President may summarily detain any person who

is a citizen of a nation with which the United States is at war. See,

e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 587 (1952); Ludecke

v. Watkins, 335 U.S. 160, 164 (1948); Brown v. United States, 12

U.S. (8 Cranch) 110, 126 (1814) (Marshall, C.J.) (stating that Alien

Enemy Act “confers on the president very great discretionary

powers respecting [alien enemies’] persons”); Citizens Protective

League v. Clark, 155 F.2d 290, 294 (D.C. Cir. 1946). Under the

AUMF, however, the President may detain only “enemy

combatants”—those persons the President determines are part of a

force engaged in hostilities against the United States. This power is

at once both broader and narrower than the power conferred on the

President by the Alien Enemy Act: it is not limited to any particular

citizenship but mere citizenship does not justify detention. The

distinction results from the nature of the current conflict. Our

enemies fly no flag, don no uniforms, bear no allegiance to any

state and hale from every corner of the globe. They put no stock in

Westphalian notions of sovereignty or citizenship; the AUMF

simply authorizes the President to meet the threat on our enemies’

terms.

18

justifying his detention. The Boumediene court had to

“determine whether petitioners are barred from seeking the

writ or invoking the protections of the Suspension Clause . . .

because of their status, i.e., petitioners’ designation by the

Executive Branch as enemy combatants.” Id. at 739 (emphasis

added). Similarly, the second prong of the first factor is the

“adequacy of the process through which that status

determination was made.” Id. at 769 (emphasis added). The

Supreme Court’s language makes clear that “status” does not

include the detainees’ personal characteristics but is instead

the label, or designation, placed on the detainee by the

President to justify the detainee’s detention.

Applying this definition of “status” to the Appellants’

arguments, we conclude that the Appellants are identically

situated to the Boumediene and Al Maqaleh II petitioners.

The Appellants allege that a Detainee Review Board (DRB)—

a military tribunal periodically convened to determine a

detainee’s status at Bagram—has cleared each of them for

release from Bagram and that this “status” weighs in their

favor. But the Government’s justification for detaining the

Appellants is unchanged: they remain designated as enemy

combatants. Because eligibility for release “is irrelevant to

whether a petitioner may be detained lawfully,” including

when our inquiry is into the propriety of the Government’s

status designation, we do not consider it as part of our

jurisdictional inquiry. Almerfedi v. Obama, 654 F.3d 1, 4 n.3

(D.C. Cir. 2011) (citing Awad v. Obama, 608 F.3d 1, 11 (D.C.

Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011)), cert. denied,

132 S. Ct. 2739 (2012).

Appellant Amanatullah separately contends that his

“actual status” entitles him to release. His argument is more

invective than substance but insofar as we apprehend it, he

appears to contend that the Suspension Clause must extend to

him because the United States has failed to prove that his

19

detention is lawful. Alternatively, he argues that he is at least

entitled to jurisdictional discovery in order to ascertain the

basis of his detention. We reject Appellant Amanatullah’s

argument not only because it is irrelevant under Boumediene

but also because it commits the fallacy of petitio principii.

Every habeas petition disputes the lawfulness of detention;

that dispute is the quintessence of habeas corpus. Munaf v.

Geren, 553 U.S. 674, 693 (2008) (“Habeas is at its core a

remedy for unlawful executive detention.”); INS v. St. Cyr,

533 U.S. 289, 301 (2001) (“At its historical core, the writ of

habeas corpus has served as a means of reviewing the legality

of Executive detention . . . .”). While we may not assess the

lawfulness of detention unless we have jurisdiction, Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998), we

“always have jurisdiction to determine [our] own

jurisdiction,” United States v. Ruiz, 536 U.S. 622, 628 (2002)

(citing United States v. United Mine Workers of Am., 330 U.S.

258, 291 (1947)). Appellant Amanatullah’s proposal is little

more than an end run around the jurisdictional inquiry: if our

jurisdiction turns on the lawfulness of detention, we will

always resolve that question because we always have

authority to decide our jurisdiction. Eliding the lawfulness of

detention with the extraterritoriality inquiry would eliminate

the need for an independent jurisdictional inquiry and result in

universal habeas jurisdiction. We unequivocally reject any

argument espousing the universal extraterritorial application

of the Suspension Clause. Al Maqaleh II, 605 F.3d at 95. 9

9

We also reject the Appellants’ argument that, because they

were not captured in places where the United States is currently at

war, their detention is not necessary to prevent their return to the

battlefield (because it either never existed or no longer exists). In

addition to the reasons already discussed, we reject the argument

because the Boumediene and Al Maqaleh II petitioners were

captured in places in which the United States was not at war and

20

We similarly deny Appellant Amanatullah’s request for

jurisdictional discovery to uncover the factual basis for his

detention. The district court has discretion to allow discovery

if it “could produce [facts] that would affect [its]

jurisdictional analysis.” Goodman Holdings v. Rafidain Bank,

26 F.3d 1143, 1147 (D.C. Cir. 1994). Denying discovery in

the absence of some “specific indication . . . regarding ‘what

facts additional discovery could produce that would affect the

court’s jurisdictional analysis’ ” is a proper exercise of that

discretion. Cheyenne Arapaho Tribes of Okla. v. United

States, 558 F.3d 592, 596 (D.C. Cir. 2009) (brackets omitted)

(quoting Mwani v. bin Laden, 417 F.3d 1, 17 (D.C. Cir.

2005)); see also Rules Governing Section 2254 and 2255

Cases in the U.S. District Courts, R. 6(a), 28 U.S.C. foll.

§ 2254 (2006 & Supp. III 2010) (discovery permitted in

habeas proceedings for good cause shown); Bracy v. Gramley,

520 U.S. 899, 904 (1997) (discussing discovery standard

under the Rules); Aguayo v. Harvey, 476 F.3d 971, 976 (D.C.

Cir. 2007) (stating that the Rules apply to section 2241

proceedings pursuant to Rule 1(b)). Discovery regarding the

lawfulness of Appellant Amanatullah’s detention cannot

advance our jurisdictional inquiry because it is irrelevant to

that inquiry. The district court therefore did not abuse its

discretion in denying discovery on that question. See United

States v. Gale, 314 F.3d 1, 6 (D.C. Cir. 2003) (citing Bracy,

that fact played no role in either court’s analysis. See Al Maqaleh

II, 605 F.3d at 87 (noting that petitioners were captured in Pakistan

and Thailand); Khalid v. Bush, 355 F. Supp. 2d 311, 316 (D.D.C.

2005) (noting that some Boumediene petitioners were captured in

Bosnia and Pakistan); In re Guantanamo Detainee Cases, 355 F.

Supp. 2d 443, 446 (D.D.C. 2005) (noting that other Boumediene

petitioners were captured in Gambia, Zambia, Bosnia and

Thailand).

21

520 U.S. at 909) (holding that denial of discovery in habeas

proceedings is reviewed for abuse of discretion).

B. Adequacy of the Process

We next consider “the adequacy of the process through

which that status determination was made.” Boumediene, 553

U.S. at 766. At the time of Boumediene, Combatant Status

Review Tribunals (CSRTs) were used pursuant to the

Secretary’s order to determine whether Guantanamo detainees

were properly designated as enemy combatants. Boumediene,

553 U.S. at 733; see also Memorandum from Paul Wolfowitz,

Deputy Secretary of Defense, Re Order Establishing

Combatant Status Tribunal, to the Secretary of the Navy (July

7, 2004), available at http://www.defense.gov/news/

jul2004/d20040707review.pdf. The Supreme Court

concluded that the use of CSRTs to determine a detainee’s

status weighed in favor of extending the Suspension Clause

because they “[we]re far more limited, and . . . f[e]ll well

short of the procedures and adversarial mechanisms that

would eliminate the need for habeas corpus review.” Id. at

767. This reasoning is the same used by the Court to

determine whether the CSRTs violated the Suspension Clause

after it decided that the Suspension Clause applied and is thus

slightly circular—an alien detained abroad is more likely to

have a right under the Suspension Clause if the United States

is violating his Suspension Clause right. We distill from the

Supreme Court’s discussion the following principle: the less

closely a propriety-of-detention determination resembles

traditional habeas review, the more likely the Suspension

Clause applies.

In Al Maqaleh II, Unlawful Enemy Combatant Review

Boards (UECRBs) created by order of the Secretary of

Defense had determined the status of Bagram detainees. We

held that because the UECRB afforded “even less protection

22

to the rights of detainees in the determination of status than

was the case with the CSRT,” this prong weighed in favor of

extending the Suspension Clause to Bagram detainees. Al

Maqaleh II, 605 F.3d at 96. In other words, because UECRB

procedures resembled traditional habeas procedures less than

did the CSRT procedures in Boumediene, the “adequacy of

process” prong weighed more heavily in favor of extending

the Suspension Clause to Bagram. Id. After Al Maqaleh I, the

Defense Department replaced the UECRB with the DRB. We

declined to consider the DRB procedures in Al Maqaleh II,

however, because no DRB had yet determined the status of

each of the Al Maqaleh II appellees. Id. at 96 n.4. Here,

however, separate DRBs have determined the status of each

Appellant so we now consider the adequacy of those

procedures.

The Appellants argue that the DRB procedures are still

insufficient substitutes for habeas review and provide fewer

protections than the CSRT did. Whatever the CSRTs’

protections may have been, the DRB procedures are

undoubtedly more akin to traditional habeas proceedings than

were the UECRB procedures. The Appellants conceded as

much in district court. See Al Maqaleh III, 899 F. Supp. 2d at

24. For example, detainees are now entitled to a personal

representative and may call witnesses, proffer evidence and

investigate potentially exculpatory information, none of

which the UECRBs permitted. Even if the DRB still falls

short of the CSRT procedures, they more closely resemble

habeas review than the UECRB procedures. Accordingly,

this factor weighs less in the Appellants’ favor than it did in

Al Maqaleh II. 10

10

The Al Maqaleh II Appellants complain that even if the DRB

procedures are facially more favorable to the detainees, the

Government’s application of those procedures effectively leaves the

23

C. The “Nature” of Bagram

The second factor in the Boumediene analysis is “the

nature of the sites where apprehension and then detention

took place.” Boumediene, 553 U.S. at 766. Boumediene held

that Guantanamo’s location outside the United States, like

Landsberg Prison’s location, weighed against extending the

Suspension Clause there. Id. at 768. But, unlike at

Guantanamo, U.S. control at Landsberg “was neither absolute

nor indefinite.” Id. The United States answered to its Allies

for its administration of Landsberg. Id. By contrast, “the

United States is . . . answerable to no other sovereign for its

acts” at Guantanamo. Id. at 770. Moreover, the United States

did not plan a long-term occupation of Germany, meaning the

United States’s control over Landsberg was only temporary.

Id. at 768. “Guantanamo Bay, on the other hand, is no

transient possession. In every practical sense Guantanamo is

UECRBs intact. Specifically, they assert that, although DRB

procedures afford detainees an opportunity to call witnesses, they

have been denied that opportunity. They cite as evidence their

counsel’s declaration that the Department of Defense denied her the

opportunity to testify before a DRB either by telephone or in

person. The Government disputed this claim in district court and

submitted an affidavit from a Defense Department official declaring

that the United States denied the Al Maqaleh II Appellants’

submitted request to have their counsel testify in person but did not

deny them the opportunity to have their counsel testify by

telephone. When the Al Maqaleh II Appellants learned that their

counsel could not testify in person, they refused to participate in the

proceedings and informed their personal representative that they did

not want their counsel to testify by telephone. The district court

resolved this factual dispute in the Government’s favor, see Al

Maqaleh III, 899 F. Supp. 2d at 25, and we perceive no error, much

less clear error, in its resolution, see Herbert, 974 F.2d at 198.

24

not abroad; it is within the constant jurisdiction of the United

States.” Id. at 768–69.

In Al Maqaleh II, we concluded that Bagram is far more

similar to Landsberg than to Guantanamo. We explained:

While it is true that the United States holds a leasehold

interest in Bagram, and held a leasehold interest in

Guantanamo, the surrounding circumstances are

hardly the same. The United States has maintained its

total control of Guantanamo Bay for over a century,

even in the face of a hostile government maintaining

de jure sovereignty over the property. In Bagram,

while the United States has options as to duration of

the lease agreement, there is no indication of any

intent to occupy the base with permanence, nor is

there hostility on the part of the “host” country.

Therefore, the notion that de facto sovereignty extends

to Bagram is no more real than would have been the

same claim with respect to Landsberg in the

Eisentrager case.

Al Maqaleh II, 605 F.3d at 97.

The Appellants argue that Al Maqaleh II no longer

controls our analysis because new evidence demonstrates that

the United States now intends to permanently occupy

Bagram. Although their argument is exceptionally difficult to

parse, the Appellants appear to contend that (1) the transfer of

Afghan prisoners, but not the Appellants, to Afghan custody

suggests that the United States intends to permanently hold

them; (2) because the war undertaken pursuant to the AUMF

may continue in perpetuity, and in any event far beyond the

end of U.S. operations in Afghanistan, the United States

intends to detain the Appellants indefinitely; and, (3) a new

agreement between the United States and Afghanistan

25

indicates that the United States will remain in Afghanistan

indefinitely.

The Appellants misapprehend the import of the second

factor; it calls for an examination of the extent of control over

the physical situs of detention and the permanence of that

control. Boumediene, 553 U.S. at 768; Al Maqaleh II, 605

F.3d at 96–97. The indefiniteness of the United States’s

control over the place of detention, not over the prisoners, is

the relevant issue. Whether the United States asserts authority

to detain the Appellants indefinitely under the AUMF is

relevant only if evidence demonstrates that the United States

intends to do so at Bagram. As we explain below, no such

evidence exists.

The Government in Al Maqaleh II represented that it had

no intention of remaining in Afghanistan permanently or of

establishing a permanent base or prison at Bagram. We took

the Government at its word. Al Maqaleh II, 605 F.3d at 97.

Subsequent events have confirmed, not undermined, the

Government’s declared intention. The 2012 MOU provided

for the eventual transfer of all Afghan detainees and U.S.

detention facilities to Afghanistan. The United States has

delivered on its promise, transferring both the DFIP and all

Afghan detainees to Afghanistan earlier this year. DEP’T OF

DEFENSE, PROGRESS TOWARD SECURITY AND STABILITY IN

AFGHANISTAN 139–40 (July 2013), available at http://

www.defense.gov/pubs/Section_1230_Report_July_2013.pdf.

The United States also recently transferred one of the

Appellants in these appeals to his home country. See supra

Section II.B. Moreover, the United States and Afghanistan

recently entered into an agreement in which Afghanistan

promised to “provide U.S. forces continued access to and use

of Afghan facilities through 2014” while the United States

“reaffirmed that it does not seek permanent military facilities

26

in Afghanistan.” Enduring Strategic Partnership Agreement

(ESPA), art. III, ¶ 6, U.S.-Afg., May 2, 2012, JA 747.

We do not suggest that this evidence affirmatively

establishes that the United States will transfer control of

Bagram by the end of 2014 nor does our decision rest on the

assumption that such a transfer will occur in 2014 or at any

other specific future date. The year 2014 is not a “sell by”

date after which this factor weighs in the Appellants’ favor.

We view this evidence merely as support for the conclusion

we reached in Al Maqaleh II that American control over

Bagram and its detention facilities lacks the permanence of

U.S. control over Guantanamo. See Al Maqaleh II, 605 F.3d

at 97.

The Appellants nevertheless contend that the ESPA

suggests that the United States intends to remain at Bagram

permanently. They argue that the ESPA “contemplates that

the US [sic] will maintain a military presence in Afghanistan

through at least 2024.” al-Maqaleh Br. 38 (emphasis in

original). We reject the Appellants’ disingenuous reading of

the ESPA. The only reference to the year 2024 in that

document is the provision that the ESPA “shall remain in

force until the end of 2024.” ESPA, art. VII, ¶ 1, JA 752.

Although the ESPA contemplates that a Bilateral Security

Agreement may permit U.S. forces to remain in Afghanistan

after 2014, nothing in the ESPA so provides. 11 Accordingly,

11

We are aware that a recently released draft of the Bilateral

Security Agreement grants the United States authority to maintain a

military facility at Bagram beyond 2014. We can only guess

whether the agreement will ever enter into force so it does not alter

our analysis. See Tim Craig & Karen DeYoung, Security Pact with

Afghans Cast into Doubt, WASH. POST, Nov. 26, 2013, at A1

(documenting significant obstacles to finalization of agreement).

27

the ESPA gives us “no indication of any intent to occupy the

base with permanence.” Al Maqaleh II, 605 F.3d at 97.

D. Practical Obstacles

1

Finally, we examine “the practical obstacles inherent in

resolving the prisoner’s entitlement to the writ.” Boumediene,

553 U.S. at 766. In Boumediene, the Court explained the

significance of this factor by reference to the facts of

Eisentrager:

When hostilities in the European Theater came to an

end, the United States became responsible for an

occupation zone encompassing over 57,000 square

miles with a population of 18 million. In addition to

supervising massive reconstruction and aid efforts the

American forces stationed in Germany faced potential

security threats from a defeated enemy. In retrospect

the post-War occupation may seem uneventful. But at

the time Eisentrager was decided, the Court was right

to be concerned about judicial interference with the

military’s efforts to contain “enemy elements, guerilla

fighters, and ‘werewolves.’ ”

Id. at 769–70 (citations omitted) (quoting Eisentrager, 339

U.S. at 784). 12 “[C]ontain[ing] enemy elements, guerilla

fighters, and werewolves,” however, was not the Eisentrager

Court’s only concern:

12

The “werewolves” noted in Eisentrager reference a nascent

guerrilla operation planned by the Nazis to resist Allied occupation

of Germany. See generally PERRY BIDDISCOMBE, WERWOLF!: THE

HISTORY OF THE NATIONAL SOCIALIST GUERRILLA MOVEMENT,

1944–1946 (1998).

28

The writ, since it is held to be a matter of right, would

be equally available to enemies during active

hostilities as in the present twilight between war and

peace. Such trials would hamper the war effort and

bring aid and comfort to the enemy. They would

diminish the prestige of our commanders, not only

with enemies but with wavering neutrals. It would be

difficult to devise more effective fettering of a field

commander than to allow the very enemies he is

ordered to reduce to submission to call him to account

in his own civil courts and divert his efforts and

attention from the military offensive abroad to the

legal defensive at home. Nor is it unlikely that the

result of such enemy litigiousness would be a conflict

between judicial and military opinion highly

comforting to enemies of the United States.

Eisentrager, 339 U.S. at 779. In Boumediene, the Supreme

Court found no “[s]imilar threats . . . apparent” in

adjudicating habeas petitions arising from Guantanamo.

Boumediene, 553 U.S. at 770. Unlike in Eisentrager, “[t]he

Government present[ed] no credible arguments that the

military mission at Guantanamo would be compromised if

habeas corpus courts had jurisdiction to hear the detainees’

claims.” Id. at 769. Moreover, “[t]here [was] no indication . .

. that adjudicating a habeas corpus petition would cause

friction with the host government.” Id. at 770.

In Al Maqaleh II, we concluded that the circumstances at

Bagram compelled an opposite conclusion. Emphasizing

Boumediene’s suggestion that its outcome may have been

different “ ‘if the detention facility were located in an active

theater of war,’ ” Al Maqaleh II, 605 F.3d at 98 (emphasis

omitted) (quoting Boumediene, 553 U.S. at 770), we held that

the practical concerns identified in Eisentrager “are more

relevant to the situation at Bagram than they were at

29

Landsberg” such that this factor “weigh[ed] overwhelmingly

in favor of the position of the United States,” id. at 97, 98.

Whereas Landsberg Prison stood within the land of a defeated

enemy, “Bagram remains in a theater of war” against a

formidable and determined foe. Id. at 98. If the adjudication

of habeas petitions would have interfered with the occupation

of a pacified country, a fortiori habeas proceedings would

interfere with combat operations on the battlefield. Finally,

unlike at Guantanamo, “[t]he United States holds the

detainees pursuant to a cooperative arrangement with

Afghanistan on territory as to which Afghanistan is

sovereign.” Id. at 99. Although we expressed uncertainty

about whether extending habeas jurisdiction to Bagram might

disrupt that arrangement, we recognized the risk in extending

our jurisdiction without being able to “say with certainty what

the reaction of the Afghan government would be.” Id.

The Government represents that the United States

remains at war in Afghanistan. Appellants do not dispute the

Government’s claim, nor can they. Whether an armed

conflict has ended is a question left exclusively to the political

branches. See Ludecke v. Watkins, 335 U.S. 160, 168 (1948);

The Three Friends, 166 U.S. 1, 63 (1897); The Protector, 79

U.S. (12 Wall.) 700, 701–02 (1871); The Prize Cases, 67 U.S.

(2 Black) 635, 670 (1862). Not only have the political

branches yet to announce an end to the war in Afghanistan,

but the President has repeatedly declared that it is ongoing.

The President’s Weekly Address, 2013 DAILY COMP. PRES.

DOC. 13 (Jan. 12, 2013); The President’s Address to the

Nation on Military Operations in Afghanistan from Bagram

Air Base, Afghanistan, 2012 DAILY COMP. PRES. DOC. 336

(May 2, 2012).

Because the war in Afghanistan continues, the war-borne

practical obstacles identified in Eisentrager still obtain at

Bagram. The United States in Afghanistan is not involved

30

merely in administering occupied territory and containing

scattered guerilla fighters but rather in quelling a large-scale

insurgency against the government of a regional ally. If

preserving the “prestige of our commanders” and avoiding

“conflict between judicial and military opinion” were

significant goals in administering an occupied land,

Eisentrager, 339 U.S. at 779, they are even more important in

an active war zone. Allowing prisoners previously declared

by the U.S. military to be enemy combatants to force military

commanders into civilian court may give our allies reason to

doubt the authority of, and promises made by, those

commanders. Orders issued by judges thousands of miles

away releasing those prisoners would undercut the

commanders’ authority all the more. Undermining the

prestige and authority of U.S. commanders may cause

“wavering neutrals” to throw their lot in with our enemies if

they believe that our commanders lack the authority to, for

example, provide the promised level of protection against

those enemies. As in Eisentrager, we simply cannot discern

how “allow[ing] the very enemies [a commander] is ordered

to reduce to submission to call him to account in his own civil

courts” would not “hamper the war effort and bring aid and

comfort to the enemy.” Id. Our conclusion is therefore

unchanged: the practical obstacles posed by hearing habeas

petitions from a war zone weigh “overwhelmingly” against

extending the Suspension Clause to Bagram.” Al Maqaleh II,

605 F.3d at 97. 13

13

Appellant Amanatullah suggests that our analysis should turn

on the acuteness of the danger posed to a particular installation by

the war, arguing that the practical obstacles posed by armed combat

are less extreme at Bagram than at a forward-operating base. We

do not premise constitutional distinctions on the inconstancies of

shifting battle lines or the burst of mortar shells. Instead, we

conclude that the practical obstacles identified in Eisentrager and

31

2

Although the state of war in Afghanistan is unchanged,

the Appellants argue that new evidence demonstrates the

practical obstacles identified in Al Maqaleh II are not as grave

as we previously believed. They allege that the United States

has participated in Afghan criminal proceedings at the JCIP

by mentoring Afghan personnel and collecting evidence for

those trials. They contend that this participation demonstrates

that habeas cases would not divert “ ‘efforts and attention

from the military offensive.’ ” al-Maqaleh Br. 19 (quoting

Eisentrager, 339 U.S. at 779).

The Appellants miss Eisentrager’s point. The question is

not whether, in the abstract, U.S. armed forces are capable of

participating in judicial proceedings. We do not doubt that,

with sufficient resources, U.S. forces could ably participate in

habeas proceedings. The question is whether their

participation would “divert [their] efforts and attention from

the military offensive abroad to the legal defensive at home.”

Eisentrager, 339 U.S. at 779 (emphasis added). The JCIP

proceedings are irrelevant to that inquiry because, unlike in

habeas proceedings, U.S. assistance in Afghan criminal

proceedings is a part of the “military offensive abroad.” One

of the chief objectives of the U.S. mission in Afghanistan is to

Al Maqaleh II obtain so long as the place of detention lies within an

active theater of war. The judiciary as an institution is wholly

incapable of making Appellant Amanatullah’s proposed

installation-by-installation factual inquiry. We are not the war-

fighting branch of our government. Drawing these distinctions

would carry us far afield from the “core areas of judicial

competence” and intensify the likelihood of error where the cost of

judicial error could be catastrophically high. Lebron v. Rumsfeld,

670 F.3d 540, 552 (4th Cir. 2012); cf. Vance v. Rumsfeld, 701 F.3d

193, 200 (7th Cir. 2012) (en banc).

32

deny our enemies a haven by building an Afghan state

capable of controlling its territory. See, e.g., The President’s

Remarks at the United States Military Academy at West

Point, New York, 2009 DAILY COMP. PRES. DOC. 962, at 3–4

(Dec. 1, 2009); The President’s Remarks to the American

Enterprise Institute for Public Policy Research, 43 WEEKLY

COMP. PRES. DOC. 165, 166–68 (Feb. 15, 2007). Part of our

state-building enterprise is the fostering of a judiciary capable

of administering Afghanistan’s criminal laws. See, e.g., DEP’T

OF DEFENSE, PROGRESS TOWARD SECURITY AND STABILITY IN

AFGHANISTAN 74–78 (Apr. 2012), available at

http://www.defense.gov/pubs/pdfs/Report_Final_SecDef_04_

27_12.pdf. Whether to devote available military resources to

the support of the Afghan criminal justice system or to the

pursuit of other objectives is the President’s choice to make.

His wartime resource-allocation decisions do not open the

door to the diversion of those resources “from the military

offensive abroad to the legal defensive at home.” Eisentrager,

339 U.S. at 779.

Eisentrager firmly supports our conclusion. During its

occupation of Germany, the United States participated in a

host of military tribunals convened to try former Nazi

officials for war crimes. The United States convened its own

military commissions in Germany and also participated in the

International Military Tribunal (IMT), an international body

convened by agreement among the Allied Powers. See

generally Charles Fairman, Some New Problems of the

Constitution Following the Flag, 1 STAN. L. REV. 587 (1949);

see also Agreement for the Prosecution and Punishment of the

Major War Criminals of the European Axis (London

Agreement), August 8, 1945, 59 Stat. 1544, 8 U.N.T.S. 279.

Suffice it to say that U.S. involvement in these tribunals went

far beyond mere mentoring. See generally ROBERT CONOT,

JUSTICE AT NUREMBERG (1993); see also Charter of the

33

International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544,

1546, 82 U.N.T.S. 279. Notwithstanding the resources

expended in these tribunals, the Supreme Court concluded

that habeas proceedings would divert “efforts and attention

away from the military offensive abroad to the legal defensive

at home.” Eisentrager, 339 U.S. at 779. We think the reason

for this is simple: military commissions are a part of the war

effort, see Madsen v. Kinsella, 343 U.S. 341, 360 (1952)

(military commissions necessary for “occupying power to

discharge its responsibilities fully”); In re Yamashita, 327

U.S. 1, 11–12 (1946) (military commissions are “important

incident to conduct of war”), whereas habeas proceedings are

not. Because the Nuremberg trials played no role in

Eisentrager, the JCIP trials play no role here.

The Appellants separately attack another practical

obstacle we identified in Al Maqaleh II, to wit, the disruption

of the relationship between the U.S. and Afghan governments

potentially created by extension of the Suspension Clause to

Bagram. Al Maqaleh II¸ 605 F.3d at 99. The Appellants claim

to have evidence that should allay our concern: a letter,

addressed to the Appellants’ counsel and written at their

behest, signed by the Afghan President’s Chief of Staff,

Abdul Karim Khurram. The letter, they argue, establishes

that the Afghan government prefers the extension of

Suspension Clause jurisdiction. In the letter, the author

thanks the Appellants’ counsel for their visit and writes:

The Government of Afghanistan was never been [sic]

informed of the transfer and imprisonment of [the

Appellants]. We are unaware of the number of foreign

nationals caught outside Afghanistan and brought to

Bagram. We have no desire for them to remain on our

territory. Furthermore, the Government of

Afghanistan favors these individual [sic] having

access to a fair judicial process and adjudication of

34

their case [sic] by a competent court. I hope this

conformation of the Afghan Government position will

allow you to pursue your efforts on behalf of

[Appellant] al-Bakri.

Letter from Abdul Karim Khurram, Chief of Staff to the

President of the Islamic Republic of Afg., to Ramzi Kassem

and Tina Foster (Sept. 19, 2012), JA 899.

The district court concluded that the letter did not

represent the Afghan government’s formal policy on the

detention of non-Afghan enemy combatants because it was a

private letter written to a private party. Al Maqaleh III, 899 F.

Supp. 2d at 20; Amanatullah, 904 F. Supp. 2d at 56. The

district court’s assessment seems reasonable but the letter

raises deeper concerns. We recently made clear that the

President alone conducts the nation’s foreign policy and it is

to him that we turn for authoritative statements on our

relations with foreign powers. See Zivotofsky ex rel.

Zivotofsky v. Sec’y of State, 725 F.3d 197, 211, 218–219

(D.C. Cir. 2013); see also United States v. Curtiss-Wright

Exp. Corp., 299 U.S. 304, 319 (1936) (“The President is the

sole organ of the nation in its external relations, and its sole

representative with foreign nations.” (quotation marks

omitted)); cf. Munaf, 553 U.S. at 700–02. Trying to divine the

letter’s meaning would carry us beyond the bounds of our

authority and into the exclusive “ ‘province . . . of the

Executive.’ ” Dep’t of Navy v. Egan, 484 U.S. 518, 529

(1988) (quoting Haig v. Agee, 453 U.S. 280, 293–94 (1981)).

Constitutional concerns aside, we also lack the

institutional wherewithal to assign to the letter its proper

weight. Foreign affairs are complicated and require a political

adroitness courts simply cannot supply. See Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 386 (2000) (noting that

courts lack competence to deal with “nuances of the foreign

35

policy of the United States” (quotation marks omitted));

Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159,

194 (1983) (“This Court has little competence in determining

precisely when foreign nations will be offended by particular

acts . . . .”). This case proves the point. Contemporaneously

with the writing of the letter, other Afghan officials

apparently issued public statements on Afghanistan’s detainee

policy which conflict with the letter’s rather cryptic statement.

See Al Maqaleh III, 899 F. Supp. 2d at 20 & n.4 (citing

Charlie Savage & Graham Bowley, U.S. to Retain Role as a

Jailer in Afghanistan, N.Y. TIMES, Sept. 6, 2012, at A1

(describing statements of high-ranking Afghan official calling

for United States to continue to detain non-Afghan

detainees)). In light of this apparent conflict, how would we

decide what Afghanistan’s policy in fact is? The short answer

is we are foreclosed from doing so. Because we lack the

competence and, more importantly, the power to negotiate the

subtleties of international politics, we run the very high risk of

misstating Afghanistan’s formal policy and “embarrass[ing]

the executive arm of the government in conducting foreign

relations.” Ex parte Republic of Peru, 318 U.S. 578, 588

(1943). The facts of this case confirm the wisdom of the

Framers’ decision to make the President the leader, and the

judiciary a follower, on foreign policy issues. See United

States v. Lee, 106 U.S. (16 Otto) 196, 209 (1882); United

States v. Palmer, 16 U.S. (3 Wheat.) 610, 634–35 (1818)

(Marshall, C.J.). 14

14

Even if the Appellants correctly characterize the letter, our

analysis of the third factor would be unchanged. We did not

premise our analysis in Al Maqaleh II on a belief that extending the

Suspension Clause to Bagram would in fact disrupt the U.S.-

Afghan diplomatic relationship. We held only that our uncertainty

counseled hesitation. Al Maqaleh II, 605 F.3d at 99. Even if we

were no longer uncertain about the implications of extending the

36

3

The Appellants complain that the district court weighed

the third factor too heavily in its analysis. See al-Maqaleh Br.

15 (describing district court’s use of third factor as “trump

card in the jurisdictional analysis” (quotation marks omitted)).

But the district court gave no more weight to the factor than

did we in Al Maqaleh II. Because the facts did not relevantly

change after Al Maqaleh II, the district court properly applied

our precedent.

Ultimately, then, the Appellants’ quarrel is with how we

weigh the third factor. They argue that by emphasizing the

third factor over the other two, we abandon our watchtower

on the wall separating the powers of our government. This

argument is meritless because we are bound by Al Maqaleh

II’s weighing of the factors and we, like the district court,

have followed our precedent here. Even if we could revisit Al

Maqaleh II, however, we think the Appellants’ argument

entirely misplaced in the context of petitions arising from a

war zone. The Supreme Court has held that the Suspension

Clause is a cornerstone of that wall, Boumediene, 553 U.S. at

743–46, and, in particular, a redoubt against executive power

run amok, see Lonchar v. Thomas, 517 U.S. 314, 322 (1996).

But in this case, we must place another separation-of-powers

concern on the scale. The prosecution of our wars is

committed uniquely to the political branches and we rarely

scrutinize it. Egan, 484 U.S. at 529 (“[U]nless Congress has

specifically provided otherwise, courts traditionally have been

reluctant to intrude upon the authority of the Executive in

military and national security affairs.”); Haig, 453 U.S. at 292

(“Matters intimately related to foreign policy and national

protection of the writ, Afghanistan’s current status as a war zone is

sufficient to tilt the third factor strongly in the Government’s favor.

37

security are rarely proper subjects for judicial intervention.”);

Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976) (“[T]he

conduct of foreign relations [and] the war power . . . . are so

exclusively entrusted to the political branches of government

as to be largely immune from judicial inquiry or interference.”

(quotation marks omitted)); see also Regan v. Wald, 468 U.S.

222, 242 (1984); Oetjen v. Cent. Leather Co., 246 U.S. 297,

302 (1918). Justice Jackson put it best:

[T]he very nature of executive decisions as to foreign

policy is political, not judicial. Such decisions are

wholly confided by our Constitution to the political

departments of the government, Executive and

Legislative. They are delicate, complex, and involve

large elements of prophecy. They are and should be

undertaken only by those directly responsible to the

people whose welfare they advance or imperil. They

are decisions of a kind for which the Judiciary has

neither aptitude, facilities nor responsibility and have

long been held to belong in the domain of political

power not subject to judicial intrusion or inquiry.

Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103,

111 (1948). Judicial inquiry into the President’s detention

decisions, which are among his congressionally conferred war

powers, thus raises grave concerns about encroachment on the

President’s authority. See Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

Boumediene recognized this tension and concluded that,

at Guantanamo, separation-of-powers considerations weigh in

favor of extending the Suspension Clause beyond the

sovereign borders of the United States. Boumediene, 553 U.S.

at 796–98. But Guantanamo does not lie in a theater of war; it

is far removed from the conflicts which produced its inmates.

Id. at 770. Our forces at Bagram, by contrast, are actively

38

engaged in a war against a determined enemy. Like the

Supreme Court, we think this is a critical distinction. See id.

(“[I]f the detention facility were located in an active theater of

war, arguments that issuing the writ would be impracticable

or anomalous would have more weight.” (quotation marks

omitted)). Detention decisions made at Bagram are

inextricably a part of the war in Afghanistan. Reviewing

those decisions would intrude upon the President’s war

powers in a way that reviewing Guantanamo detentions does

not. For that reason, the third factor weighs “overwhelmingly

in favor of the position of the United States.” Al Maqaleh II,

605 F.3d at 97. We take exception, then, to the Appellants’

accusation that we are abandoning our post. To the contrary,

respect for the separation of powers impels us to stay our

hand.

IV

The Appellants once again ask us to consider the

President’s purpose in detaining them at Bagram. Their

argument, given its most generous construction, proceeds as

follows: if the President has a choice to detain an alien at a

location to which the writ runs, 15 but instead chooses to detain

the alien at Bagram (or some other foreign locale) because the

writ does not reach there, he has engaged in impermissible

“manipulation” which weighs in favor of extending the

Suspension Clause to the site of detention. In Al Maqaleh II,

although noting that the Supreme Court’s three factors may

15

We note that there is little reason to question the President’s

choice as a matter of common sense. The four Appellants who

allege a location of capture all allege capture in Asia, including

Pakistan. On its face, the President’s choice to detain in central

Asia aliens captured in that area of the world instead of transporting

them across the globe hardly arouses suspicion.

39

not be “exhaustive” and that evasion “might constitute an

additional factor,” we nevertheless rejected their argument for

two reasons. Al Maqaleh II, 605 F.3d at 98, 99. We first

concluded that the petitioners’ concern was “speculation” and

not “a reality.” Id. at 98. We also found utterly incredible the

suggestion that the President, who detained the petitioners at

Bagram well in advance of the 2008 Boumediene decision,

could have “predict[ed] the Boumediene decision long before

it came down” and made his detention decisions on the basis

of that prediction. Id. at 99.

In these appeals, however, the Appellants claim that their

argument is no longer naked speculation but is supported by

evidence that the President chose to detain them at Bagram in

order to evade habeas review. First, relying on two

conclusory declarations from former Executive Branch

officials, they contend that the United States originally chose

Guantanamo and Bagram as detention sites in part to avoid

judicial review. Second, relying primarily on news reports,

they allege that transfers from Bagram to Guantanamo

declined while transfers to Bagram from Guantanamo

increased after Rasul v. Bush, 542 U.S. 466 (2004) (holding

that federal courts have statutory habeas jurisdiction over

petitions filed by Guantanamo detainees), demonstrating that

the Government detains persons at Bagram in order to avoid

habeas review. Finally, relying on a declaration from an

unrelated case, the Appellants allege that officials within the

Department of Justice discussed detainee transfers and habeas

jurisdiction before Rasul issued, indicating that the Executive

Branch was “deliberating the issues of prisoner transfer and

habeas jurisdiction” prior to Boumediene. al-Maqaleh Br. 45.

We previously expressed our “doubt that [the alleged

manipulation] goes to either the second or third of the

Supreme Court’s enumerated factors.” Al Maqaleh II, 605

F.3d at 98. Today we hold that it does not. The Appellants

40

apparently agree and, seizing on the Supreme Court’s

statement that “at least three factors are relevant in

determining the reach of the Suspension Clause,”

Boumediene, 553 U.S. at 766 (emphasis added), call on us to

make manipulation an “additional factor,” al-Maqaleh Br. 41.

Before deciding this question, we must clearly identify the

species of alleged manipulation. The Appellants do not allege

that they were ever within territory to which the Suspension

Clause runs before being removed from that territory.

Instead, they allege that the United States captured them

beyond the Suspension Clause’s reach and then detained them

beyond it. They do not argue that the United States stripped

them of a right they previously possessed but instead that it

denied them the opportunity to acquire a right.

We decline the Appellants’ request to create a new factor.

Assuming we have authority to create additional factors, these

cases are hardly the ones in which to do it. 16 The Appellants

claim that their evidence moves their claims from speculation

16

When considering whether to create new factors at all,

caution must be our watchword. Boumediene marked the first time

in our constitutional history that aliens held outside the sovereign

territory of the United States were accorded any constitutional

protection. Boumediene, 553 U.S. at 770. In light of that fact, we

cannot read the Court’s statement that “at least three factors are

relevant in determining the reach of the Suspension Clause” as an

invitation for inferior-court innovation. As a novel constitutional

development, we are loath to expand Boumediene’s reach without

specific guidance from the Supreme Court, particularly where

expansion would carry us further into the realm of war and foreign

policy. Restraint is also appropriate here because the evasion

concern was brought to the Supreme Court’s attention in

Boumediene but the Court declined to consider it as a factor. See

Br. Amicus Curiae of the Am. Bar Ass’n in Support of Pet’rs,

Boumediene v. Bush, 553 U.S. 723 (2008), 2007 WL 2456942.

41

to reality. But the line they propose between the two is an

illusion. Their allegations and supporting evidence suggest, at

most, that the President might have considered at some point

in time the reach of the writ as one factor among others in his

decision to detain abroad (not necessarily at Bagram) certain

unidentified detainees. They do not allege, nor do they have

evidence suggesting, that any official ever considered the

reach of the writ in deciding where to detain them. Any alien

detained abroad could rely on the same unparticularized

allegations and evidence to argue for the extension of the

Suspension Clause. 17 If that is all a detainee need do, we

perceive no identifiable limitation on the extraterritorial reach

of our constitutional habeas jurisdiction. Reduced to its core,

the Appellants’ argument becomes an appeal for universal

extraterritorial application of the Suspension Clause. We

again reject any argument tending toward this result. “If it

were the Supreme Court’s intention to declare such a

sweeping application, it would surely have said so.” Al

Maqaleh II, 605 F.3d at 95. 18

17

Indeed, the purported effect of potential habeas jurisdiction

on the President’s detention decisions was debated even before the

Supreme Court’s Boumediene decision. See Al Maqaleh III, 899 F.

Supp. 2d at 24 (noting that assertions of evasion were “well known”

before Al Maqaleh II); see also Joshua L. Dratel, The Legal

Narrative, in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB

xxi–xxii (2005) (pre-Boumediene discussion of Justice Department

memoranda considering effect of executive concern about habeas

jurisdiction on detention policy).

18

Because the Appellants have provided no “specific

indication” that discovery might produce any particularized

evidence of evasion—and effectively concede the existence of non-

evasive reasons for detaining them at Bagram—we conclude that

the district court’s denial of jurisdictional discovery on this

42

Our holding should not be read, however, to suggest that

evasion of habeas review never raises constitutional hackles.

An allegation that an alien detained outside our habeas

jurisdiction was either captured or previously detained within

our habeas jurisdiction would be far more likely to trigger our

Suspension Clause jurisdiction than the allegations here.

“[A]t the absolute minimum, the Suspension Clause protects

the writ ‘as it existed in 1789.’ ” St. Cyr, 533 U.S. at 301

(quoting Felker v. Turpin, 518 U.S. 651, 663–64 (1996)).

English common law fundamentally informs our

understanding of the substantive content of the writ as of

1789. See Boumediene, 553 U.S. at 742, 746–52; McNally v.

Hill, 293 U.S. 131, 136–38 (1934). Of particular importance

is Parliament’s codification of the common law writ in the

Habeas Corpus Act of 1679, 31 Car. 2, c.2 (Eng.). See

Boumediene, 552 U.S. at 742 (explaining influence of Act on

development of writ in the colonies); id.at 845 (Scalia, J.,

dissenting) (same); THE FEDERALIST NO. 83, at 499

(Alexander Hamilton) (Clinton Rossiter ed. 1961); Dallin H.

Oaks, Habeas Corpus in the States—1776–1865, 32 U. CHI.

L. REV. 243, 252 (1965). Subject to certain exceptions,

section 12 of the Habeas Corpus Act forbad the transportation

of any “inhabitant or resi[de]nt” of England or Wales as a

prisoner to “places beyond the seas.” 31 Car. 2, c. 2, § 12

(Eng.); see also Boumediene, 553 U.S. at 845–46 (Scalia, J.,

dissenting); Kiyemba v. Obama (Kiyemba II), 561 F.3d 509,

523 (D.C. Cir. 2009) (Griffith, J., concurring in judgment in

part and dissenting in part); Abdah v. Obama, 630 F.3d 1047,

1049–51 (D.C. Cir. 2011) (Griffith, J., dissenting from denial

of initial hearing en banc).

question was not an abuse of discretion. Cheyenne Arapaho Tribes

of Okla., 558 F.3d at 596.

43

Were a detainee to allege capture by the United States

within our constitutional habeas jurisdiction followed by

transfer to U.S. custody in territory beyond it, his entreaty for

the protection of the Suspension Clause would be much more

compelling than the Appellants’. Cf. Kiyemba II, 561 F.3d at

513 (“[A] potential transfer out of the jurisdiction of the court

is a proper subject of statutory habeas relief . . . .”). A

contrary rule risks rendering the Suspension Clause nugatory

because the President could defeat it at his pleasure by

transporting prisoners to U.S. detention facilities outside the

United States and beyond the reach of our jurisdiction. Here,

however, the Appellants were captured in places to which the

Suspension Clause unquestionably does not run and therefore

never secured a Suspension Clause right requiring our

protection. This form of evasion does not implicate the

concerns that led Parliament to ban the spiriting away of

prisoners beyond the reach of the writ.

Because the Suspension Clause does not run to Bagram,

section 7 of the 2006 MCA does not effect an unconstitutional

suspension of the writ. We therefore affirm the judgments of

the district court in Al Maqaleh III (Nos. 12-5404, 12-5401

and 12-5399) and Amanatullah (No. 12-5407). We remand

Hamidullah (No. 12-5410) for further proceedings consistent

with this opinion.

So ordered.