Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 1 of 14 MOTION FOR LEAVE TO FILE RESPONSE TO SUPPLEMENTAL MATERIALS FILED ON SEPTEMBER 24, 2012 ATTACHMENT 1 [Proposed] Response Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 2 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FADI AL-MAQALEH, et al., Petitioners, v. LEON E. PANETTA, et al., Respondents. AMIN AL-BAKRI, et al., Petitioners, v. BARACK OBAMA, et al., Respondents. REDHA AL-NAJAR, et al., Petitioners, v. LEON E. PANETTA, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:06-CV-01669 (JDB) Civil Action No. 1:08-CV-01307 (JDB) Civil Action No. 1:08-CV-02143 (JDB) RESPONSE TO PETITIONERS' SUPPLEMENTAL MATERIALS FILED ON SEPTEMBER 24, 2012 Respondents hereby respond to the declarations and corresponding exhibits filed by Petitioners on September 24, 2012 (ECF No. 83) to supplement their opposition to the government's motion to dismiss. The submission purportedly sets forth "factual developments" that "directly bear[]" on the motion to dismiss but were only "very recently discovered" by Petitioners. See Petrs' Notice of Intent to File Declaration, ECF No. 81 (filed Aug. 17, 2012). The submission, however, contains no new facts that are material; further, at least two of the Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 3 of 14 declarations could have been obtained long ago. To the extent anything in the submission is new, it has no bearing on the jurisdictional issue before this Court. As discussed below, two of the declarations were submitted by former government employees who are not strangers to this case. Rather than offering information based on their personal knowledge, the two declarants speculate about matters that Petitioners have previously speculated about, including the United States' alleged policy of evading judicial review. Petitioners have also submitted a letter apparently from the Chief of Staff of the President of Afghanistan, painting a negative picture of the United States' detention of third-country nationals at Bagram. The letter, however, gives no indication that this individual was authorized to speak on behalf of the Government of Afghanistan on this issue. It is notable, in this regard, that this individual's assertions are contradicted by the public statements of Afghan officials. As for the declaration detailing counsel's unsuccessful attempt to participate in Petitioners' Detainee Review Board ("DRB") proceedings and also meet privately with Petitioners, the declaration does not call into question the integrity of the DRB process. Although counsel asserts that the Department of Defense ("DoD") arbitrarily denied counsel's participation in Petitioners' recent DRB proceedings, the attached declaration from a DoD official indicates that, consistent with DoD policy, DoD had granted counsel permission to participate telephonically as witnesses, as it has done in the past, but the detainees did not want counsel's participation by telephone. In sum, Petitioners' most recent submission offers no new facts that would change the Court of Appeals' prior conclusion that "the Suspension Clause does not extend to aliens held in Executive detention in the Bagram detention facility in the Afghan theater of war." Maqaleh v. Gates, 605 F.3d 84, 99 (D.C. Cir. 2010). 2 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 4 of 14 ARGUMENT I. The Declarations of Former Government Employees Colonel Lawrence Wilkerson and Mr. Glenn Carle Do Not Support Petitioners' Evasion-of-Judicial-Review Argument. Petitioners have submitted the declaration of Colonel Lawrence B. Wilkerson (Ret.), former Chief of Staff to Secretary of State Colin Powell from late 2002 to 2005, as well as the declaration of a former CIA employee, Mr. Glenn Carle. Petitioners argue that these declarations evidence "Respondents' use of Bagram for the purpose of evading judicial scrutiny of Petitioners' [detention]." See Decl. of Ramzi Kassem, dated Sept. 24, 2012, ?? 4-5. Although both declarations were executed recently, in September 2012, neither of these declarants is new to Petitioners, and Petitioners have offered no explanation for why they waited sixteen months after Respondents moved to dismiss the amended petitions and two months after this Court heard argument on the motion before submitting the declarations. In fact, as early as July 2010, when Petitioners sought panel rehearing in the Court of Appeals, they cited Colonel Wilkerson's prior declaration, prepared in the Guantanamo habeas litigation, asserting that, by late August 2002, he understood that "the deliberate choice to send detainees to Guant?namo was an attempt to place them outside the jurisdiction of the U.S. legal system." Joint Pet. for Panel Rehearing, Maqaleh v. Gates, Nos. 09-5265, 09-5266, 09-5267, Doc# 1253544 (filed July 6, 2010), at 13 n.15 (quoting Hamad v. Bush, Case No. 05-CV-1009 (D.D.C.), Decl. of Colonel Lawrence B. Wilkerson, ? 9c). Thereafter, Petitioners cited that same statement, both in their amended habeas petitions and in their opposition to the motion to dismiss, for the proposition that the United States has a policy of evading judicial review. See Maqaleh 2d Am. Pet. ? 72; Petrs' Opp'n to Mot. to Dismiss, ECF No. 65 (filed June 24, 2011), at 32 n. 20. 3 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 5 of 14 Counsel further discussed it during the July 16, 2012 hearing, as did this Court. Mot. to Dismiss Hearing Tr. at 62, 85. Similarly, Mr. Glenn Carle is not new to Petitioners. Nine months before this Court heard arguments on the motion to dismiss, Petitioners had submitted excerpts of Mr. Carle's book, as well as articles about him and his book, to supplement their opposition to the motion to dismiss. See Petrs' Supp. Decl. in Opp'n to Mot. to Dismiss, attachments 4-8, ECF Nos. 71-2 and 71-3 (filed Oct. 11, 2011). Petitioners do not explain why they waited until now to offer Mr. Carle's declaration. More importantly, the Wilkerson and Carle declarations only speculate about the United States' detention policy. As noted, Colonel Wilkerson's July 2010 declaration speculated that the United States had sent detainees to Guantanamo in an attempt to place them outside the jurisdiction of the U.S. legal system. He now expands that assertion to include Bagram. He states that by late August 2002, he "understood that the deliberate choice to transfer detainees captured in third countries to Guantanamo and Bagram, along with the subsequent and continuing decision to keep those detainees there, was often motivated in significant part by a desire to place detainees outside the jurisdiction of any legal system--in particular United States Court." Wilkerson Decl., ? 12. Mr. Carle's declaration states that he had the same understanding by the fall of 2002. Carle Decl., ? 12. He speculates that, if Petitioners were transferred to Bagram between 2003 and 2005, the initial decision to take them to Bagram, as well as the continuing decisions to detain them there, "were likely motivated by a desire to evade judicial review of their detention . . . ." Id. ? 14. Colonel Wilkerson's speculation is slightly different. "It is likely," according to Colonel Wilkerson, that the initial decision to transfer Petitioners to Bagram "was partly motivated by a desire for actionable intelligence." Wilkerson Decl., ? 14. As for the 4 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 6 of 14 subsequent decisions to keep Petitioners at Bagram, however, Colonel Wilkerson claims that those decisions "were likely motivated by a desire to evade judicial review of their detention." Id. Although both declarants describe the government positions they held, including meetings they attended or internal government discussions to which they were privy, neither declarant claims to have personal knowledge regarding Petitioners' detention. Nor does either profess to have any actual knowledge from his prior government position about the United States' alleged policy of evading judicial review. Cf. Fed. R. Civ. P. 56(c)(1)(B)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.") (emphasis added). Instead, both say that their assertions are based on their "personal observations and experiences" as former government employees and on "the facts and circumstances alleged by the Petitioners." Carle Decl., ? 6; Wilkerson Decl., ? 6. In fact, even as Colonel Wilkerson describes purported internal State Department discussions relating to detainees captured in this armed conflict, none is about the alleged policy of evasion. See Wilkerson Decl., ?? 6-10, 16. It is evident that the declarants' speculations are based on what is widely known, which is that the United States began litigating the reach of habeas jurisdiction almost as soon as detainees arrived in Guantanamo and continued to do so until the Supreme Court's decision in Boumediene v. Bush, 553 U.S. 723 (2008). Both declarants aver that they came to understand the United States' alleged policy of evading judicial review by "late-August 2002" or "the fall of 2002," see Wilkerson Decl., ?? 11-12; Carle Decl., ? 12, which was approximately the time when Judge Coleen Kollar-Kotelly of this Court issued the first decisions on the Guantanamo habeas jurisdictional question. See Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002); Habib v. Bush, 02-CV-1130 (CKK), Order dated Aug. 8, 2002. Thereafter, the United States continued to 5 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 7 of 14 litigate the issue of habeas jurisdiction, including defending challenges to those parts of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, tit. X, 119 Stat. 2680 (10 U.S.C. ? 801 note), and the Military Commissions Act of 2006, Pub. L. No. 109-366, that sought to define the jurisdictional reach of the federal habeas statute. It is evident that the declarants' views about the United States' alleged policy of evading judicial review were extrapolated from this complicated habeas litigation history. See Carle Decl., ? 13 ("Over my tenure at the CIA, as I observed how legal challenges to the detention of prisoners played out in the media and courts, I came to understand that U.S. officials chose where to send and where to keep prisoners in the GWOT based in part on the expectation that attorneys for the U.S. government would resist legal challenges to such detentions by arguing that federal court jurisdiction did not extend beyond the borders of the United States.") (emphasis added); Wilkerson Decl., ? 13 (stating that officials "often chose where to send and where to keep [detainees] in the GWOT based on the expectation that attorneys for the U.S. government would resist legal challenges to such detentions by arguing that federal court jurisdiction did not extend beyond the borders of the United States"). The fallacy of Petitioners' argument is actually underscored by the Wilkerson and Carle declarations, which appear to lead to the conclusion that the only potential place of detention that would have avoided any later claim of evasion of judicial review was the United States and its territories. Read together, the declarations speculate that between 2003 and 2005, the United States was trying to "place detainees outside the jurisdiction of any legal system - in particular United States courts," by transferring detainees "to Guantanamo and Bagram" and by continuing to detain them there. See Wilkerson Decl., ?? 12, 14; Carle Decl., ?? 12, 14. In other words, according to Petitioners, the United States can be said to be trying to evade judicial review when it does not transfer a detainee to a place where either habeas applies or the government would not "resist legal challenges to such detentions." Wilkerson Decl., ?13; Carle Decl., ? 13. Under that 6 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 8 of 14 logic, the only such potential choice for detention locations between 2003 and 2005, the relevant time period that these declarations cover, was the United States and its territories, never mind that the then Bagram Theater Internment Facility was the detention facility for the Afghan theater of war. That is hardly the type of "limiting principle" that would distinguish Bagram from any other military installation. As the Court of Appeals previously found, Petitioners' failure to articulate a limiting principle defeats their claim of habeas jurisdiction as their argument essentially would permit world-wide application of the Suspension Clause, which is an untenable interpretation of Boumediene. See Maqaleh, 605 F.3d at 95. Nothing has changed as to that Court of Appeals finding. Assuming that Petitioners intend these sweeping declarations to support a narrower argument - namely that, between 2003 and 2005, the United States attempted to evade judicial review by not transferring Petitioners to Guantanamo and thus that the Suspension Clause extends at least to them - the Court of Appeals has already rejected that precise argument. As the Court of Appeals said in addressing the argument that "the United States deliberately confined [Petitioners] in the theater of war rather than at, for example, Guantanamo": To have made such a deliberate decision to "turn off the Constitution" would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history [regarding Guantanamo habeas litigation] set forth above and predict the Boumediene decision long before it came down. Id. at 98. Nothing has changed about that observation. Moreover, as Respondents have previously demonstrated, the failure to provide a detainee with habeas rights when the detainee was not apprehended (or ever detained) on U.S. soil - and thus, never had those rights in the first place - is not the type of evasion contemplated by the Supreme Court in Boumediene. See Resp. Reply at 18, ECF No. 66 (filed July 18, 2011). Boumediene discussed the idea of manipulation only in the context of the Court's analysis of sovereignty, and Court noted its view that the 7 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 9 of 14 government had attempted to treat Guantanamo, which has a unique history as the functional equivalent of an unincorporated territory of the United States, as the equivalent of other overseas military bases. See Boumediene, 553 U.S. at 763-65. Bagram, of course, has no such unique history. In any event, the flow of detainee transfers to Guantanamo between 2003 and 2005 provides no support for the proposition that the United States held Petitioners at Bagram, as opposed to transferring them to Guantanamo, in order to evade judicial review. The risk that habeas jurisdiction would extend to Guantanamo was clearly present ever since the United States began litigating the first habeas petition filed in February of 2002. See Rasul, 215 F. Supp. 2d at 57. As the United States continued to litigate the jurisdictional issue, it also continued to transfer detainees to Guantanamo for purposes of exploiting actionable intelligence, among other things. Even during the brief period between June 2004, when the Supreme Court held in Rasul v. Bush, 542 U.S. 466 (2004), that statutory habeas extended to Guantanamo, and October 2005, when Congress amended the habeas statute to preclude its extension to Guantanamo by enacting the Detainee Treatment Act, the United States continued to transfer detainees to Guantanamo. See DoD Press Release No. 935-04 (Sept. 22, 2004) (announcing the transfer of 10 detainees from Afghanistan to Guantanamo, noting that "the decision to transfer a detainee to Guantanamo is based on their further intelligence value to the United States and whether they continue to pose a threat to the United States") (a copy is attached as Exhibit 1). Of course, by sometime in 2006, President Bush had publicly expressed a desire to close the detention facilities at Guantanamo. 1 Nothing indicates that this decision was motivated by a desire to prevent detainees from obtaining habeas rights by being transferred to Guantanamo. Few detainees arrived at Guantanamo between 2006 and June 2008, when Boumediene held that constitutional habeas extends to 1 See Bush Speaks of Closing Guantanamo Prison, New York Times (May 8, 2006) (available at http://www.nytimes.com/2006/05/08/washington/08bush.html?fta=y). 8 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 10 of 14 Guantanamo. See DoD Press Release No. 860-06 (Sept. 6, 2006) (announcing the transfer of 14 high value detainees to military custody at Guantanamo Bay); DoD press release Nos. 206-08 (March 14, 2008), 779-07 (June 22, 2007), 1110-07 (Sept. 12, 2007) (each announcing the transfer of one detainee to Guantanamo) (attached as Exhibit 2). But the fact remains that throughout the time period when the United States was litigating the issue of habeas jurisdiction, it transferred detainees to Guantanamo both when statutory habeas applied and when it did not. This history hardly supports Colonel Wilkerson's and Mr. Carle's speculation that the United States deliberately chose not to transfer Petitioners to Guantanamo in order to evade judicial review. Nor does the detention of individuals in a designated theater detention facility, such as the then Bagram Theater Internment Facility, indicate a policy of evading judicial review. II. Letter Addressed to Counsel from President Karzai's Chief of Staff Petitioners also submitted a letter their counsel solicited from Abdul Karim Khrurram, Chief of Staff to the President of Afghanistan. See Ex. 1 to Kassem Decl. According to Petitioners, the letter "confirms the Afghan government's position regarding this Court's possible exercise of jurisdiction over the above-captioned cases," and "informs this Court's assessment" of the practical obstacles of extending the writ to Bagram. Kassem Decl. ? 3. This letter, however, does no such thing. First, it is a private letter addressed to Petitioners' counsel, which is obviously of an entirely different nature than government-to-government communications that are often sensitive and frequently against the backdrop of delicate relationships between sovereigns. Second, the letter gives no indication that Mr. Khrurram is authorized to speak on behalf of the Government of Afghanistan on such matters. In fact, simply as a point of contrast, while Mr. Khrurram paints a picture of Afghanistan being kept in the dark about foreign nationals detained at Bagram and further proclaims that Afghanistan has "no desire for [such detainees] to remain on [Afghan] territory," Ex. 1 to Kassem Decl., Afghan officials' public statements actually portray 9 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 11 of 14 the two governments as having a cooperative relationship concerning non-Afghan detainees held at Bagram. The Afghan Foreign Minister recently was quoted as saying that, "[w]hen it comes to third-country nationals, that will be a matter we decide with our international partners at some point down the road." 2 And General Ghulam Farouk, the Afghan official in charge of the Afghan-run portion of the Detention Facility in Parwan, recently was quoted as saying that due to delicate relations with a neighboring country, the best course for now is for the United States to hold the non-Afghan detainees. 3 Again, as the Court of Appeals has observed: The United States holds the detainees pursuant to a cooperative arrangement with Afghanistan on territory as to which Afghanistan is sovereign. While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that relationship, neither can we say with certainty what the reaction of the Afghanistan government would be. Maqaleh, 605 F.3d at 99. Mr. Khrurram's letter sheds no new light on the practical obstacles of extending the writ to Petitioners, and the Court of Appeals' observation remains unchanged as to the potential disruption to the relationship between the United States and Afghanistan if habeas were extended to Bagram. III. Declaration of Ms. Tina Foster Petitioners' last "new factual development" is counsel's declaration describing counsel's attempt to participate as witnesses in the Detainee Review Board ("DRB") proceedings of Petitioners and also meet with their clients privately at Bagram. The declaration states that counsel acted at the suggestion of the Personal Representative assigned to Petitioners and that DoD ultimately denied counsel's requests only after counsel were already en route to Kabul on September 16, 2012. Decl. of Tina M. Foster, dated Sept. 23, 2012, ?? 2-4, 19. Petitioners 2 See U.S. to Retain Role as Jailer in Afghanistan, the New York Times, Sept. 5, 2012, (http://www.nytimes.com/2012/09/06/world/asia/us-will-hold-part-of-afghan-prison-after-hando ver.html?pagewanted=all&_r=0) (a copy is attached as Exhibit 3). 3 Id. 10 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 12 of 14 apparently are offering this declaration to show that DoD arbitrarily denied counsel's participation as witnesses despite their availability to attend in person or to participate by telephone. See id. ? 21. To the extent Petitioners seek to challenge the integrity of the DRB process or show that the DRB is an arbitrary process conducted at "the U.S. government's whim," id., they cannot succeed. First, the declaration is factually inaccurate. As the attached declaration of DoD official, Robert F. Huard indicates, consistent with DoD's past policy of allowing Ms. Foster and Mr. Kassem to participate as witnesses by telephone in Petitioners' DRB proceedings, DoD granted them the same permission this time, while also declining to allow counsel to participate in person. See Decl. of Robert F. Huard, Office of the Secretary of Defense, Rule of Law and Detainee Policy, dated Oct. 11, 2012 (attached as Exhibit 4), ? 3; see also Foster Decl., Ex. 12, email dated Sept. 16, 2012 from the Officer in Charge of the Office of Detainee Assistance ("Pls get with CPT [redacted] to arrange to be a telephone witness if you so choose and to send her any written exhibits."). Counsel ultimately did not participate even by telephone because, once Petitioners learned that their counsel could not participate in person in their DRB proceedings, they decided to not to participate in the proceedings and also informed DoD personnel that they did not want their counsel to participate either. See Huard Decl. ? 4. Contrary to the impression given in counsel's declaration, DoD informed counsel why their telephonic participation was no longer requested. Id. While it was unfortunate that DoD's denial of counsel's request to participate in person came when counsel were already en route to Afghanistan on September 16, 2012, counsel certainly knew the risk that their request to be on the military base could be denied, whether it was to participate in the DRB proceedings in person or to meet with their clients. DoD has consistently denied such requests in the past. In fact, two days earlier, on September 14, 2012, 11 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 13 of 14 undersigned counsel notified Ms. Foster and Mr. Kassem of DoD's denial of their most recent request to meet privately with Petitioners and two other detainee clients. 4 Finally, it is notable that counsel also planned to travel to Afghanistan for other purposes. According to Petitioners' August 31, 2012 response to this Court's order that they provide a short summary of the new facts they claimed to have recently discovered, Petitioners indicated that, while they could not then provide such a summary, "two members of Petitioners' legal team will travel to Afghanistan from September 17 to September 23, 2012 to conduct in person interviews, complete any investigatory follow-up, and secure declarations." Petrs' Response to Court's Order of Aug. 28, 2012, ECF No. 82 (filed Aug. 31, 2012). Given this, the suggestion that counsel's travel to Afghanistan was made based solely on their potential ability to meet with their clients or to participate in the DRB proceedings in person is simply not supportable. At bottom, Ms. Foster's declaration, along with some 20 pages of emails attached to the declaration, is clearly not the type of "new facts" that "directly bear [] on Respondents' motion to dismiss." CONCLUSION For the foregoing reasons, and the reasons Respondents previously provided in their motion to dismiss, this Court should dismiss the amended habeas petitions with prejudice. 4 DoD had forwarded undersigned counsel a copy of a letter dated September 3, 2012 from Ms. Foster for response. See Huard Decl., ? 3. The letter was addressed to the Commander of Task Force Protector and a commander responsible for security at the Detention Facility in Parwan. Counsel requested in the letter to meet privately with a total of five non-Afghan detainees when counsel would be on base to participate in DRB proceedings. See Exhibit A to Huard Decl. Although it was not apparent from the letter, counsel later explained to undersigned counsel that she drafted the letter at the suggestion of Petitioners' Personal Representative and that its purpose was to request permission to meet with their detainee clients so that the detainee clients could help counsel prepare counsel's testimony as witnesses at the DRB proceedings. See E-mail communication between Ms. Foster and undersigned counsel (attached as Exhibit 5). Whatever the purpose of the request for counsel access, and however counsel might characterize their role vis-?-vis their detainee clients, DoD's denial of the request is not arbitrary. Detainees held at Bagram have no right to counsel, and DoD has not permitted assistance of counsel at DRB proceedings, which are internal administrative proceedings. 12 Case 1:06-cv-01669-UNA Document 84-2 Filed 10/11/12 Page 14 of 14 Dated: October 11, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General JOHN R. TYLER Assistant Branch Director /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 20530 Tel: (202) 514-3716 Attorneys for Respondents 13