U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E D I S T R I C T O F C O L U M B I A F ADI AL MAQALEH, et al., P etitioner s , v. Civil Action No. 06-1669 ROBERT GATES, et al., Respondents.

HAJI WAZIR , et al., P etitioner s, v. Civil Action No. 06-1697 ROBERT GATES, et al., Respondents.

AMIN A L BAKRI, e t al., P etitioner s, v. Civil Action No. 08-1307 BARACK

H. OBAMA, et al., Respondents.

REDHA AL-NAJA R, et al., P etitioner s, v. Civil Action No. 08-2143 ROBERT GATES, et al., Respondents.

M E M O R A N D U M O P I N I O N Petitioners in these consolidated c ases ha ve filed a J oint Moti on to Amend Petitions for Writ of Habea s Corpus. They contend that ther e is new e videncethat bear s on this C ourt' sjurisdiction over their pe titions challeng ing the ir continued de tention by the United States at Ba g ram Air B ase in Af

g hanistan, and tha t amendment to permit consideration of that e vidence should be " fre ely

g iven" under F ed. R. Civ. P. 15(a)(2). See Foman v. D avis, 371 U.S. 178, 182 (1962). Responde nts oppose the attempt to amend the pe titions , challeng ing theclaim that there is "ne w" evidenc e that undermines the ea rlier de cision of the D.C. Circuit that the petitions should be dismissed, see Maqa leh v. Gate s, 605 F.3d 84 (D .C. Cir. 2010), and ar g uing that amendment would ther efor e be f utile. Following the D.C. Circuit' s decision, petitioners soug ht rehe aring based, in pa rt, on additional evidenc e not pre viouslyin the rec ord. The Court of Appea ls denied re hear

ing, but noted that the denia l was without prejudice to petitioners' "a bilityto present this evidenc e to the district court in the first instance ." Ma qaleh v. Gates, No. 09-5265 ( D.C. Cir. J uly 23, 2010). Petitioners now seek to a mend their ha beas pe titions with what they assert is newly

discovere d evidenc e that under cuts the basis of the D .C. Circuit's prior de cision finding no jurisdiction over their petitions. Gene rally , the additional evidenc e that petitioners now pr offe r is the following : operational and substantive cha ng es to the U.S. detention sy stem at Ba g ram Air B ase, inc luding the commenc ement of c ivilian criminal trials for Af g han nationals ther e; movement and rete ntion of detainee s in Afg hanistan alleg edly ref lecting Ex ecutive B ranc h eff orts to avoid judicial scrutiny

of dete ntion practice s and policies; and c urre nt specifics of plans to continue to hold non-Afg han deta inees in a ne w fa cility at B ag ram in an attempt to evade a ny obligations befor e the c ourts. Petitioners claim that this purportedly new e vidence war

rants re examination of the jurisdictional ana ly sis undertake n in this case by this Court and then by

the D.C. Circuit,

-2-apply ing B oumediene v. B ush, 553 U.S. 723 (2008). Unde r the princ iple that leave to amend

under Rule 15( a)( 2) should be fr eely g iven, see Foman, 371 U .S. at 182; May le v. Fe lix , 545 U.S. 644, 654 (2005) (noting application of Rule 15 to habe as petitions under Ha beas Corpus Rule 11 and F ed. R. Civ. P. 81(a)(2)) , petitioners urg e this Court to permit them to file amended habea s petitions or, alternatively and at a minimum , allow jurisdictional discovery to proce ed. Respondents counter

that the assertions on which petitioners rely are not fac tually

based and any evidenc e they

proff er is not in fac t new. Eng ag ing in a detailed e x amination of petitioners' proposed a mended ha beas pe titions and their le g al ana ly sis, respondents urg e the Court to deny

the motion to amend as futile under Foman v. D avis bec ause the amende d petitions would not survive a motion to di smiss. To a larg e extent, respondents' arg ument is based on a

close a naly sis of the proff ere d amende d petitions under the standa rd established by the Supreme Court in B oumediene a nd previously applied by

the D.C. Circuit in this case. The pa rties' filings r evea l vastly

differ ent assessments of the additional evidenc e on which petitioners' motion is based, and of the impac t of that evidenc e. To be sure, not all of the evidenc e petitioners c hara cter ize as "ne w" rea lly repr esents any

chang e of r elevance w ith respec t to the g overnme nt's ha ndling of detainee s at Ba g ram. And r espondents have a fa ir point that

rec ent deve lopments as borne out by the fa cts may

not significa ntly

alter a proper assessment of the B oumediene f

actor s as applied by

the D.C. Circuit. But ultimately

the Court conclude s that the examination respondents urg e, and the assessment of pe titioners' " new" evidenc e that the law (and a rg uably the D.C. Circuit' s J uly

23, 2010 order ) re quires, is best undertaken by permitting the reque sted amendme nts and then addre ssing the pe titions on their merits throug h the vehicle of a motion to dismis s filed by

-3-responde nts. The proff ere d evidenc e is extensive (and a rg uably evolving ) and, in some way s, its impact under

the B oumediene/Ma qaleh f actor s is subtl e. While the Court has some doubts about the conse quence of the a dditional evidence under tha t analytical fra mework, tha t issue is better explored throug h full consideration of the evidenc e and the parties' positions, rather than unde r the limited "futility " a

ppraisal in which it is now pre sented. Tha t will, moreover, be consistent with Rule 15's strong encour ag ement of a mendment -- if the fa cts prese nted may

enablerelief then amendme nt should be "f ree ly g iven" and a pla intiff should be permitted the opportunityto have the claims tested on their me rits. Foman, 371 U.S. at 182. There fore , the Court will gr ant petitioners' joint mot ion to amend their ha beas c orpus petitions. The Court expects, however , that g ranting the motion will enable more c are ful scrutiny of the a mended pe titions throug h a motion to dism iss filed by responde nts, and throug h firm applica tion of the ana ly tical fra mework e stablished by the Supreme Court in B oumediene and applied by

the D.C. Circuit in Maqaleh. At this time, the Court will deny petitioners' alternative reque st for jurisdictional discovery . I f petitioners c ontinue to believe that suc h discovery is neede d, and wa

rranted under

the law, in re sponse to a re quest to dismis s their amende d habea s corpus pe titions , they can a ssert that position in their oppositi on. A sepa rate order has bee n filed with this Memorandum Opinion.

/s/ J OHN D. B ATES United States District J udg e
Dated: F ebrua

ry 15, 2011

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