Appeals from the United States District Court for the District of Columbia (No. 1:06-cv-01669-JDB).
The opinion of the court was delivered by: Sentelle, Chief Judge
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, and EDWARDS, Senior Circuit Judge.
Three detainees at Bagram Air Force Base in Afghanistan petitioned the district court for habeas corpus relief from their confinement by the United States military.*fn1 Appellants (collectively "the United States" or "the government") moved to dismiss for lack of jurisdiction based on § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) ("MCA"). The district court agreed with the United States that § 7(a) of the MCA purported to deprive the court of jurisdiction, but held that this section could not constitutionally be applied to deprive the court of jurisdiction under the Supreme Court's test articulated in Boumediene v. Bush, 128 S.Ct. 2229 (2008). The court therefore denied the motion to dismiss but certified the three habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b). Pursuant to that certification, the government filed a petition to this court for interlocutory appeal. We granted the petition and now consider the jurisdictional question. Upon review, and applying the Supreme Court decision in Boumediene, we determine that the district court did not have jurisdiction to consider the petitions for habeas corpus. We therefore reverse the order of the district court and order that the petitions be dismissed.
All three petitioners are being held as unlawful enemy combatants at the Bagram Theater Internment Facility on the Bagram Airfield Military Base in Afghanistan.*fn2 Petitioner Fadi Al-Maqaleh is a Yemeni citizen who alleges he was taken into custody in 2003. While Al-Maqaleh's petition asserts "on information and belief" that he was captured beyond Afghan borders, a sworn declaration from Colonel James W. Gray, Commander of Detention Operations, states that Al-Maqaleh was captured in Zabul, Afghanistan. Redha Al-Najar is a Tunisian citizen who alleges he was captured in Pakistan in 2002. Amin Al-Bakri is a Yemeni citizen who alleges he was captured in Thailand in 2002. Both Al-Najar and Al-Bakri allege they were first held in some other unknown location before being moved to Bagram.
B. The Place of Confinement
Bagram Airfield Military Base is the largest military facility in Afghanistan occupied by United States and coalition forces. The United States entered into an "Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield" with the Islamic Republic of Afghanistan in 2006, which "consigns all facilities and land located at Bagram Airfield... owned by [Afghanistan,] or Parwan Province, or private individuals, or others, for use by the United States and coalition forces for military purposes." (Accommodation and Consignment Agreement for Lands and Facilities at Bagram Airfield Between the Islamic Republic of Afghanistan and the United States of America) (internal capitalization altered). The Agreement refers to Afghanistan as the "host nation" and the United States "as the lessee." The leasehold created by the agreement is to continue "until the United States or its successors determine that the premises are no longer required for its use." Id. (internal capitalization altered).
Afghanistan remains a theater of active military combat. The United States and coalition forces conduct "an ongoing military campaign against al Qaeda, the Taliban regime, and their affiliates and supporters in Afghanistan." These operations are conducted in part from Bagram Airfield. Bagram has been subject to repeated attacks from the Taliban and al Qaeda, including a March 2009 suicide bombing striking the gates of the facility, and Taliban rocket attacks in June of 2009 resulting in death and injury to United States service members and other personnel.
While the United States provides overall security to Bagram, numerous other nations have compounds on the base. Some of the other nations control access to their respective compounds. The troops of the other nations are present at Bagram both as part of the American-led military coalition in Afghanistan and as members of the International Security Assistance Force (ISAF) of the North Atlantic Treaty Organization. The mission of the ISAF is to support the Afghan government in the maintenance of security in Afghanistan. See S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec. 20, 2001); S.C. Res. 1510, U.N. Doc. S/RES/1510 (Oct. 13, 2003); S.C. Res. 1833, U.N. Doc. S/RES/1833 (Sept. 22, 2008). According to the United States, as of February 1, 2010, approximately 38,000 non-United States troops were serving in Afghanistan as part of the ISAF, representing 42 other countries. See International Security Assistance Force, International Security Assistance Force and Afghan National Army Strength & Laydown, http://www.nato.int/isaf/docu/epub/pdf/placemat.pdf.
Appellees in this action, three detainees at Bagram, filed habeas petitions against the President of the United States and the Secretary of Defense in the district court. The government moved to dismiss for lack of jurisdiction, relying principally upon § 7(a) of the Military Commissions Act of 2006. The district court consolidated these three cases and a fourth case, not a part of these proceedings, for argument. After the change in presidential administrations on January 22, 2009, the court invited the government to express any change in its position on the jurisdictional question. The government informed the district court that it "adheres to its previously articulated position."
The district court, recognizing that the issue of whether the court had jurisdiction presented a controlling question of law as to which there were substantial grounds for difference of opinion, certified the question for interlocutory appeal under 28 U.S.C. § 1292(b). Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 54- 56 (D.D.C. 2009). We accepted the case for interlocutory review, In re Gates, No. 09-8004, 2009 U.S. App. LEXIS 17032 (D.C. Cir. July 30, 2009), bringing the jurisdictional issue before us in the present appeal.
While we will discuss specific points of law in more detail below, for a full understanding, we must first set forth some of the legal history underlying the controversy over the availability of the writ of habeas corpus and the constitutional protections it effectuates to noncitizens of the United States held beyond the sovereign territory of the United States. The Supreme Court first addressed this issue in Johnson v. Eisentrager, 339 U.S. 763 (1950). In Eisentrager 21 German nationals petitioned the district court for writs of habeas corpus.
The Eisentrager petitioners had been convicted by a military commission in China of "engaging in, permitting or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan." Id. at 766. Because, during that period, the United States and Germany were no longer at war, hostile acts against the United States by German citizens were violations of the law of war. Petitioners were captured in China, tried in China, and repatriated to Germany to serve their sentences in Landsberg Prison, a facility under the control of the United States as part of the Allied Powers' post-war occupation. Id. None ever entered the United States, nor were any held in the United States.
Petitioners sought habeas relief, alleging that their confinement was in violation of the Constitution and laws of the United States and the Geneva Convention. Id. at 767; see also Eisentrager v. Forrestal, 174 F.2d 961 (D.C. Cir. 1949). The district court held that under Ahrens v. Clark, 335 U.S. 188 (1948), statutory jurisdiction over habeas petitions did not extend to aliens who were neither confined nor convicted in the district of the court and whose custodians were beyond geographic boundaries of the district in which the court sat. The court dismissed the writ. The petitioners appealed. The Court of Appeals reversed the district court's judgment.
The Court of Appeals read Ahrens as having left open the governing questions of the controversy before it, and held that since "[t]he right to habeas corpus is an inherent common law right," Eisentrager v. Forrestal, 174 F.2d at 965, a jurisdictional statute could not deprive anyone of whatever would be the fundamental right to habeas corpus because of the provision in Article I of the Constitution that the "Federal Government cannot suspend the privilege, except when, in cases of rebellion or invasion, the public safety may so require." 174 F.2d at 965-66 (citing U.S. CONST. Art. I, § 9, cl. 2).
The court reasoned that as "Congress could not effectuate by omission that which it could not accomplish by affirmative action," if the existing jurisdictional act had the effect of depriving a person entitled to the writ of his substantive right, the act would be unconstitutional, and therefore the court must construe it "if possible to avoid that result." Id. at 966. The court ruled that the district court that had jurisdiction over the superior officers of the immediate jailer would have jurisdiction to hear the petition and grant or deny the writ. Id. at 967. The Secretary of Defense became the relevant official. He sought certiorari from the Supreme Court. The Supreme Court granted review and reversed. By way of introduction to its reasoning, the Court noted that "[w]e are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction." Eisentrager, 339 U.S. at 768.
The Court went on to hold that the writ was unavailable to the enemy aliens beyond the sovereign territory of the United States. The Court did not end its discussion with the language concerning sovereignty, however. It noted that trial of the writ "would hamper the war effort and bring aid and comfort to the enemy." Id. at 779. The Court further noted that such trial would constitute "effective fettering of a field commander," by allowing "the very enemies he is ordered to reduce to submission to call him to account ...