Am. Civil Liberties Union Found. ex rel. Unnamed U.S. Citizen v. Mattis, Case No. 17–cv–2069 (TSC)

• Decision Date: 23 December 2017
• Docket Number: Case No. 17–cv–2069 (TSC)
• Citation: 286 F.Supp.3d 53
• Court: U.S. District Court — District of Columbia
• Parties: AMERICAN CIVIL LIBERTIES UNION FOUNDATION, as Next Friend, ON BEHALF OF UNNAMED U.S. CITIZEN, Petitioner, v. Gen. James N. MATTIS, in his official Capacity as Secretary of Defense, Respondent.

286 F.Supp.3d 53

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, as Next Friend, ON BEHALF OF UNNAMED U.S. CITIZEN, Petitioner,

v.Gen. James N. MATTIS, in his official Capacity as Secretary of Defense, Respondent.

Case No. 17–cv–2069 (TSC)

United States District Court, District of Columbia.

Signed December 23, 2017

Arthur B. Spitzer, American Civil Liberties Union of The District of Columbia, Washington, DC, Brett Max Kaufman, Hina Shamsi, Jonathan Hafetz, New York, NY, for Petitioner.

Kathryn L. Wyer, U.S. Department of Justice, Washington, DC, for Respondent.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Somewhere in Iraq, a United States citizen has been in the custody of the U.S. armed forces for over three months. The detainee, who has been classified as an enemy combatant and whose name has not been released, was advised of his right to counsel and requested the assistance of counsel. To date, the detainee remains unnamed, uncharged, and, despite his request, without access to counsel. This court must now consider whether Petitioner shall be permitted to proceed in this matter as the detainee's next friend.

Petitioner American Civil Liberties Union Foundation ("ACLUF") seeks a writ of habeas corpus as putative next friend on behalf the detainee.¹ (ECF No. 4, Pet.). The Defense Department has moved to dismiss the petition for lack of subject matter jurisdiction, arguing that the ACLUF lacks standing to seek habeas relief on the detainee's behalf, and that the circumstances do not warrant the ACLUF's immediate access to the detainee. (ECF No. 11, Mot.). For the reasons stated herein, the court finds that the ACLUF has standing for the limited purpose of ascertaining whether the detainee wishes for it to file a petition on his behalf. Therefore, the court will DENY the Defense Department's motion to dismiss, and order the Defense Department to provide the ACLUF with temporary, immediate and unmonitored access to the detainee so that it may inquire as to whether he wishes to have the ACLUF or court-appointed counsel continue this action on his behalf. The Defense Department may renew its motion should the court learn that the detainee does not wish for the ACLUF to continue in this action. Finally, the court will order the Defense Department to refrain from transferring the detainee until the ACLUF informs the court of the detainee's wishes.

I. BACKGROUND

On or about September 12, 2017, the detainee, who is a United States citizen, surrendered to Syrian Democratic Forces, who then transferred him to the custody of United States armed forces, who classified him as an enemy combatant. (ECF No. 11–1, Decl. of Steven W. Dalbey ¶ 3). According to the Defense Department, he remains detained within an armed conflict zone with restricted civilian access. (Id .). Other than two visits from representatives of the International Committee of the Red Cross—on September 29, 2017 and October 23, 2017—the detainee has had no contact or communication with anyone except government personnel since his detention. (Id. ¶ 4; Pet. ¶¶ 16–17).

On September 29, the American Civil Liberties Union sent a letter to Secretary of Defense James Mattis and Jefferson Sessions, the United States Attorney General. (Id. ¶ 18). The ACLU expressed its concern regarding the Department's continuing detention of a United States citizen, and emphasized the detainee's constitutional right to counsel. (Id. ). The ACLU also informed Secretary Mattis that ACLU attorneys were available to advise the detainee of his rights and to assist him in securing legal representation. (Id. ) The ACLU received no response from either government official. (Id. ).

On October 5, the ACLUF filed a petition for a writ of habeas corpus, requesting the court to order the Defense Department to allow counsel for the ACLUF to meet and confer with the detainee so that they may advise him of his legal rights and provide him with legal assistance. (Id. at p. 12). On October 12, the ACLUF filed an Emergency Motion requesting the same relief, noting that the detainee had been in custody for almost a month. (ECF No. 7 at 1). In response to the court's October 19 order to show case (ECF No. 8), the Defense Department filed a motion seeking dismissal of the petition for lack of standing, or in the alternative, denial of the ACLUF's request for immediate and unmonitored access to the detainee. (Mot.).

The court held a hearing on the government's motion to dismiss on November 30, 2017. In response to the court's inquiry at the hearing as to whether the detainee had been advised of his rights, the Defense Department filed a response in which it disclosed that, during questioning by FBI agents, the detainee was advised of "his right to remain silent and not to answer questions," and informed of "his right to consult counsel prior to questioning, to have counsel present during questioning, to have counsel appointed for him before questioning if he could not afford a lawyer, and, if he chose to answer questions without counsel present, to stop answering at any time." (ECF No. 18, Gov't Nov. 30 Filing at 1–2). The filing further stated:

The individual stated he understood his rights, and said he was willing to talk to the agents but also stated that since he was in a new phase, he felt he should have an attorney present. The agents explained that due to his current situation, it was unknown when he would be able to have an attorney, and the individual stated that it was ok and that he is a patient man. The individual then asked whether when he saw the agents next with his attorney, would it be at his current location or somewhere else. The agents told him they were uncertain when they would see him again. No further questioning for law enforcement purposes has taken place.

(Id. at 2).

The Defense Department has not indicated how long it expects to hold the detainee, other than to state that it is "still in the process of determining what its final disposition regarding the individual will be." (Mot. at 21); see also (ECF No. 28) ("The Government continues to work diligently to reach a decision regarding what to do with the detainee, but no final decision has yet been reached."). On December 21, 2017, the ACLUF filed a copy of a New York Times article, which reported that national security officials may transfer the detainee to Saudi Arabia, and that such a transfer may require him to renounce his U.S. Citizenship. (ECF No. 27). The court ordered the Defense Department to respond to the ACLUF's notice, but the agency did not confirm or deny whether the detainee will be transferred. (See generally ECF No. 28).

II. LEGAL STANDARD

A motion to dismiss a petition for habeas corpus for lack of subject matter jurisdiction is subject to review under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Rasul v. Bush, 215 F.Supp.2d 55, 61 (D.D.C. 2002), aff'd, Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003), rev'd on other grounds, Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (applying Fed. R. Civ. P. 12(b)(1) to the government's motion to dismiss a pending habeas petition on jurisdictional grounds). Under Rule 12(b)(1), the petitioner bears the burden of establishing the court's jurisdiction. See Am. Farm Bureau v. U.S. E.P.A. , 121 F.Supp.2d 84, 90 (D.D.C. 2000). The petition should be liberally construed, and the court should view the facts in the light most favorable to the petitioner. See Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). The court need not limit itself to the allegations in the petition, but may consider any materials outside the pleadings as it deems appropriate to determine whether it has jurisdiction over the case. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992) ).

III. DISCUSSION

A. Standing

Under Article III of the Constitution, a federal court cannot consider the merits of a claim until the party seeking to invoke the jurisdiction of the court can establish the requisite standing to sue.

Whitmore v. Arkansas , 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). In order to do so, a plaintiff "must show that he has suffered an injury in fact that is fairly traceable to the challenged action of the defendant, and that is likely to be redressed by a favorable decision." Hamdi v. Rumsfeld , 294 F.3d 598, 602 (4th Cir. 2002) (citing Whitmore , 495 U.S. at 155, 110 S.Ct. 1717 ) (other citations omitted). Recognizing that some individuals may be unable to seek judicial relief on their own, however, the Supreme Court held in Whitmore v. Arkansas , 495 U.S. at 161–62, 110 S.Ct. 1717, that a person who does not satisfy Article III's standing requirements may still proceed in federal court through a mechanism known as "next friend" standing. Next friend standing originated in the habeas corpus context, and is codified in the federal habeas statute. See 28 U.S.C. § 2242 ("Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf."). The onus is on the putative next friend to establish the requirements for standing. Whitmore, 495 U.S. at 164, 110 S.Ct. 1717.

Whitmore established two requirements for next friend standing. First, the next friend must provide "an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action." Id . at 163, 110 S.Ct. 1717 (citations omitted). Second, the next friend must demonstrate that it is "truly dedicated to the best interests of the person on whose behalf [it] seeks to litigate." Id. The Court also noted in dicta that "it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest," but did...