Khadr v. Bush

• Decision Date: 24 November 2008
• Docket Number: Civil Action No. 04-1136(JDB).,Misc. No. 08-0442(TFH).
• Citation: 587 F.Supp.2d 225
• Parties: Omar KHADR, et al., Petitioners, v. George W. BUSH, et al., Respondents.
• Court: U.S. District Court — District of Columbia

587 F.Supp.2d 225

Omar KHADR, et al., Petitioners, v. George W. BUSH, et al., Respondents.

Civil Action No. 04-1136(JDB).

Misc. No. 08-0442(TFH).

United States District Court, District of Columbia.

November 24, 2008.

COPYRIGHT MATERIAL OMITTED

Rebecca Susan Snyder, U.S. Department of Defense, William Kuebler, U.S. Department of Defense, Office of Military Commissions, Karl R. Thompson, O'Melveny & Myers, LLP, Muneer I. Ahmad, Richard J. Wilson, International Human Rights Law Clinic, American University, Washington College of Law, Washington, DC, Clive A. Stafford Smith, New Orleans, LA, for Petitioners.

August Edward Flentje, Scott Michael Marconda, Alexander Kenneth Haas, John Caviness O'Quinn, Kathryn Celia Mason, Terry Marcus Henry, U.S. Department of Justice, Washington, DC, Judry Laeb Subar, Andrew I. Warden, United States Department of Justice, Civil Division, Federal Programs Branch, for Respondents.

Charles B. Gittings, Jr., Manson, WA, pro se.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Petitioner Omar Khadr ("petitioner" or "Khadr") is a 22-year-old detainee at the United States Naval Base in Guantánamo Bay, Cuba, who has been held in United States custody since the age of fifteen.¹ On January 26, 2009, petitioner is scheduled to be tried by a military commission for alleged criminal violations of the law of war. Currently before the Court is petitioner's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 based on the fact that he was a juvenile at the time of his capture. By his motion, petitioner asks the Court to grant a writ of habeas corpus, permanently enjoin his trial by military commission, and order his outright release or, alternatively, order him released from adult detention and placed into an appropriate rehabilitation and reintegration program for juvenile detainees. Respondents ("the Government") have filed a cross-motion to dismiss petitioner's habeas case without prejudice or to hold the petition in abeyance pending the completion of military commission proceedings. Upon careful consideration of the motions, the parties' several memoranda, the arguments advanced at the motions hearing held on October 30, 2008, the applicable law, and the entire record, the Court will deny petitioner's motion and will grant respondents' motion in part.

FACTUAL AND PROCEDURAL BACKGROUND

Omar Khadr is a Canadian citizen who was taken into United States custody in Afghanistan following a firefight in which several members of the U.S.-led coalition were killed or injured. See Resp'ts' Opp'n to Petr's Mot. ("Resp'ts' Opp'n") at 8. Petitioner was fifteen years old at the time of his capture in July 2002. See Mem. in Supp. of Pet'r's Mot. ("Pet'r's Mot.") at 7. Approximately three months after his capture, petitioner was transferred to the United States Naval Base in Guantánamo Bay, Cuba. Upon his arrival at Guantánamo, at the age of sixteen, petitioner was placed in adult detention facilities, where he remains to this day. See id. At no time during his detention has petitioner been segregated from adult detainees or afforded special treatment because he was a juvenile when initially detained. See Pet'r's Stmt. of Undisputed Material Facts in Supp. of Pet'r's Mot. ¶ 3.

In September 2004, Khadr was brought before a Combatant Status Review Tribunal ("CSRT") to determine whether he was an "enemy combatant" subject to continuing detention at Guantánamo. See Pet'r's Mot. at 8. Petitioner's CSRT concluded that he was "properly designated as an enemy combatant" because he was "a member of, or affiliated with al-Qaida." Kuebler Aff., Ex. 7. While being detained as an "enemy combatant," he was charged with war crimes and the Government referred him for trial before a military commission. See Pet'r's Mot. at 8-9. Following the Supreme Court's decision in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), and the subsequent passage of the Military Commissions Act of 2006 ("MCA"), see Pub. L. No. 109-366, 120 Stat. 2600 (2006), the Government preferred new military commission charges against petitioner in April 2007. See id. at 9. Petitioner's military commission trial is now scheduled to begin on January 26, 2009.

This action began on July 2, 2004, when Khadr filed a petition for a writ of habeas corpus—through his grandmother as next friend—challenging the fact of his detention and the conditions of his confinement in United States custody. With the date of his military commission trial drawing near,² petitioner filed the instant motion on September 10, 2008. His motion seeks a writ of habeas corpus, a permanent injunction to prevent his trial by military commission, and an order for his outright release or, alternatively, an order that he be released from adult detention and placed into a rehabilitation and reintegration program appropriate for juvenile detainees.

In response, the Government filed a cross-motion to dismiss petitioner's habeas case without prejudice or to hold the petition in abeyance pending the completion of military commission proceedings. The Government argues that because the issues presented in this habeas action overlap substantially with those presented in the ongoing criminal proceedings before the military commission, this Court should, in its discretion, abstain to allow for the resolution of those issues by the military commission, and then by appeal to the D.C. Circuit, in the first instance. See Resp'ts' Opp'n at 5. On October 30, 2008, a hearing was held on the parties' cross-motions.

STANDARD OF REVIEW

It is well-established that dispositive motions under the Federal Rules of Civil Procedure are appropriate in habeas proceedings. See, e.g., Jackson v. Harrison, No. 05-1969, 2006 WL 3313300 (D.D.C. Nov. 14, 2006); United States ex. rel. New v. Rumsfeld, 350 F.Supp.2d 80 (D.D.C.2004); Whitaker v. Meachum, 123 F.3d 714 (2d Cir.1997). Under Fed. R.Civ.P. 12(c), a motion for judgment on the pleadings shall be granted if the moving party demonstrates that "no material fact is in dispute and that it is entitled to judgment as a matter of law." Peters v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.Cir.1992) (internal quotation omitted). Similarly, summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Resolving a motion to stay or to hold a matter in abeyance pending the outcome of a related or parallel proceeding turns upon the unique circumstances of the case, and is largely a matter of discretion for the court. A court may grant such a motion if it finds that "[i]n the interest of judicial economy and avoiding unnecessary litigation" a stay is appropriate. Al-Anazi v. Bush, 370 F.Supp.2d 188, 199 (D.D.C. 2005); Al Shabany v. Bush, No. 05-2029, 2005 WL 3211407, at *2 (D.D.C. Nov. 17, 2005).

DISCUSSION

The parties agree that only pure matters of law are at issue here as there are no material facts in dispute that bear upon the motions. Petitioner's motion sets forth three principal claims. He first argues that his upcoming trial before a military commission convened pursuant to the MCA is unlawful because the MCA does not confer personal jurisdiction to try juveniles. See Pet'r's Mot. at 24-35. Next, petitioner asserts that his detention as an "enemy combatant" is unlawful because under U.S. law and the law of war a juvenile cannot be a "member," "affiliate," or "associate" of an armed group such as al-Qaeda, and that is the Government's sole stated basis for detaining him. See id. at 36-41. Finally, petitioner argues that even if there is some lawful basis for his detention, he cannot be detained—as he has been since capture—as an adult because he was a juvenile at the time of capture and the law of war requires that he be placed in a rehabilitation and reintegration program appropriate for former child soldiers. See id. at 41-44.

Urging the Court not to reach the merits of Khadr's claims, the Government argues that his motion fails for two threshold reasons—Congress stripped this Court of jurisdiction to hear the motion and, even if this Court had jurisdiction, it would be required to abstain under the well-established principles of Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). See Resp'ts' Opp'n at 10-27. After careful consideration, the Court agrees that these two threshold issues are fatal to petitioner's motion.³ The Court concludes that Councilman abstention is appropriate with respect to petitioner's first two claims⁴ and that, with respect to his final claim, the Court lacks jurisdiction to hear the claim because it relates to the conditions of petitioner's confinement, not to the fact of his detention, see 28 U.S.C. § 2241(e)(2).

I. Councilman Abstention is Appropriate With Respect to Petitioner's First and Second Claims.

In Schlesinger v. Councilman, the Supreme Court reaffirmed the general rule "that federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted." 420 U.S. at 758, 95 S.Ct. 1300. Councilman identified two principal comity-based considerations that normally preclude a federal court from intervening in a pending military court proceeding. See New v. Cohen, 129 F.3d 639, 643 (D.C.Cir.1997). First, military discipline and the efficient operation of the military itself are best served if the military justice system acts without regular interference from civilian courts. See Hamdan, 548 U.S. at 586, 126 S.Ct. 2749 (discussing Councilman). Second, federal courts should respect the balance that Congress struck between military preparedness and fairness to individual service members charged with military offenses by "creat[ing] an integrated system of...