Ben earlier noted an order, in which Judge John Bates instructed petitioners in Al Maqleh v. Obama to file, by no later than today, a “short summary, not to exceed two pages,” of any newly discovered facts that might bear on the government’s pending motion to dismiss. (The question posed by the case, you’ll recall, is whether the district court’s habeas jurisdiction extends to detentions conducted by the U.S. government at Bagram Airbase in Afghanistan.)
The petitioners today complied with the District Court’s order. The substantive portion of their filing is as follows:
Petitioners respectfully submit the following information in response to this Court’s order of August 28, 2012, instructing Petitioners to provide a summary of the factual developments referenced in their Notice of Intent to File Declarations, Al Maqaleh v. Obama, No. 06-1669 (D.D.C. Aug. 17, 2012), ECF No. 81 (“Pet’rs’ Notice”).
After filing their Supplemental Memorandum and Materials in Further Support ofRespondents’ Motion to Dismiss on July 23, 2012, Petitioners learned of the availability of witnesses in the United States and Afghanistan, including current and former governmental officials, with factual information concerning two issues relevant to the jurisdictional question before the Court. Petitioners expect to submit declarations and/or documents in September revealing (1) evidence of Respondents’ use of Bagram for the purpose of evading judicial scrutiny of Petitioners’ imprisonment, and bearing on (2) Respondents’ assertions of “practical obstacles” based on the Bagram prison’s location within the sovereign territory of Afghanistan.
Petitioners are unable to name these witnesses or to provide further details about the content of the intended declarations in this filing for the following reasons. First, several of the aforementioned witnesses are presently located in Afghanistan. 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. Second, it is not yet certain that all of the witnesses will agree to be publicly identified, nor is it possible to assure the Court at this stage of the full and final substance of the facts they will agree to put “on the record” in a sworn declaration. Finally, Petitioners would be prejudiced from the premature revelation of additional details about their legal strategy to the government at this juncture, prior to securing the aforementioned declarations. Of course, further explication of the factual developments alluded to in Petitioner’s Notice will be provided in the forthcoming declarations.