Am. Civil Liberties Union Found. ex rel. Unnamed U.S. Citizen v. Mattis
Am. Civil Liberties Union Found. ex rel. Unnamed U.S. Citizen v. Mattis
Opinion of the Court
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 *55behalf the detainee.
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 *56disclosed 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,
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.
*57Whitmore v. Arkansas ,
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,
The ACLUF argues that it has next friend standing here because (1) the detainee is inaccessible, (2) the detainee has requested the assistance of counsel, and (3) "no other putative next friend has come forward" to represent him. (ECF No. 13, Opp. at 4). The ACLUF emphasizes that it is able to properly represent the detainee given its longstanding commitment to "upholding the constitutional rights of individuals" and its experience in representing other U.S. citizens detained under similar circumstances. (Id. at 5). Additionally, it argues that given the extreme circumstances of this case, including the Defense Department's refusal to allow anyone (other than the Red Cross) access to the detainee, the ACLUF's lack of a personal relationship with the detainee should not be a bar to next friend standing. (Id. at 11-13).
For "purposes of this filing," the Defense Department does not dispute that the first prerequisite to next friend standing is satisfied: the detainee is currently inaccessible, and therefore cannot bring a habeas petition on his own behalf. (Mot. at 6-7 n.1). But the Department argues that the ACLUF cannot meet the second Whitmore requirement because it cannot show that it is dedicated to the detainee's best interests, nor can it establish a significant relationship with him. (Id. at 6). Having considered the arguments of the parties, and under the facts of this case, the court finds that the ACLUF has demonstrated that it is dedicated to the detainee's best interests, and that a showing of a significant relationship is not required in this case.
1. The "Best Interests" Prong of the Whitmore Test
The Defense Department argues that next friend standing should be denied because the ACLUF has not conferred or *58met with the detainee, and therefore cannot prove that it is pursuing his best interests, and, most importantly, the ACLUF does not know if the detainee wants the ACLUF to pursue habeas relief on his behalf. (Id. 7-10). The court finds the Defense Department's position to be disingenuous at best, given that the Department is the sole impediment to the ACLUF's ability to meet and confer with the detainee. Moreover, having informed the detainee of his right to counsel, and the detainee having asked for counsel, the Department's position that his request should simply be ignored until it decides what to do with the detainee and when to allow him access to counsel is both remarkable and troubling.
In support of its argument, the Defense Department cites to three cases where next friend standing was denied, based, in part, on the putative next friend's failure to meet and confer with the detainee to learn of his wishes. (Id. at 8-9). However, in one of the cases, Sanchez-Velasco v. Sec'y of Dep't of Corrections,
The situation here is significantly different. Unlike in Sanchez , the ACLUF has tried to meet and confer with the detainee. Its letter to the Secretary of Defense and the Attorney General, just seventeen days after the detainee was taken into custody by U.S. forces, was met with silence. Here, it is the Defense Department's-not the ACLUF's-inaction that has prevented the ACLUF from meeting with the detainee. Moreover, unlike the other two cases upon which the Defense Department relies, in which the detainees did not want to avail themselves of the legal system, there is no indication here that the detainee does not wish to do so. Indeed, it is clear-and not mere speculation-that he wishes to have the assistance of a lawyer. Given the conditions under which the detainee is currently being held, his request for legal assistance is certainly evidence from which this court could infer a desire to avail himself of the legal system. Therefore, the court finds that the ACLUF has satisfied the "best interests" prong of the Whitmore test.
2. Significant Relationship
The D.C. Circuit has not adopted the significant relationship requirement for next friend standing. Does v. Bush ,
Even where no relationship-significant or otherwise-exists, next friend standing may be warranted in extreme circumstances. See Coal. of Clergy, Lawyers, & Professors v. Bush ,
The court finds Judge Berzon's interpretation to be persuasive, and concludes that the ACLUF satisfies both requirements and therefore does not need to establish a significant or prior relationship with the detainee in this case. First, as discussed above, the ACLUF has demonstrated a dedication to the detainee's best interests, and it attempted, prior to filing a petition in this court, to establish a relationship with the detainee by writing the Defense Department to note the detainee's right to counsel and to offer to act on his behalf. (Pet. ¶ 18). It received no response. (Id. ). Second, the court finds that the circumstances in this case preclude someone with a significant relationship from serving as the detainee's next friend. For over three months, the detainee's identity and location have remained unknown. Aside from two visits from the Red Cross, the detainee has had no contact with anyone other than armed forces and law enforcement personnel. (Decl. of Steven W. Dalbey ¶ 4; Pet. ¶¶ 16-17).
The Defense Department maintains that if the detainee wished to have someone take legal action on his behalf, he could have made this request during his visits with the Red Cross. (Mot. at 15). But the record is devoid of any information regarding the Red Cross visits (including whether the Red Cross was informed of the detainee's name), whether the detainee has family members or associates who know about his detention, whether he wants them to know of his detention, or whether any such individuals would be willing or able to take legal action on his behalf.
Moreover, the detainee's own statements, as proffered by the Defense Department, indicate that he appears to believe that counsel will be appointed for him. After the detainee told the FBI agents that he "felt he should have an attorney present," the agents indicated they were unsure when he would have access to an attorney, and the detainee "stated that it was ok and that he is a patient man . [He] then asked whether when he saw the agents next with his attorney , would it be at his current location or somewhere else." (Gov't Nov. 30 Filing at 2) (emphasis added). His statements indicate that not only does he want counsel, but that he is waiting for counsel to be provided. This would certainly explain *60why he may not have asked the Red Cross for assistance in obtaining counsel.
The court's ruling on the "significant relationship" issue in this case does not "open the floodgates to 'intruders or uninvited meddlers' " as the Defense Department suggests. (Mot. at 13) (quoting Whitmore ,
B. Access to Counsel
The Defense Department argues that the detainee does not have the immediate right to meet with counsel because his "final disposition" has yet to be determined. (Mot. at 16-21). Relying on Boumediene v. Bush ,
Nothing in Boumediene restrains this court from ordering the Defense Department to grant the ACLUF immediate access. In that case, the Supreme Court, having found that foreign nationals were entitled to habeas relief, simply noted that the government should be permitted a reasonable amount of time in which to determine whether such detainees are enemy combatants before a court entertains a writ of habeas corpus.
Finally, the Defense Department cannot strip the detainee of his right to habeas relief simply because the Department contends that allowing the ACLUF access "would be no easy matter." (Mot. at 21). The Department is experienced in managing such difficulties in other cases, and has provided no reason why such inconvenience should outweigh the necessity of providing the detainee with the access to counsel he requested months ago.
IV. CONCLUSION
For the foregoing reasons, the court will: (1) DENY the Defense Department's motion to dismiss; (2) order that the Defense Department allow the ACLUF immediate and unmonitored access to the detainee for the sole purpose of determining whether the detainee wishes for the ACLUF to continue this action on his behalf; and (3) order the Defense Department to refrain from transferring the detainee until the ACLUF informs the court of the detainee's wishes. The Defense Department may renew its motion to dismiss should the court learn that the detainee *61does not wish for the ACLUF to continue this action.
The court orally granted the ACLUF's request to proceed pseudonymously nunc pro tunc at the November 30, 2017 hearing. (ECF No. 22, Tr. at 4:23-5:1).
Reference
- Full Case Name
- AMERICAN CIVIL LIBERTIES UNION FOUNDATION, as Next Friend, ON BEHALF OF UNNAMED U.S. CITIZEN v. Gen. James N. MATTIS, in his official Capacity as Secretary of Defense
- Cited By
- 4 cases
- Status
- Published