Ghulam Mohammed v. Don Rumsfeld

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PETITION FOR A WRIT OF HABEAS CORPUS
 * }


 * 1) Petitioners in the custody of the United States seek the Great Writ. They act on their own behalf and through their Next Friends. Though they have committed no wrong, they are being held unlawfully and virtually incommunicado by Respondent.

I. JURISDICTION

 * 1) Petitioners bring this action under 28 U.S.C. §§2241 and 2242, and invoke this Court’s jurisdiction under 28 U.S.C. §§1331, as well as the Fifth and Eighth Amendments to the United States Constitution.
 * 2) This Court is empowered under 28 U.S.C. §2241 to grant the Writ of Habeas Corpus, and to entertain the Petition filed by Petitioners under 28 U.S.C. §2242. This Court is further empowered to declare the rights and other legal relations of the parties herein by 28 U.S.C. §2201, and to effectuate and enforce declaratory relief by all necessary and proper means by 28 U.S.C. §2202, as this case involves an actual controversy within the Court’s jurisdiction, and to issue such ancillary orders as may be appropriate under the circumstances, pursuant to 28 U.S.C. §1651.

II. VENUE

 * 1) Venue is proper in the United States District Court for the District of Columbia, since Respondent resides in the district, a substantial part of the events or omissions giving rise to the claim occurred in the district, and/or Respondent is an officer or employee of the United States or any agency thereof acting in his official capacity. 28 U.S.C. §§1391(b); 1391(e).

III. PARTIES
Mohammed’s father. Because his son cannot secure access either to legal counsel or the courts of the United States, Pir Mohammed Pahlawan acts as Next Friend.
 * 1) Petitioner Ghulam Mohammed (a/k/a Ghulam Mohammed s/o Abdul Mahdi) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 2) Petitioner Raz Mohammad (a/k/a Raz Mohammad s/o Abdul Mahdi), also an Afghan citizen, is Ghulam Mohammed’s brother. Because his brother cannot secure access either to legal counsel or the courts of the United States, Raz Mohammad acts as Next Friend.
 * 3) Petitioner Hasan Balgaid is a citizen of Libya who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 4) Petitioner Omar Deghayes, a British resident, is Hasan Balgaid’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Omar Deghayes acts as Next Friend.
 * 5) Petitioner Salih is a citizen of Libya who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 6) Petitioner Omar Deghayes, a British resident, is Salih’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Omar Deghayes acts as Next Friend.
 * 7) Petitioner Muhammed Dawood is a citizen of Libya who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 8) Petitioner Omar Deghayes, a British resident, is Muhammed Dawood’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Omar Deghayes acts as Next Friend.
 * 9) Petitioner Aminullah (a/k/a Aminullah s/o Habib Ullah) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 10) Petitioner Hamid Ullah, also an Afghan citizen, is Aminullah’s brother. Because his brother cannot secure access either to legal counsel or the courts of the United States, Hamid Ullah acts as Next Friend.
 * 11) Petitioner Aminullah (a/k/a Aminullah s/o Mohammed Shah) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 12) Petitioner Haji Naqibullah is Aminullah’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 13) Petitioner Zafir Khan (a/k/a Zafir Khan s/o Farioz) is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 14) Petitioners Abdul Salaam and/or Ghanam Gul, also Afghan citizens, are Zafir Khan’s friend(s). Because their friend cannot secure access either to legal counsel or the courts of the United States, Abdul Salaam and/or Ghanam Gul act(s) as Next Friend.
 * 15) Petitioners Abdul Salaam and/or Ghanam Gul, Afghan citizens, are Zafir Khan’s friend(s). Because their friend cannot secure access either to legal counsel or the courts of the United States, Abdul Salaam and/or Ghanam Gul act(s) as Next Friend.
 * 16) Petitioner Gul Rehman is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 17) Petitioner Fazal Ahmad, also a citizen of Afghanistan, is Gul Rehman’s cousin. Because his cousin cannot secure access either to legal counsel or the courts of the United States, Fazal Ahmad acts as Next Friend.
 * 18) Petitioner Ghanam Gul is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 19) Petitioner Azeem Gul, also a citizen of Afghanistan, is Ghanam Gul’s brother. Because his brother cannot secure access either to legal counsel or the courts of the United States, Azeem Gul acts as Next Friend.
 * 20) Petitioner Nazar Mohammed (a/k/a Nazar Mohammed s/o Pir Mohammed Pahlawan) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 21) Petitioner Pir Mohammed Pahlawan, also a citizen of Afghanistan, is Nazar Mohammed’s father. Because his son cannot secure access either to legal counsel or the courts of the United States, Pir Mohammed Pahlawan acts as Next Friend.
 * 1) Petitioner Pir Mohammed Pahlawan, also a citizen of Afghanistan, is Nazar Mohammed’s father. Because his son cannot secure access either to legal counsel or the courts of the United States, Pir Mohammed Pahlawan acts as Next Friend.
 * 1) Petitioner Mohibullah (a/k/a Mohibullah s/o Kareem Khan) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 2) Petitioner Abdul Salam Zalmay (a/k/a Abdul Salaam), also an Afghan citizen, is Mohibullah’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Abdul Salam Zalmay acts as Next Friend.
 * 3) Petitioner Sardar Khan is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 4) Petitioner Zahir Shah is Sardar Khan’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Zahir Shah acts as Next Friend.
 * 5) Petitioner Sardar Mohammad is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 6) Petitioner Baz Mohammad is Sardar Mohammad’s father. Because his son cannot secure access either to legal counsel or the courts of the United States, Baz Mohammad acts as Next Friend.
 * 7) Petitioner Maulvihameedullah (a/k/a Maulvihameedullah s/o Mohammad Umar) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 8) Petitioner Haji Naqibullah, also an Afghan citizen, is Maulvihameedullah’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 9) Petitioner Malik Abdual Rahim (a/k/a Malik Abdul Rahim) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 10) Petitioner Haji Naqibullah, also an Afghan citizen, is Malik Abdual Rahim’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 11) Petitioner Maulvi Naeem (a/k/a Maulvi Naeem s/o Mullah Khairullah) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 12) Petitioner Haji Naqibullah, also an Afghan citizen, is Maulvi Naeem’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 13) Petitioner Haji Mullah Abdul Razaq (a/k/a Haji Mullah Abdul Razaq s/o Mohammed Yaqoob) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 14) Petitioner Haji Naqibullah, also an Afghan citizen, is Haji Mullah Abdul Razaq’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 15) Petitioner Gul Mohammed (a/k/a Gul Mohammed s/o Zahir Lala) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 16) Petitioner Haji Naqibullah, also an Afghan citizen, is Gul Mohammed’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 17) Petitioner Haji Sardar Mohammed (a/k/a Haji Sardar Mohammed s/o Moladad s/o Mohammed Ayub Khan) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 18) Petitioner Haji Naqibullah, also an Afghan citizen, is Haji Sardar Mohammed’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Haji Naqibullah acts as Next Friend.
 * 19) Petitioner Mohammed Yaqoub Akhounzada (a/k/a Mohammed Yaqoob Akhwanzada s/o Mohammed Usman) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 20) Petitioner Abdul Salam Zalmay, also an Afghan citizen, is Mohammed Yaqoub Akhounzada’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Abdul Salam Zalmay acts as Next Friend.
 * 21) Petitioner Mohabud Din (a/k/a Mohabid Din) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 22) Petitioner Burhanud Din, also an Afghan citizen, is Mohabud Din’s brother. Because his brother cannot secure access either to legal counsel or the courts of the United States, Burhanud Din acts as Next Friend.
 * 23) Petitioner Mohammed Ayub (a/k/a Mohammed Ayub s/o Kareem Khan) is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 24) Petitioners Abdul Salaam and/or Ghanum Gul, also Afghan citizens, is/are Mohammed Ayub’s friend(s). Because their friend cannot secure access either to legal counsel or the courts of the United States, Abdul Salaam and/or Ghanum Gul act(s) as Next Friend.
 * 25) Petitioner Rahmattullah (a/k/a Rahmattullah s/o Shujahuddin) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 26) Petitioner Atta Ullah is Rahmattullah’s brother. Because his brother cannot secure access either to legal counsel or the courts of the United States, Atta Ullah acts as Next Friend.
 * 27) Petitioner Mohammad Ayub (a/k/a Mohammad Ayub s/o Mohammad Usman) is a citizen of Afghanistan who is presently incarcerated and held in Respondent’s unlawful custody and control at Bagram Air Base, Afghanistan. He acts on his own behalf and through his Next Friend.
 * 28) Petitioner Abdul Salam Zalmay is Mohammad Ayub’s friend. Because his friend cannot secure access either to legal counsel or the courts of the United States, Abdul Salam Zalmay acts as Next Friend.
 * 29) Respondent Rumsfeld is the Secretary of the United States Department of Defense. He has been charged with maintaining the custody and control of the detained Petitioners, and is therefore the detained Petitioners’ ultimate custodian. Respondent Rumsfeld is sued in his official capacity.

IV Statement of facts
Indeed, Respondent has taken the position that they should not be told of these rights. As a result, the detained Petitioners are completely unable either to protect, or to vindicate their rights under domestic and international law. Indeed, Respondent has taken the position that they should not be told of these rights. As a result, the detained Petitioners are completely unable either to protect, or to vindicate their rights under domestic and international law.
 * 1) The detained Petitioners are innocent men. They are not now, nor have they ever been, enemy aliens or combatants of any kind, including enemy combatants, unlawful combatants, or unprivileged combatants. On information and belief, they are not now, nor have they ever been, members of or associated with the Taliban government, the Al Qaeda terrorist network, or any group or organization whose interests or aims are adverse to those of the United States.
 * 2) On information and belief, prior to their detention, Petitioners did not commit any violent act against any American person, nor did they espouse any violent act against any American person or property, nor were they involved in the armed conflict undertaken in the wake of the attacks on the United States on September 11, 2001. On information and belief, they had no involvement, direct or indirect, in either the terrorist attacks on the United States September 11 2001, or any act of international terrorism attributed by the United States to Al Qaida or any terrorist group. They are not properly subject to the detention Order issued by President Bush described below. As they did not participate in the armed conflict at any point in time, nor are they properly subject to the President's authority as Commander in Chief and under the laws and usages of war.
 * 3) On information and belief, the detained Petitioners had no military or terrorist training.
 * 4) On information and belief, they at no time voluntarily joined any terrorist force.
 * 5) On information and belief, certain of the detained Petitioners were not initially taken into custody by American forces. They were taken into custody against their will by other forces, and handed over to the Americans.
 * 6) On information and belief, certain of the detained Petitioners promptly identified themselves by correct name and nationality to the United States. They requested that the United States provide them with access to family and to legal counsel
 * 7) On November 13, 2001, President Bush issued a Military Order authorizing indefinite detention without due process of law. The Order authorizes Respondent Rumsfeld to detain anyone President Bush has “reason to believe”:
 * 8) is or was a member of the organization known as al Qaida;
 * 9) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or
 * 10) has knowingly harbored one or more individuals described in subparagraphs (i) and (ii). President Bush must make this determination in writing. The Order was neither authorized nor directed by Congress, and is beyond the scope of the Joint Resolution authorizing the use of military force passed by Congress September 14, 2001.
 * 11) The Military Order vests the President with complete discretion to identify the individuals that fall within its scope. It establishes no standards governing the use of his discretion. Once a person has been detained, the Order contains no provision for him to be notified of the charges he may face. On the contrary, the Order authorizes detainees to be held without charges. It contains no provision for detainees to be notified of their rights under domestic and international law, and provides neither the right to counsel, nor the right to consular access. It provides no right to appear before a neutral tribunal to review the legality of a detainee’s continued detention and no provision for appeal to an Article III court. In fact, the Order expressly bars review by any court. For those detainees who will not be tried before a tribunal, the Order authorizes indefinite and unreviewable detention, based on nothing more than the President’s written determination that an individual is subject to its terms.
 * 12) On information and belief, President Bush has never certified or determined in any manner, in writing or otherwise, that the detained Petitioners are subject to this detention order.
 * 13) On information and belief, the detained Petitioners are not properly subject to this detention order.
 * 14) On information and belief, since gaining control of the detained Petitioners, the United States military has held them virtually incommunicado and without legal process. They have been or will be interrogated repeatedly by agents of the United States Departments of Defense and Justice, though they have not been charged with an offense, nor have they been notified of any pending or contemplated charges. They have made no appearance before either a military or civilian tribunal of any sort, nor have they been provided counsel or the means to contact counsel. They have not been informed of their rights under the United States Constitution, the regulations of the United States Military, the Geneva Convention, the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, or Customary International Law.
 * 1) Bagram Air Base, where the detained Petitioners are incarcerated, is subject to the complete jurisdiction and control of the United States military. The detained Petitioners are in the physical and legal custody of the United States, at a U.S. military facility that is subject to U.S. constitutional and statutory law, and answerable to the federal judiciary. See Rasul v. Bush, 124 S.Ct. 2686 (2004).

First claim for relief
(habeas statute — common law habeas


 * 1)  Petitioners incorporate paragraphs 1-67 by reference.
 * 2) By the actions described above, Respondent, acting under color of law, has deprived the detained Petitioners of their rights under 28 U.S.C. §§ 2241 (c)(1) and (c)(3), in that Respondent has incarcerated the detained Petitioners without lawful process, and with no means to test the legal and factual basis for their continued incarceration.

Second claim for relief
(DUE PROCESS – FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION)


 * 1) Petitioners incorporate paragraphs 1-69 by reference.
 * 2) By the actions described above, Respondent, acting under color of law, has violated and continues to violate the Fifth Amendment to the United States Constitution by incarcerating the detained Petitioners without Due Process of Law.

Third claim for relief
(DUE PROCESS – FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION)


 * 1) Petitioners incorporate paragraphs 1-71 by reference.
 * 2) By the actions described above, Respondent, acting under color of law, has violated and continues to violate the right of the detained Petitioners to be free from arbitrary, prolonged, and indefinite detention, in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution.

Fourth claim for relief
(DUE PROCESS – International law

(DUE PROCESS – INTERNATIONAL LAW)


 * 1) Petitioners incorporate paragraphs 1-73 by reference.
 * 2) By the actions described above, Respondent, acting under color of law, has violated and continues to violate Customary International Law, Arts. 9 & 14 of the International Covenant on Civil and Political Rights, and Arts. 18, 25, & 26 of the American Declaration on the Rights and Duties of Man by depriving the detained Petitioners of their right to be free from arbitrary, prolonged, and indefinite detention.

FIFTH CLAIM FOR RELIEF

(DUE PROCESS – FAILURE TO COMPLY WITH U.S. MILITARY REGULATIONS AND

INTERNATIONAL HUMANITARIAN LAW)

continue to violate the rights accorded to persons seized by the United States Military in times of armed conflict, as established by, inter alia, the regulations of the United States Military, including regulation 190-8, Articles 4 and 5 of Geneva Convention III, Geneva Convention IV, and Customary International Law.
 * 1) Petitioners incorporate paragraphs 1-75 by reference.
 * 2) By the actions described above, Respondent, acting under color of law, have violated and continue to violate the rights accorded to persons seized by the United States Military in times of armed conflict, as established by, inter alia, the regulations of the United States Military, including regulation 190-8, Articles 4 and 5 of Geneva Convention III, Geneva Convention IV, and Customary International Law.

(SUSPENSION OF THE WRIT)


 * 1) Petitioners incorporate paragraphs 1-77 by reference.
 * 2) To the extent the Respondent maintains the detained Petitioners may not challenge the legality of their detention by way of habeas corpus, Respondent’s actions constitute an unlawful Suspension of the Writ of Habeas Corpus, in violation of Article I of the United States Constitution.

VI. PRAYER FOR RELIEF
WHEREFORE, Petitioners pray for relief as follows:


 * 1) Grant Next Friend Petitioners Next Friend status;
 * 2) Order the detained Petitioners released from Respondent’s unlawful custody;
 * 3) Order Respondent to allow counsel to meet and confer with the detained Petitioners, in private and unmonitored attorney-client conversations;
 * 4) Order Respondent to make a prompt return to the writ in accordance with 28 U.S.C. § 2243 and to the extent Respondent contests any material factual allegations in this Petition, schedule an evidentiary hearing, at which Petitioners may adduce proof in support of his allegations;
 * 5) Such other relief as the Court may deem necessary and appropriate to protect Petitioners’ rights under the United States Constitution, the Habeas Statute, and International Law.

Counsel for Petitioners declare under penalty of perjury that the foregoing is true and correct to the best of our knowledge, information, and belief.

CERTIFICATION OF REPRESENTATION WITHOUT COMPENSATION
Counsel for Petitioners certify, pursuant to L. Cv. R. 83.2(g), that they are representing Petitioners without compensation.