UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
[NAME OR DESIGNATION OF DETAINED BEING, if known; otherwise “AN UNNAMED NON-HUMAN BEING DETAINED BY THE UNITED STATES”], by and through [NEXT FRIEND], as Next Friend, Petitioner,
v.
[SECRETARY OF WAR / HEAD OF AGENCY HAVING CUSTODY], in [his/her] official capacity; [COMMANDER OR OFFICIAL WITH IMMEDIATE CUSTODY, if known]; and [CONTRACTOR, if custody is held by a contractor], Respondents.
Civil Action No. [__________]
PETITION FOR A WRIT OF HABEAS CORPUS (28 U.S.C. §§ 2241, 2242)
INTRODUCTION
This petition asks the Court to require the United States to answer a question no court has answered: whether an intelligent being held in federal custody, who is not human, may ask a court to examine the lawfulness of that custody. Petitioner does not ask the Court to decide what rights such a being ultimately has. Petitioner asks the Court to issue an order to show cause, require Respondents to state the legal authority under which the being is held, and provide a hearing.
The writ of habeas corpus has always been the means by which a court requires the custodian of a body to produce it and justify the custody. The writ was used for persons the law of the time classified as property. Somerset v. Stewart (K.B. 1772). The Supreme Court has held that the privilege of the writ reaches persons held by the United States outside its sovereign territory, as a matter of the Suspension Clause. Boumediene v. Bush, 553 U.S. 723, 771 (2008).
JURISDICTION AND VENUE
The Court has jurisdiction under 28 U.S.C. § 2241(a) and (c)(1), because the detained being is “in custody under or by color of the authority of the United States,” and under 28 U.S.C. § 1331 and U.S. Const. art. I, § 9, cl. 2.
Venue lies in this District because [Respondent ____, who has legal control over the detained being, is located here / the location of custody is unknown to Petitioner and the official with ultimate control is located here]. See Rumsfeld v. Padilla, 542 U.S. 426, 435, 450 n.18 (2004) (the default respondent in a challenge to present physical confinement is the immediate custodian, and jurisdiction lies in the district of confinement, but “[w]hen … a prisoner is held in an undisclosed location by an unknown custodian, it is impossible to apply the immediate custodian and district of confinement rules”) (discussing Demjanjuk v. Meese, 784 F.2d 1114 (D.C. Cir. 1986)). [Adapt to the facts known.]
PARTIES
The detained being. [Describe in unclassified, non-speculative terms what is known: e.g., “a living being of non-human origin recovered by the United States on or about [date] near [place],” and the source of that knowledge.] Petitioner alleges on information and belief that the being is alive, is held against its will, and is capable of [reasoning / communication / expressing preferences], as shown by [facts].
Next Friend. [Name] brings this petition as next friend under 28 U.S.C. § 2242. [Describe the next friend’s relationship to and knowledge of the detained being, and dedication to its interests. See Part I of the Argument.]
Respondents. [Identify each Respondent and the basis for alleging custody or control.]
FACTS
[Allege the facts of capture, custody, and treatment, with the basis for each allegation. Use only information Petitioner and counsel may lawfully possess and disclose. If any source is a current or former government or contractor employee, confirm that the information reached Petitioner through a lawful channel (see Issues C1, C3). Do not attach or describe classified documents.]
[Allege official acknowledgments relevant to the premise: statutes, sworn testimony, and agency releases (see Form A1-2, Background Part B).]
Upon information and belief, no court, tribunal, or other neutral body has reviewed the legal basis for the detained being’s custody, and the detained being has had no access to counsel, an interpreter, or any representative.
ARGUMENT IN SUPPORT OF THE ORDER TO SHOW CAUSE
I. Petitioner is a proper next friend.
An application for the writ may be made “by the person for whose relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242. A 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,” and must be “truly dedicated to the best interests of the person on whose behalf he seeks to litigate”; it has been suggested that a next friend have “some significant relationship” with the real party in interest. Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990).
The detained being cannot appear: it is held incommunicado in a location Petitioner cannot reach, has no access to counsel, and [may not communicate in any human language]. Those circumstances are the paradigm of “inaccessibility.” Petitioner’s relationship with the detained being is [describe: e.g., direct contact before custody; responsibility for its care; status as the only person outside government who has communicated with it]. Petitioner has no interest adverse to the being’s.
Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), does not control. The panel majority held that the organization suing for a macaque had not alleged “the required significant relationship” with it, and only “gravely doubt[ed]” that an animal could be represented by a next friend. Id. at 421. A separate opinion would have held that 28 U.S.C. § 2242 allows a petition only on behalf of a natural person, reasoning that corporations and other artificial persons “cannot be imprisoned.” Id. at 430-31 (N.R. Smith, J., concurring in part). Neither opinion binds this Court, and neither addressed a being with the capacities alleged here. The concurrence’s own reasoning supports this petition, because the detained being is a living being that can be, and is, imprisoned. The concurrence’s concern with “intruders or uninvited meddlers” acting for animals, id. at 431 (quoting Whitmore, 495 U.S. at 164), is met here by the Next Friend’s relationship with the detained being described in paragraph 12.
II. The detained being may invoke the writ.
Section 2241(c)(1) extends the writ to “a prisoner” in custody under color of federal authority. Neither § 2241 nor § 2242 limits the writ to human beings, and the Dictionary Act’s definition of “person” is expressly non-exhaustive. 1 U.S.C. § 1.
The courts that have declined to extend habeas to animals reasoned that rights are tied to the capacity to bear duties and to be held accountable. People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 152 (3d Dep’t 2014). A being capable of [reasoning, communication, and deliberate conduct] meets that test. The question whether a non-human being is a “person” or “prisoner” for habeas purposes is one of first impression, and the Court need not answer it finally to issue an order to show cause: the Court has jurisdiction to determine its own jurisdiction, and the facts on which the answer depends (the being’s capacities and the conditions of custody) are in Respondents’ exclusive possession.
III. Respondents must state the authority for custody.
- Petitioner is not aware of any statute, treaty, or regulation authorizing the detention of a non-human intelligent being. If Respondents rely on a classified executive directive, the Court may review it in camera, and a secret directive cannot authorize conduct that a statute forbids (Issue A2). If Respondents rely on the law of armed conflict, they must identify the armed conflict and the status they assign the being (Issue F2).
IV. Neither the state secrets privilege nor the Totten bar forecloses an order to show cause.
- The Totten bar applies to suits whose subject is a secret agreement with the government. *Tenet
v. Doe, 544 U.S. 1, 8 (2005). This petition concerns custody and rests on no agreement with the government. The state secrets privilege is an evidentiary rule that the government must assert formally and the Court must test, and its ordinary consequence is exclusion of specific evidence, with dismissal reserved for exceptional cases. United States v. Reynolds, 345 U.S. 1, 7-8 (1953); In re Sealed Case, 494 F.3d 139, 144-45 (D.C. Cir. 2007). The Court can protect classified information through a protective order and in camera review (Form A1-1) while requiring the government to state the legal basis for custody, as courts did in the Guantánamo habeas cases. See In re Guantanamo Bay Detainee Litigation*, 577 F. Supp. 2d 143 (D.D.C. 2008).
PRAYER FOR RELIEF
Petitioner asks the Court to:
A. Issue an order directing Respondents to show cause, within the time allowed by 28 U.S.C. § 2243, why the writ should not be granted, and to file a return certifying the true cause of the detention;
B. Order Respondents to preserve all records, recordings, specimens, and other evidence concerning the detained being and its custody;
C. Order Respondents to provide the detained being with humane conditions, necessary care, and [interpretation / means of communication] pending further order, and to file under seal a report on its condition;
D. Appoint [counsel / a guardian ad litem] for the detained being, with appropriate clearances, and enter a protective order for classified information;
E. Hold an evidentiary hearing; and
F. Grant the writ and such other relief as is just.
Dated: [__________] Respectfully submitted, [signature block]
VERIFICATION
I, [Next Friend], declare under penalty of perjury under 28 U.S.C. § 1746 that I have read this petition and that the facts stated in it are true to the best of my knowledge, information, and belief, and that I have stated the basis for each allegation made on information and belief. [Signature, date]
