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Forgive me for posting this as it is very long. The site from which it comes is restricted and I can't figure out how to link to this document. If we can leave it here it can be linked to in the future.

Below is the complaint filed in federal court by Nick Berg's parents on April 5th, he was released on April 6th. Some say it is a coincidence that he was released the day after the suit was filed. There are too many coincidences in this case.
________________________________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NICHOLAS EVAN BERG, by and through :
MICHAEL S. BERG and :
SUZANNE CAROL BERG, :
as Next Friends of Nicholas Evan Berg, :
1264 Estate Drive :
West Chester, PA 19380 :
:
Petitioners :
:
v. : NO. 04-CV-1497
:
HONORABLE DONALD H. RUMSFELD :
Secretary of Defense :
1000 Defense Pentagon :
Washington, DC 20301 :
:
Respondent :
PETITION FOR WRIT OF HABEAS CORPUS
1. Nicholas Evan Berg, a citizen and resident of the United States of America, is
being held illegally, denied access to legal counsel, and denied access to any court for the
determination of the legality of his detention in violation of his rights protected under the United
States Constitution. His father, Michael S. Berg, and his mother, Suzanne C. Berg, are acting as
his Next Friends and respectfully request that this Honorable Court issue a Writ of Habeas
Corpus.
PARTIES
2. The Petitioner, Nicholas Evan Berg, is an American citizen presently detained and
unlawfully held under the authority of the Respondent by the United States military in Mosul,
Iraq.
3. Petitioners Michael S. Berg and Suzanne Carol Berg are the mother and father of
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Nicholas Evan Berg and are acting as his Next Friends in seeking the issuance of a Writ of
Habeas Corpus based on their inability to communicate with their son, Nicholas Berg, and based
on his illegal and improper detention in Mosul, Iraq.
4. Petitioners Michael S. Berg and Suzanne Carol Berg seek relief as “Next Friends”
pursuant to the requirements of Whitmore v. Arkansas, 495 U.S. 149 (1990), which requires a
“next friend” to provide an adequate explanation why the real party in action cannot appear on
his own behalf and further requires that the “next friends” be truly dedicated to the best
interests of the person on whose behalf they seek to litigate and to demonstrate some
significant relationship with the real party in interest.
5. As the parents of Nicholas Berg, both Michael S. Berg and Suzanne C. Berg are
truly dedicated to the best interests of their son and clearly have a significant familial
relationship with their son, Nicholas Berg, to warrant their filing of the Petition for Habeas
Corpus in an effort to have their son released and returned to the United States of America.
6. In the instant matter, Petitioner Nicholas Berg cannot appear because he is being
detained in Mosul, Iraq, and has been denied the ability to communicate with the Petitioners.
7. Upon information and belief and based on information provided to Petitioners by
representatives of the Federal Bureau of Investigation and the United States Department of
State, Nicholas Berg is currently being detained by the United States military in Mosul, Iraq, and
has not been released, notwithstanding the fact that the Federal Bureau of Investigation has
recommended that he be released from custody.
8. Additionally, the United States Department of State has advised that, because,
Nicholas Berg is currently detained in Mosul, Iraq by the United States military, the United
States Department of State no longer has any authority or power to intervene on behalf of
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Nicholas Berg or to bring him home based on the fact that he had been turned over by the Iraqi
police to the United States military.
9. Petitioner Nicholas Berg cannot sign and verify the Petition because he has not
had contact with his parents, Michael Berg and Suzanne Berg, nor has he had the ability to
confer with counsel. Additionally, Nicholas Berg has neither been permitted to send nor receive
mail and his parents do not even know his specific whereabouts in Mosul, Iraq. Respondent,
and those acting under his authority, direction and control, have forbidden Petitioner from
communicating directly with anyone, including, but not limited to, his parents. Thus, Petitioner
Nicholas Berg is without the means or access to file a petition for a writ of habeas corpus on his
own behalf.
10. Respondent Rumsfeld is the United States Secretary of Defense and, in that
capacity, determines the conditions under which individuals, including, but not limited to, the
Petitioner, Nicholas Berg, are confined and held by United States military forces in, among other
places, military facilities in Mosul, Iraq.
JURISDICTION
11. Petitioners bring this action under and in accordance with 28 U.S.C.A. §§ 2241
and 2242, and invoke this Honorable Court’s jurisdiction under 28 U.S.C.A. §§ 1331, 1651,
2201, and 2202, as well as under the Fourth, Fifth, and Sixth Amendments to the United States
Constitution.
12. This Honorable Court is empowered under 28 U.S.C.A. § 2241 to grant a Writ of
Habeas Corpus and to entertain the Petition filed by Michael S. Berg and Suzanne C. Berg as
Next Friends under 28 U.S.C.A. § 2242.
13. As a cabinet member and as the Secretary of Defense, this Honorable Court has
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jurisdiction over the Respondent, the Honorable Donald H. Rumsfeld.
14. Because the detention of Nicholas Berg is at a United States military facility in
Mosul, Iraq, there is no judicial district in the United States where custody or detention is
occurring; therefore, jurisdiction over this habeas corpus proceeding is premised upon
jurisdiction over the Secretary of Defense in this district.
VENUE
15. Venue is proper in the United States District Court for the Eastern District of
Pennsylvania based on the fact that Petitioner Nicholas Berg, prior to his departure to Iraq,
resided in the Commonwealth of Pennsylvania within the Eastern District, his parents, as Next
Friends, reside in the Eastern District of Pennsylvania, and the Secretary of State, the Honorable
Donald H. Rumsfeld, is subject to the jurisdiction of federal courts located in the Eastern District
of Pennsylvania.
STATEMENT OF FACTS
16. Nicholas Evan Berg is an American citizen who traveled to Iraq for business
purposes and to participate in the reconstruction and rebuilding of that nation and to develop
business opportunities in Iraq.
17. Nicholas Evan Berg is an owner of Prometheus Methods Tower Service, Inc.,
which is a business engaged in the construction, maintenance, and inspection of
communications towers.
18. Petitioner Nicholas Berg was due to return to the United States on Tuesday,
March 30, 2004 at John F. Kennedy International Airport, New York, NY.
19. Prior to that time, Petitioners Michael Berg and Suzanne Berg last communicated
with Nicholas Evan Berg on March 24, 2004 and, as of that date, understood that he was due to
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return to the United States on March 30, 2004.
20. Nicholas Berg never debarked from the airplane that arrived at John F. Kennedy
International Airport on March 30, 2004.
21. Petitioners Michael S. Berg and Suzanne C. Berg were then contacted by the
Federal Bureau of Investigation and were advised that Nicholas Berg was safe but that he was
being detained in Iraq.
22. Specifically, Petitioners were advised that Nicholas Berg had been detained by
Iraqi police in Mosul, Iraq.
23. On information and belief, Petitioner Nicholas Berg was transferred by the Iraqi
police to the United States military.
24. The Federal Bureau of Investigation was involved in investigating and confirming
Nicholas Berg’s identity and to ensure that the individual detained was Nicholas Berg based on a
concern of possible identity theft.
25. On information and belief, and based on communications with the United States
Department of State, Petitioner Nicholas Berg is currently being held by the United States
military at United States military facilities in Mosul, Iraq.
26. Both the Federal Bureau of Investigation and the United States Department of
State have done everything in their power to help the Bergs locate Nicholas Evan Berg and to
provide them with updates as to his health and status.
27. Michael Berg and Suzanne Berg have exhausted all avenues of agency relief and
have been assisted in their efforts by the diligence of the United States Department of State,
the Federal Bureau of Investigation and the Department of Homeland Security. Unfortunately,
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all of these departments and agencies have advised Petitioners that Nicholas Berg is being
detained by the United States military in Mosul, Iraq and that they have no other information to
provide, such as the basis for his detention.
28. In fact, the Federal Bureau of Investigation has recommended to the United
States military that Nicholas Berg be released from detention; as of the date of this Petition,
however, Nicholas Berg is still being detained by the United States military and no such release
has been forthcoming.
29. At no time have any charges or indictments been filed against Nicholas Berg
asserting or alleging any illegal or criminal conduct in any federal court or tribunal.
30. The Petitioners, Michael Berg and Suzanne C. Berg, have not spoken with their
son since March 24, 2004, when they last understood that he was due to return to the United
States on March 30, 2004, nor has he been permitted to contact them.
31. Upon information and belief, once the Iraqi police transferred custody of Nicholas
Berg to the United States military, Nicholas Berg has been, and continues to be, detained at a
United States military base in Mosul, Iraq. Petitioners, however, have never been provided any
specific information as to the particular military base or facility where Nicholas Berg has been
detained in Mosul, Iraq, nor have they been advised, after diligent efforts to obtain such
information, as to who the specific custodian of Nicholas Berg is.
32. On information and belief, the military base where Petitioner, Nicholas Berg, has
been detained has limited access restricted to members of the military and other specifically
designated individuals.
33. Petitioners Michael Berg and Suzanne C. Berg have neither been allowed to visit
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with, nor speak to, their son, Nicholas Berg.
34. No member of the United States Attorney’s Office for any federal district has ever
advised the Petitioners, Michael Berg and Suzanne C. Berg, that any indictment has been
returned that charges Nicholas Berg with any criminal conduct. On information and belief, no
complaint has ever been filed in any United States District Court charging Nicholas Berg with
any criminal conduct.
35. As of the date of this Petition, Nicholas Berg has not been charged with any
offense nor have the Petitioners, Michael Berg or Suzanne C. Berg, ever been advised that any
criminal charges are contemplated or pending.
CLAIMS AS TO THE UNLAWFULNESS OF PETITIONER’S DETENTION
FIRST CLAIM FOR RELIEF
(DUE PROCESS – FOURTH, FIFTH AND SIXTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION)
36. The Petitioners, Michael S. Berg and Suzanne C. Berg, incorporate by reference
the averments contained in paragraphs 1 through 35 above as though fully set forth herein at
length.
37. It is a violation of the Due Process Clause of the Fifth Amendment to the United
States Constitution to hold and detain an American citizen without giving notice to that citizen of
the basis for his detention.
38. Specifically, the Non-Detention Act, 18 U.S.C.A. § 4001, provides that “no citizen
shall be imprisoned or otherwise detained by the United States except pursuant to an Act of
Congress.” See 18 U.S.C.A. § 4001 (West 2004).
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39. By the action described above, Respondent, acting under color of law, and acting
through his duly appointed agents, representatives and subordinates, has violated and
continues to violate the Fourth, Fifth, and Sixth Amendments to the United States Constitution.
See e.g. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“Freedom from imprisonment – from
government custody, detention, or other forms of physical restraint – lies at the heart of the
liberty that the [Due Process] Clause protects...And this Court has said that government
detention violates that Clause unless the detention is ordered in a criminal proceeding with
adequate constitutional protections...”); See Ex Parte Milligan, 71 U.S. 2, 123 (1866) (“[C]itizens
of states where the courts are open, if charged with a crime, are guaranteed the inestimable
privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of
criminal justice; it is not held by sufferance and cannot be frittered away on pleas of state or
political necessity.”).
40. There is no authority to detain an American citizen without a finding of probable
cause. See e.g. United States Ex Rel. Toth v. Quarles, 350 U.S. 11, 14 (1955) (an “assertion of
military authority over civilians cannot rest on the President’s power as commander-in-chief, or
any theory of martial law”).
41. Hence, the detention of Nicholas Berg, by, at the direction of, or pursuant to the
authority of the Respondent is an illegal detention and violates Nicholas Berg’s constitutional
rights and freedoms.
SECOND CLAIM FOR RELIEF
(SUSPENSION OF THE WRIT)
42. The Petitioners, Michael S. Berg and Suzanne C. Berg, incorporate by reference
the averments contained in paragraphs 1 through 41 above as though fully set forth herein at
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length.
43. To the extent any order or mandate by the Respondent, or any person acting
under the authority of or the direction of the Respondent, calls for or mandates the detention of
Petitioner Nicholas Berg, and attempts to disallow any challenge to the legality of his detention
by way of habeas corpus, such order or mandate and its enforcement constitutes an unlawful
Suspension of the Writ, in violation of Article I of the United States Constitution.
THIRD CLAIM FOR RELIEF
(VIOLATION OF POSSE COMITATUS)
44. The Petitioners, Michael S. Berg and Suzanne C. Berg, incorporate by reference
the averments contained in paragraphs 1 through 43 above as though fully set forth herein at
length.
45. The Posse Comitatus Act, 18 U.S. C. § 1385, prohibits Army and Air Force
personnel from participating in civilian law enforcement activities. Members of the Army, Navy,
Air Force and Marine Corps are prohibited from participation in civilian law enforcement
activities by virtue of 10 U.S. C. § 375 and as a matter of Department of Defense policy and
Department of Defense Directive 5525.5(C).
46. As the courts of the United States are open and no state of martial law exists, it
is unlawful for Nicholas Berg, an American citizen and resident of the Commonwealth of
Pennsylvania, to be held by the military in Mosul, Iraq, and be deprived of his right to a hearing
in federal courts or tribunals in the United States of America.
47. The Federal Bureau of Investigation, as the agency of the Department of Justice
vested with the power and authority to enforce the laws of the United States, has specifically
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recommended the release of Nicholas Berg from detention by the United States military.
48. The failure and/or refusal by the United States military to release Nicholas Berg
from detention, notwithstanding the Federal Bureau of Investigation’s recommendation of
release, violates the Posse Comitatus Act and constitutes an unlawful exercise by military
personnel of civilian law enforcement authority.
PRAYER FOR RELIEF
WHEREFORE, the Petitioners, Nicholas Berg, Michael S. Berg and Suzanne C. Berg,
respectfully pray for relief as follows:
1. Grant the Petitioners, Michael S. Berg and Suzanne C. Berg, Next Friend status as
Next Friend of their son, Nicholas Berg;
2. Order Respondent to permit counsel and Petitioners to meet and confer with
Nicholas Berg;
3. Order Respondent to permit Nicholas Berg to receive a copy of this Petition;
4. Order and declare that Nicholas Berg is being held in violation of the Fourth, Fifth
and Sixth Amendments to the United States Constitution;
5. To the extent Respondent contest any material factual allegations in this Petition,
that this Court schedule an evidentiary hearing at which the Petitioners may
adduce proof in support of their allegations;
6. Order that Petitioner Nicholas Berg be released from Respondent’s unlawful
custody and be returned to the United States of America;
7. In the event that it is determined that venue does not properly lie in the United
States District Court for the Eastern District of Pennsylvania, that this matter be
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transferred to the appropriate United States District Court; and
8. Such other relief as this Honorable Court may deem necessary and appropriate.
Respectfully submitted,
Dated:_________________ GOLLATZ, GRIFFIN & EWING, P.C.
By: __________________________________
Alfred A. Gollatz, Esquire
Attorney I.D. No. 17167
Paul A. Nappi, Esquire
Attorney I.D. No. 57497
213 W. Miner Street
P.O. Box 796
West Chester, PA 19381-0796
610-692-9116
VERIFICATION
I, Michael S. Berg, as father and Next Friend of Petitioner, Nicholas Evan Berg, hereby
verify under the pain and penalty of perjury that the facts set forth in the foregoing Petition for
Writ of Habeas Corpus are true and correct, to the best of my knowledge, information and
belief.
Dated: ________________ ________________________________
Michael S. Berg, as Next Friend for Nicholas Evan Berg,
Petitioner
VERIFICATION
I, Suzanne C. Berg, as mother and Next Friend of Petitioner, Nicholas Evan Berg, hereby
verify under the pain and penalty of perjury that the facts set forth in the foregoing Petition for
Writ of Habeas Corpus are true and correct, to the best of my knowledge, information and
belief.
Dated: ________________ ________________________________
Suzanne C. Berg, as Next Friend for Nicholas Evan
Berg, Petitioner