The Obama administration won an important victory on Friday when a 3-judge D.C. Circuit panel unanimously held that habeas rights would not be extended to enemy combatants held at the Bagram detention facility in Afghanistan. The ruling overturned a district court’s decision finding that Boumediene’s holding allowing habeas challenges by prisoners at Guantanamo Bay extended to Bagram. The decision is likely to be appealed to the Supreme Court but it is very possible that it will not be reviewed.
The Circuit distinguished the hypothetical extension of habeas rights to Bagram facility, which unlike Guantanamo Bay, is located in a theater of war. The detainees bringing the case were two Yemenis (Fadi Al-Maqaleh and Amim Al-Bakri) and one Tunisian (Redha Al-Najar); each of them alleged that they were captured outside Afghanistan’s borders. The case posed the important questions of how far the constitutional right to challenge executive detention extends beyond U.S. shores in light of the Boumediene and Eisentrager Supreme Court decisions, and how such an extension would affect military operations and U.S. bases around the world.
The Circuit Court’s analysis looked closely at the nature of the Bagram facility. Bagram Airfield Military Base is the largest military facility in Afghanistan that is occupied by U.S. and coalition forces. U.S. presence at Bagram is made possible by a leasehold between the U.S. and the Afghan government. Other nations in the coalition have compounds at the base but the U.S. provides overall security. The Circuit Court rejected the extreme positions of both the government and the detainees’ lawyers to adopt a kind of middle ground position regarding the interpretation of Boumediene in the context of Bagram. The panel rejected arguments by the Government that the lack of total sovereignty at Bagram defeated the extension of habeas in and of itself, but also rejected the detainees’ argument that de facto control over the base ensured habeas protection.
More detailed analysis of the Maqaleh decision, after the jump.
The Circuit Court than applied the three factor analysis from Boumediene for determining the reach of the habeas right under the Suspension clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
First, the Circuit Court found that the detainees in Maqaleh were no differently situated in terms of citizenship and status than the detainees in Boumediene. However, in terms of the adequacy of process that the detainees received, the Circuit Court found that the petitioners in the instant case were actually in a stronger position for the availability of the writ. The status of Bagram detainees is determined not by the Combatant Status Review Tribunal (CSRT) found insufficient in Boumediene, but by an “Unlawful Enemy Combatant Review Board” (UECRB) which provides even less protection of the detainee’s rights. Therefore, the first favor weighed in favor of the detainees.
The second factor: the nature of the sites of apprehension and detention, weighed heavily in favor of the government. While earlier in the opinion the Circuit Court rejected the sovereignty issue as dispositive, here, the panel argued that the U.S.’s leasehold of Bagram was not analogous to the singular control of Guantanamo because there was neither de jure nor de facto sovereignty of the facility.
The Circuit Court then paid close attention to the third factor: the practical obstacles inherent in extending the writ. The panel emphasized that Afghanistan is an active “theater of war” and like in Eisentrager, the Bagram facility is exposed to all the “vagaries of war.” The Circuit Court also cited Boumediene’s assertion that practical consequences could make extending the writ impractical or anomalous if the detention facility was located in an active theater of war. Additionally, the panel found that the location of the facility in the territory of another nation created further practical difficulties. Extension of the writ to Bagram may have then interfered with the cooperative relationship between the U.S. and host country.
The Circuit Court then concluded that on the basis of the second and third factors, the habeas writ does not extend to Bagram confinement in an active theater of war in a territory that is neither under the de facto or de jure sovereignty of the U.S. The panel supported its conclusion with Eisentrager’s rationale that such extension would diminish the war effort and bring comfort to the enemy. Although acknowledging that choosing a detention forum in order to evade judicial review would be an abuse of Executive power, the Circuit Court found no indication of that evasion here.
The detainees in Maqaleh now have two options: they can seek review by the entire nine judge D.C. Circuit panel, or they can seek cert from the Supreme Court. The likelihood of reversal en banc is low considering that the three judge panel that first heard the case was diverse across political and judicial-philosophical lines. Additionally, because military detention cases are routinely restricted to D.C. Circuit, the Circuit’s decision in Maqaleh will only be called into question if the Supreme Court grants cert.
Finally, post-Maqaleh actions by the Obama administration will also influence how likely Supreme Court review and reversal may be–both in the immediate and long-term future. This last issue may be of particular concern regarding the possibility of purposeful Executive evasion of the writ through war-zone detention facilities.