Is Bagram the New Guantanamo? And why did the US adopt effects-based extraterritorial jurisdiction when our partners did not?

Roger raises an important issue with regard to the landmark 2008 decision in Boumediene v. Bush . Is that case in effect limited to its facts because of the unique qualities of Guantanamo? Or does the logic extend elsewhere? The obvious focus going forward is Bagram Air Base in Afghanistan. Bagram holds many more detainees than does GTMO and, given the continuing war against al Qaeda and the planned closure of GTMO, is likely to have new inmates arriving in the future.

The issue of Boumediene’s applicability to Bagram recently arose (as my book was going to print) in the case of Maqaleh v. Gates. (Those wanting a longer discussion of the case can see my short essay in the ASIL Insights series, at http://www.asil.org/insights090618.cfm). The bottom line is that at least one federal judge has applied the Boumediene framework to Bagram and found that the constitutional right to habeas does apply to at least some, non-Afghani, detainees held there. Animating the decision was the concern raised by the majority in Boumediene that the executive not be given the ability (and incentive) to evade constitutional strictures simply by choosing the location of detention. This, of course, was Hugo Black’s prescient concern in his dissent in Johnson v. Eisentrager, the 1950 case that was relied upon so heavily by the Bush Administration in the years after 9/11.

Let me also briefly note Bill Dodge’s argument about the rise of effects-based extraterritoriality. The presence of foreign assets in the US is definitely a key factor in the success of this approach, and that presence is in turn a function of the huge American market. So I think Bill is right to highlight this, and probably I should have underscored it even more. However, foreign assets have been present in the US for a long time, so (as Bill is aware) this is not really a primary motivator behind the creation of effects jurisdiction; it is instead a permissive cause. 

Does this factor explain why other nations, like the UK, trailed the US in adopting this approach to extraterritoriality? The answer would require more empirical work, but it was certainly true that there was substantial foreign investment in places like Britain and France. To be sure, the US was a major player in the global economy in the postwar era. Yet within a few years time the devastated economies of Europe were producing again and they recovered their footing fairly quickly. So I have some doubts about whether this factor was really significant.