No Habeas Jurisdiction at Bagram

by Kenneth Anderson

I’m sure others here at OJ will have more detailed views, but … the U.S. Court of Appeals for the D.C. Circuit has handed down its opinion in Al Maqaleh v. Gates.  Chief Judge David Sentelle’s opinion (joined by Judge David Tatel and Senior Judge Harry Edwards) opens:

Three detainees at Bagram Air Force Base in Afghanistan petitioned the district court for habeas corpus relief from their confinement by the United States military.1 Appellants (collectively “the United States” or “the government”) moved to dismiss for lack of jurisdiction based on § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109–366, 120 Stat. 2600 (2006) (“MCA”). The district court agreed with the United States that § 7(a) of the MCA purported to deprive the court of jurisdiction, but held that this section could not constitutionally be applied to deprive the court of jurisdiction under the Supreme Court’s test articulated in Boumediene v. Bush, 128 S. Ct. 2229 (2008). The court therefore denied the motion to dismiss but certified the three habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b). Pursuant to that certification, the government filed a petition to this court for interlocutory appeal. We granted the petition and now consider the jurisdictional question. Upon review, and applying the Supreme Court decision in Boumediene, we determine that the district court did not have jurisdiction to consider the petitions for habeas corpus. We therefore reverse the order of the district court and order that the petitions be dismissed.

A couple of reactions on a really, really fast read.  First, the opinion does not appear like a big win for either side on its reasoning, rather than result.  It seems nuanced and not at all either, habeas from here to Mars, or no habeas anywhere outside of the territorial US (and Guantanamo).  It seems to hold out the possibility of a different situation reaching a different result – meaning, it does not seem to me that it has clearly removed the federal courts from at least reviewing detention cases worldwide.  Second, it speaks multiple times of “active theatres of conflict” and “zones of conflict” – as a reason for treating Bagram differently; it addresses “all of Afghanistan” as an active theater of conflict.  This follows, of course, from the analysis of different places and Eisentrager, but I wonder whether it signifies in some future case acceptance of the idea that under the laws of war in general armed conflict is geographically defined, including for the purposes that Mary Ellen O’Connell and others have been debating, over targeted killing, for example.  Not clear, I suppose, given that habeas has its own set of considerations not necessarily applicable to the scope of armed conflict as such.  Third, let’s mention, in light of the criticisms of Justice Department lawyers involved in detainee cases, the exceedingly tough government argument is under signature of … Neal Katyal. But this is a really quick read; I could have misread things or got them wrong.

3 Responses

  1. Having been reversed by the Supreme Court several times, the DC Circuit is trying very hard to reconcile all the apparently conflicting rulings in related cases. Since the Supreme Court repeatedly refused to override Eisentrager, they seek to map out the safe middle ground between it and say Boumediene. One conclusion they draw is that no general doctrine can be advanced that is consistent with all the precedents, so whatever rule must exist is found in the application of the specific facts.

    Thus the “zones of conflict” language should not be read to introduce any “bright line” distinction between the application of different types of law in theaters of war. It appears to have been used in this case to say that because Bagram has come under attack recently and rockets could easily hit it tomorrow, that represents one of the criteria for a detention facility that the Supreme Court in Boumediene indicated might bar the application of habeas. They then note, to handle the obvious objection, that if the administration tried to exploit this by transferring prisoners from some location where combat is not active to Bagram in order to escape judicial scrutiny, that transferwould be a factor that would, for that specific case, override and provide access to habeas.

    For everyone who believes that these cases are a question of Black and White, this decision goes a long way toward the principle that we have to make the distinction instead between Forest Green and Kelley Green.

  2. Petitioner Fadi Al-Maqaleh allegedly picked up in Afghanistan in 2003. 
    Redha Al-Najar is a Tunisian citizen who alleges he was captured in Pakistan in 2002.
    Amin Al-Bakri is a Yemeni citizen who alleges he was

    captured in Thailand in 2002. Both Al-Najar and Al-Bakri allege they were first held in some other unknown locationbefore being moved to Bagram.

    I see the logic for Al-Maqaleh.  Al-Najar in Pakistan I can see also (theater of operation) if he had been brought to Bagram from there.  But Al-Najar was sent to some other location and that is not contested before being brought to Bagram.  And Al-Bakri was picked up in Thailand (not contested) AND sent to another location (not contested) before being sent to Bagram  (presumably both not theater of war spaces).  It would seen that at least for Al-Bakri and possibly for Al-Najar, Executive Three Card Monte with detainees did happen and remains very possible in just the manner that was described by the Court as possibly leading it another way.  There inability to imagine that being thought of by the Executive back in 2003 is either a failure of imagination or a failure of advocacy or maybe both.

    But, as an appeals court, they may be hesitant to go there leaving that to be looked at on an appeal to the Supreme Court.  So I think the space is left open for that next decision if the Supreme Court grants cert on this.

    I take the Forest Green and Kelley Green distinction, but I guess I am seeing this as more of a red vs. pink vs. white situation with red as the theater of operations (Al-Maqaleh), pink as the Pakistan to other location to theater of operations (Al-Najar), to white for Thailand to other location to theater of operation in cases of non-Afghan or Pakistani citizenship (Al-Bakri).


  3. Tough case for that circuit.  Sounds like they’re trying to just not get themselves into hot water by ruling too far in any particular direction.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.