No Habeas Jurisdiction at Bagram
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.