Quick appeal set on Bagram
on Jun 2, 2009 at 4:25 pm
A federal judge has put on hold and cleared the way for a swift appeal by the Obama Administration on whether more than 600 detainees being held by the U.S. military in Afghanistan have any legal rights in U.S. courts. U.S. District Judge John D. Bates, in an 11-page ruling dated Monday, agreed not to put into effect now an April 2 decision giving three detainees there a chance to challenge their continued confinement in his Court. He also gave permission for a prompt appeal to the D.C. Circuit Court. The lead case is Maqaleh v. Gates (06-1669).
The case will give the Circuit Court the opportunity to decide whether the Supreme Court’s decision last June in Boumediene v. Bush, giving detainees at Guantanamo Bay a right to contest their captivity, extends to detainees now held at the Bagram airbase outside Kabul, Afghanistan. Interpreting Boumediene, Judge Bates found that a U.S. court does have the authority to hear a habeas challenge by a Bagram detainee if he was not an Afghan citizen, was not captured in Afghanistan, and has been held without any court review of his situation. Denying them such a right, Bates concluded, would be unconstitutional.
Under federal law, a pre-trial appeal — that is, one that goes to a higher court before a final decision emerges in a trial court — is allowed only if the appeal would involve a decisive legal issue about which there is a difference of opinion, and if an immediate appeal would help move the dispute toward a conclusion.
In these cases, Bates said, his ruling does involve a controlling legal question. On the prospect for a difference of opinion, the judge said he believes he decided the habeas right correctly, but “given the novelty of the issues, courts could reasonably differ” on how to apply the Supreme Court’s Boumediene decision to cases outside of the Guantanamo Bay setting of that decision. He noted, though, that no other judge in the District Court presently has any Bagram cases, so there is no chance of a disagreement at that level.
On the final point — whether a prompt appeal would move the case toward a decision — Bates said other Bagram detainees may file challenges to their imprisonment, and it could be better for an appeal to proceed now rather than after cases at the trial level proceed to a conclusion. “These cases present the kind of extraordinary jurisdictional issue suitable” for an appeal now, the judge ruled.
In putting his April decision on hold while the government appeal goes ahead, Judge Bates said the Bagram cases meet the test for a stay. The cases raise basic issues under the Constitution that are serious and deserving of an answer. He also said that letting the cases move on in District Court to the point of gathering information could divert military resources from “core missions in Afghanistan,” an active zone of war.
He noted the Administration’s promise to seek a rapid review of the dispute in the Circuit Court. Whether the cases actually are expedited at that level, however, is up to the Circuit Court, he said, so that factor does not support the government claim that an appeal now would not add greatly to the delay the detainees face with their cases put on hold. Detainees, in fact, face definite harm — further detention — if a stay is granted, the judge found.
But, on balance, he said, a stay of his ruling during an appeal is justified. “These are extraordinary cases of significant national and international interest…At stake are separation of powers considerations, the President’s authority to wage war abroad free from judicial scrutiny, and the constitutional rights of certain aliens detained abroad indefinitely by the United States.”
All of the factors except the seriousness of the issues at stake cancel each other out, and that factor works in favor of the government’s plea to allow the appeal to go forward during a stay of his April ruling, Bates said.
