Boumediene order’s impact spreads
on Jul 18, 2007 at 1:03 pm
The Supreme Court’s surprise agreement on June 29 to rule again on the legal rights of detainees held by the U.S. military is having a widening impact, on Wednesday reaching a case involving a military prison run by U.S. forces in Afghanistan. The case of Fadi Al Maqaleh v. Gates, et al. (District Court docket 06-1669) raises a number of issues different from those involving detainees at Guantanamo Bay, Cuba — especially, whether U.S. law differs as it applies to a prison at a military facility that is in or near an actual combat zone or battlefield. The government insists U.S. courts have no power to hear cases from such prisoners.
On Wednesday, U.S. District Judge John D. Bates denied, for the time being, a government plea to dismiss the habeas plea of Al Maqaleh, a Yemeni national being held at Bagram Airfield, about 40 miles north of Kabul. According to the detainee’s lawyers, Al Maqaleh has been held at Bagram for moe than five years, and he is one of perhaps 500 captives being held there.
Judge Bates in the three-page order (found here) cited the Supreme Court’s decision to hear the Boumedine v. Bush and Al Odah v. U.S. cases, noting that among other questions the Justices will consider is “whether aliens captured and detained by the United States outside of the United States have a right under the Constitution or at common law to challenge their detentions via habeas corpus petitions.”
The judge added: “Putting to one side what may ultimately be significant differences between the Guantanamo detainees and those confined at Bagram, the answer to this question is equally relevant here.” Even if it turns out that federal courts have lost their authority to hear habeas cases under federal statute, the District Court would still need to address Al Maqaleh’s claim “that he enjoys constitutional or common law right to habeas review,” Bates wrote.
A decision in the case before him, Judge Bates said, should await the coming Supreme Court decision. It is possible, he added, that the Supreme Court may issue a broad decision in favor of detainees, “one whose reasoning applies not just to Guantanamo, but to Bagram and other locations as well….[T]he Supreme Court’s decision in Boumediene is likely directly to affect the outcome of this case.”
The judge thus denied the government’s motion to dismiss, “without prejudice to refiling” after the Supreme Court has ruled. He noted that one of his District Court colleagues, Judge Ellen S. Huvelle, on July 5 had taken a similar action in a Guantanamo detainee case based on the Supreme Court’s action. Judge Huvelle has similarly refused to dismiss five other Guantanamo cases.
Breifing had been completed in April on the government’s motion to dismiss the Al Maqaleh petition — a motion that was based in part upon the D.C. Circuit Court’s ruling on Feb. 20 in the Boumediene and Al Odah cases — the ones that the Supreme Court has now agreed to review in cases docketed there as 06-1195 and 06-1196.
In the course of that briefing, a gulf developed between Al Maqaleh’s lawyers and government attorneys about the nature of the military prison at Bagram Airfield, and whether there were legally significant differences..The government has made much of the fact that Bagram is used in the ongoing military battles against Al Qaeda and Taliban forces in Afghanistan, putting it directly “in a theater of war,” and has argued that this puts the prisoners’ status there beyond the reach of U.S. courts. Allowing U.S. courts to review claims by Bagram detainees, the government has contended, has the potential to expand those courts’ jurisdiction “to cover thousands, if not tens of thousands, of enemy combatants anywhere in the world in both current and future armed conflicts.” Moreover, the government has asserted that the U.S. does not have the same legal rights at Bagram as it does at the Naval base in Guantanamo Bay, Cuba.
Detainees’ lawyers have countered that the prison operation at Bagram has little if anything to do with actual combat zone activity in the region, and that the U.S. may have even more control over Bagram than it does over Guantanamo, and thus U.S. courts have clear authority to hear challenges by Bagram detainees. The Supreme Court ruling in 2004 in Rasul v. Bush, finding a right by Guatnanamo detainees to challenge their prolonged confinement, “applies with equal forceto aliens held at Bagram as it does to aliens held at Guantanamo,” the detainees’ counsel have responded. ” It is far from clear, ” they added, that the military’s claimed reasons for holding Al Maqaleh “related to the war in Afghanistan.”
There also is a significant dispute between the parties about whether Bagram detainees even get the minimal review of their “enemy combatant” status that Guantanamo Bay detainees get through military “Combatant Status Review Tribunals.” But the government has countered that it has a similar review procedure under way at Bagram.
