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Major extension of Boumediene

In one of the most significant sequels to the Supreme Court’s ruling last June on the rights of terrorism suspects held by the U.S. military, a federal judge decided Thursday that the ruling protects the rights of at least some of the detainees the U.S. is holding at Bagram air base outside of Kabul, Afghanistan.  U.S. District Judge John D. Bates’ opinion is here, and an order is here.  (The lead case is Al Maqaleh, et al., v. Gates, et al., District docket 06-1669).

A part of the ruling also raised the prospect that, no matter where in the world the U.S. government chose to set up a detention site, prisoners held there might gain legal rights to challenge their captivity, so long as the U.S. had sufficient control of the site.

The decision is the most important setback in detainee matters so far for the new Obama Administration, which had told Judge Bates that it would follow the Bush Administration view that the prisoners the U.S. holds in Afghanistan have no legal rights they can claim in U.S. courts — including any constitutional claim to review by a federal habeas court.

The ruling, though, applied to only three of the Bagram detainees.  (There reportedly are more than 600 there now; the judge said his ruling would affect “only a limited” group at Bagram, but did not give a specific number.) The judge cited as a key fact for each of those three that they were all captured outside Afghanistan and then transferred to Bagram “for detention now exceeding six years.”  None of those three is an Afghan citizen.  For a fourth, who is an Afghan citizen, the judge said that could be “enough to tip the balance” against his claim for habeas relief.

“Although it may seem odd that different conclusions can be reached for different detainees at Bagram,” the judge wrote in a 53-page opinion, it was his view that this “is the predictable outcome” of the formula, to be used detainee-by-detainee, that the Supreme Court mandated in its ruling last June in Boumediene v. Bush.

The Boumediene decision applied at the time only to detainees held at Guantanamo Bay, Cuba.  The Supreme Court has not yet confronted any claim to legal rights by any Bagram prisoner.

The specific result of Judge Bates’ ruling was that the Administration’s plea to dismiss the habeas petitions of the three individuals was denied.  That would set the stage for a review, by a District Court judge in Washington, of their plea for release. Bates will consider the cases of Fadi al Maqaleh, a Yemeni national, and Redha al-Najar, a Tunisian.  Judge Ellen Segal Huvelle, who has before her the habeas petition of the third individual covered by the Bates ruling — Amin al Bakri, a Yemeni, will proceed with that case.

Bates did not dismiss outright the case of the Afghan citizen involved — Haji Wazir. He ordered further briefing on a key constitutional issue about Congress’ power to strip the habeas rights of terrorism  prisoners after having authorized their designation as “enemy combatants” — a test, in fact, of the constitutionality of Congress’ 2006 law that sought to take away the habeas rights of detainees worldwide, including at Bagram.  (That issue is discussed further, in the concluding paragraphs of this post, below.)


Judge Bates’ decision ultimately rests on the same constitutional basis as the Supreme Court’s Boumediene decision: Congress’ nullification of the habeas rights of detainees was invalid under the Suspension Clause, which severely limits the situations in which habeas rights can be taken away.  Just as the Boumediene decision cleared the way for more than 200 Guantanamo detainees to challenge their confinement in federal courts, the Bates decision in Al Maqaleh does the same for the three Bagram prisoners.  Neither ruling, as issued, settled the final outcome of any of those cases; outcomes must await sometimes lengthy proceedings in District Courts.

The Bagram detainees, according to Judge Bates, “are virtually identical to the detainees in Boumediene”— foreign nationals captured overseas and taken to another country for detention. The judge also found that the military’s justification for holding them was determined by a process that  “is inadequate and, indeed, signfiicantly less than” those at Guantanamo had received.  And he concluded that the U.S. military’s control over Bagram “is not appreciably different than at Guantanamo.”

While Bagram is “located in an active theater of war,” and Guantanamo was not, Bates said that that may pose some “practical obstacles” to court review of their cases.  But, he added, “those obstacles are not as great” as government lawyers claimed, are “not insurmountable,” and, anyway, “are largely of the Executive’s choosing” by shifting the prisoners from elsewhere to Bagram.

The four individuals involved in the Al Maqaleh ruling have been designated by the U.S. military at Bagram as “enemy combatants.”  The Obama Administration told federal judges last month that it is dropping that designation for terrorism suspects being held, but it said then that it was doing so only as to those held at Guantanamo.  Thus, Judge Bates concludes that, “for detainees at Bagram,” the Administraiton “apparently adheres to the definition of ‘enemy combatant'” that the former Bush Administration had spelled out for all detainees.

Each of the four Bagram prisoners disputes that they are “enemy combatants.”  Al Maqaleh claims he was captured outside of Afghanistan, but does not say where, the judge noted. Al-Najar was captured in Pakistan.  Al Bakri was seized in Thailand.  And Wazir was captured in Dubai in the United Arab Emirates.

The Bates opinion provides the most detailed examination yet by a lower court handling detainee cases of the scope and meaning of the Supreme Court’s Boumediene decision.

The judge concluded that Boumediene was, in fact, a decision limited to Guantanamo prisoners, and was not a sweeping nullification of all of the 2006 Military Commission Act provision ending habeas rights of all terrorism suspects no matter where captured or held.  Thus, he said, the Supreme Court did not reject Congress’ action “worldwide.”

In fact, the judge remarked, none of the four major Supreme Court rulings, beginning in 2004, on detainees’ rights during the”war on terrorism” dealt with any site of detention other than Guantanamo. As a result, he said, the law at issue — the MCA’s Section 7 — continues to take away District Court authority to rule on habeas claims by those at Bagram.

Without that legal basis for relief, he added, the Bagram prisoners must “look to the constitutional right to habeas corpus as protected by the Suspension Clause.”   This then laid the basis for the judge to confront the constitutionality of the suspension of the habeas writ for at least some at the Afghan base, and to draw his conclusions by applying what he called “a new framework” that the Supreme Court constructed in Boumediene.

In that framework, he noted, the Court said “at least three factors” count — first, the citizenship and prisoner status of the detainee and the adequacy of the process that led to a decision to hold that prisoner; second, the nature of the site of capture and of detention, and, third, “practical obstacles”in deciding whether a prisoner is entitled to file for habeas.

Those inquiries, the judge said, are not to be weighed for all Bagram detainees as a group, but for each individual detainee, one at a time.  To opt for an all-Bagram rule, the judge said, would give the Executive Branch the opportunity “to switch the Constitution on or off at will,” just by “deciding who will be held where.”  Bates noted that the Supreme Court in Boumediene had warned against “manipulation” by Executive Branch officials.  “The Judiciary — not the Executive Branch — must decide when and where the Suspension Clause applies,” he wrote, harking back to Marbury v. Madison in 1803.

Bates said there was an additional, implied factor: how long a detainee is held without “adequate review” of the continuing confinement.  The judge said that the Supreme Court was at least partly motivated in Boumediene “by the prospect of indefinite Executive detention without judicial oversight.”

The judge found “the most fertile ground for inquiry” the process by which the U.S. military has decided to hold terrorism suspects in prolonged confinement.  That process, he said, must be “robust” in order “to ensure that only detainees who pose the kind of threat that warrants detention are designated” for confinement.

At Bagram, the judge concluded, the detention decision is done through a process that is even “less comprehensive” and is “more error-prone” than the process the Supreme Court in Boumediene struck down for detainees at Guantanamo.

The opinion, in examining other factors in the Suspension Clause analysis, found very extensive U.S. control over the detention facility at Bagram air base, and rejected most of the government’s objections that extending habeas to some prisoners there would be highly impractical in such a war zone facility.  (The judge left for later a decision on whether some detainees at Bagram will be able to meet there with habeas lawyers from the U.S.)

Balancing all of the factors, Bates found that three of the Bagram prisoners were entitled to pursue their habeas challenges.  Congress’ suspension of the habeas writ as to them, he ruled, is unconstitutional.

But one practical obstacle the government had cited did find support from Judge Bates — the argument that U.S. court review of habeas pleas by Bagram prisoners who are Afghans could cause “friction” with the Afghan government.  The judge found that the U.S. has agreed to transfer to the Afghan government many of the Bagram prisoners who are its citizens. A U.S. court review in those circumsances could disrupt that arrangement and offend the Afghan government, the opinion concluded.

That factor figured in the judge’s conclusion that the Afghan before him, Hazi Wazir, may not be eligible to pursue habeas in a U.S. court.

Turning to Wazir’s case, the judge said that, since he is not entitled to pursue habeas under the Suspension Clause, it was necessary to analyze whether there might be an alternative route to habeas relief.  It was this part of the ruling that seemed to suggest a potential impact of the ruling for detainees in places other than Bagram.

The one avenue possibly open to Wazir, the judge said, and the one on which the judge ordered further briefing, is whether Congress “usurped” the federal courts’ constitutional authority by wiping out habeas worldwide for any detainee confined as an “enemy combatant.”

The claim, the judge said, is that by labeling detainees as “enemy combatants” at the same time it took away their rights in federal court, Congress and the President had violated the Supreme Court’s 1871 decision in U.S. v. Klein.   In that ruling, the Court held that Congress may not lay down rules for the courts to decide cases pending befoe them.

Tje argument made by detainees, the judge noted further, is that with the Executive Branch labeling prisoners as “enemy combatants,” and with Congress then shutting them out of the courts, the political branches “ran afoul of Klein.”

Too little attention was paid to that claim in the government’s written arguments, and the 1871 decision “maintains vitality today,” the judge said, so he ordered further briefing on how that ruling applies to Wazir’s case.  The government is to file a brief up to 15 pages long on that issue by April 23, with Wazir’s counsel to file a reply of 10 pages by May 7.

In the meantime, the judge said he would “reserve” decision on whether Wazir’s habeas plea should be dismissed.

The judge, while rejecting a government claim that extending habeas to anyone at Bagram would extend the Constitution all around the globe, did indicate that his ruling could apply “where the United States has the degree of control over a site that would permit meaningful review” of an individual’s detention.  And, he noted, the kind of control the U.S. military exercises over the Bagram detention facility is the same degree of control that it exercises “at any military base it establishes.”  The one limitation he particularly stressed is that habeas might not be available if that would cause friction with a host foreign government.