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Analysis: Boumediene‘s reach


Two days after the federal government won court approval for wide power to detain terrorism suspects, a new test of whether that power extends around the globe comes up for review Thursday in a federal appeals court in Washington — the D.C. Circuit Court.  The rapidly changing military situation almost 7,000 miles away in Afghanistan hangs over the hearing, and could affect how or even whether this controversy becomes an issue for the Supreme Court later.

In a morning hearing scheduled for 40 minutes, three judges on the Circuit panel will be weighing just how far the Supreme Court meant to go with its 2008 decision on detainees’ rights in Boumediene v. Bush.  Specifically, the issue is whether lawyers for detainees can take that ruling, issued in a Guantanamo Bay case, and apply it to detentions at a U.S. military prison in Afghanistan, to test ongoing detention there.

Within the next two weeks, the three detainees directly involved in the case — along with nearly 600 others prisoners – are expected to be transferred out of the prison where the dispute arose to another facility located on the same military airbase, Bagram, 40 miles north of Kabul.  Whether that changes the legal contours of the case is unclear at this point, but it does serve to illustrate that military decisions made on the ground can make it difficult for the slower processes of the courts to keep up.  (The government informed federal judges of the changes at the Bagram facility in two filings on Dec. 30, found here and here.)

The lead case of the three under review is Al-Maqaleh v. Gates (Circuit docket 09-5265).  Fadi Al-Maqaleh, 27 years old, is a Yemeni national, as is another of the two prisoners directly involved, Amin Al-Bakri, 40.  The third detainee is Redha Al-Najar, 40, a Tunisian national.  Each contends that he was captured outside of Afghanistan, and ultimately sent to the Bagram Air Base prison nearly seven years ago.

The Bagram facility is known, among human rights groups and detainees’ counsel, as a site of torture and assault, where several detainees have died.  Two of the three individuals in this case assert that they were held at a Central Intelligence Agency “black site” somewhere overseas before being shipped to Bagram.   All three contend that they are not combatants of any kind, although the government has labeled them “enemy combatants.”  They seek to challenge their continued detention through habeas cases in U.S. District Court in Washington, and a federal judge has ruled that those cases may go ahead.

The opening of that Court to their challenges, however, has been blocked while the Circuit Court hears a government appeal from a ruling in their favor last April by U.S. District Judge John D. Bates.  The judge ruled that detainees at Bagram who are not Afghan citizens and who were captured outside of Afghanistan have a constitutional right, under the Boumediene decision, to test their detention if they have been held for several years without a charge against them.  (Judge Bates ruled that Afghan citizens at the Bagram prison cannot bring cases in federal court; that part of his ruling is being challenged on appeal by an Afghan national, Haji Pacha Wazir [Circuit docket 09-5303]; that case is on hold pending the coming ruling in the Al-Maqaleh case.)

Through random selection of judges, the Al-Maqaleh case drew a panel that could be controlled by its two liberal members — Circuit Judge David S. Tatel and Senior Circuit Judge Harry T. Edwards.  The third member is Chief Judge David B. Sentelle, a conservative.

But at least part of the case may be controlled by a ruling just two days ago by a conservative-dominated panel of the Circuit Court (see this post on the ruling).  In that decision, largely based on a perception of a strictly limited role for the courts in reviewing “war time detention,” the panel set a binding Circuit precedent that other panels have to follow if the issues are parallel.  One issue in the Al-Maqaleah case, for example, is a claim that international law protects the Bagram detainees from long-term captivity if they are not combatants.  Tuesday’s ruling bars such claims in wartime detention cases.

The Obama Administration, in its written briefs in the Al-Maqaleh case, has made much of the fact that the case deals with claimed rights of detainees who are being held in the midst of an “active war zone” far from U.S. shores.  Unlike the nearby Guantanamo Bay prison in Cuba, and the “peaceful” situation in which that facility exists, the Bagram prison, the Administration has argued, sits in the midst of combat activity that often makes the Bagram Base itself a military target.

It thus has argued that habeas rights have no place at Bagram, and that the Boumediene decision must be understood as limited to the far different situation at Guantanamo.  Its briefs have brought a studied effort to preserve, for the military, the power to detain suspects anywhere in the world without the oversight of U.S. civilian courts.

The three Bagram detainees’ lawyers counter in their main brief that their case “presents the same fundamental concerns that motivated the Boumediene Court to adopt the flexible and multi-faceted test which the District Court painstakingly considered and correctly applied” to the three non-Afghan detainees.  “In this case,” the brief added, “the only protection from arbitrary detention without end is the Great Writ serving in its historical role as a means of reviewing the legality of Executive detention.”  That concept, they contend, does not change with geographic location.

The Administration has signaled the importance it attaches to the Bagram case by assigning one of its highest-ranking advocates — Deputy Solicitor General Neal K. Katyal — to argue before the Circuit Court.  Katyal is the lawyer who, as a Georgetown University professor, won one of the Guatanamo detainees’ most important victories in the Supreme Court (Hamdan v. Rumsfeld, in 2006).

Representing the Bagram detainees Thursday will be Tina M. Foster, an attorney with the International Justice Network, a liberal advocacy group based in New York.