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The fate of Bagram detainees

A federal judge, made cautious by a reversal in the D.C. Circuit Court two years ago, explored at length on Monday whether any legal maneuvering room has been left for opening the U.S. courts to hear challenges to the U.S. military’s detention of foreign nationals at a prison outside Kabul in Afghanistan.  The Circuit Court in 2010 left what appeared to be a small opening, and U.S. District Judge John D. Bates examined the dimensions of that, along with other arguments by lawyers for four of those detainees.   He gave no indication when he would rule.

Opening a hearing that would last two hours and 20 minutes, Judge Bates told lawyers in his Washington courtroom that only if they could show that legal and factual conditions had changed since 2010 would there be any chance that the right to file a habeas challenge could reach across the seas to those being kept at a large prison at Bagram air base.  “How are things different today?” the judge asked.  He was alternatively skeptical, and encouraging, as the hearing unfolded.

Three years ago, in the case of Al Maqaleh, et al., v. Gates (District docket 06-1669), Judge Bates had interpreted the Supreme Court’s 2008 ruling in Boumediene v. Bush to give some Bagram detainees a right to contest their captivity in an American court.  It was, though, a narrow ruling: limited to non-Afghan prisoners, who were initially captured outside Afghanistan, who had been held for years, and who did not have open to them a workable alternative way to test their detention as terrorism suspects.  In that specific set of circumstances, he ruled, it would be unconstitutional under Boumediene to deny them access to a habeas court.

That ruling, however, was overturned by the D.C. Circuit in May 2010 (Al Maqaleh, et al., v. Gates, Circuit docket 09-5265).  In a ruling that appeared to have come close to shutting the U.S. courthouse door to those at Bagram, the Circuit Court relied heavily upon the fact that Bagram was in the midst of “a theater of war,” and that was not the situation with the U.S. military detention facility at Guantanamo Bay, Cuba — the specific focus of the Supreme Court in the Boumediene case.  “All of the vagaries of war are present in Bagram,” the Circuit panel remarked.   Further, the panel said, the U.S. government does not have the same control over Bagram as it does at Guantanamo, and added that Bagram is located in the midst of a sovereign nation, Afghanistan.

But before concluding that opinion, the Circuit Court left an opening.  It noted that the detainees’ lawyers had argued that the Executive Branch had chosen the Bagram facility for housing terrorism suspects precisely to put them beyond the reach of an American habeas court.  While expressing significant doubt about that, the Circuit Court said it did not have to decide whether that was a proper factor to consider, “given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation.”  Two months later, in denying a rehearing plea by the detainees based on new evidence about the way Bagram was actually functioning, the Circuit Court said the attorneys could bring that up “in the District Court in the first instance.”

That new information is what Judge Bates has since been exploring.  All of the claims about Bagram, the judge said at the outset of Monday’s motions hearing, “have to fit into the ‘new information'” that the detainees’ counsel were offering.  “The focus,” he added, “has to be on what the D.C. Circuit thought was important.”

When the judge brought up with detainee lawyer Ramzi Kassem the point about using Bagram to evade American habeas courts, the judge quoted the Circuit Court comment that the assertion — two years ago — was speculation, not reality.  “How,” the judge asked, “do you move into reality?” Kassem cited a 2001 government memo — not available to the Circuit Court in 2010 — that he said proved that “our clients are being kept to circumvent habeas.”  The memo, he said, “lays out the reasoning” to do just that.

The judge responded that it “would be just as rational to infer” that the detainees involved in this case had been sent to Bagram because that was the closest site to where they have been captured.  The judge also said that it would be “reasonable” to conclude, since the Obama Administration had said it wanted to close the facility at Guantanamo, that Bagram was being used as the alternative site for detention.   The judge also said that the memo Kassem had cited was from 2001, and dealt only with Guantanamo, not with Bagram.

Judge Bates also expressed interest in another of Kassem’s points seeking to counter the Circuit Court’s concern over “practical obstacles” of extending habeas to Bagram because that would impinge on military operations there.  Kassem said that the Afghan government has conducted “672 full-blown criminal trials” of Afghan citizens who had been held at Bagram, and that the U.S. military was assisting in those, and perhaps even overseeing them.   By contrast, the lawyer said, habeas proceedings would be nowhere near as complex as a criminal trial, and, if confined to non-Afghans, would involve “only a handful of attorneys and a handful of prisoners.”   The judge wondered whether the U.S. was also supplying witnesses for the Afghan trials, and Kassen said he did not know.

Kassem and his colleagues are representing three Bagram prisoners: two Yemeni nationals and one Tunisian.   For purposes of Monday’s hearing, Judge Bates also brought in the situation with a fourth detainee, identified in court papers only as Hamidullah, who is a Pakistani whose interests are being pressed by his father.  That detainee’s case is unusual in that he was only 14 years old when he was first captured; he is now 18.  Just as the federal government is seeking to have the judge dismiss the three detainees’ cases that were involved in his ongoing review, it is pressing to have Hamidullah’s case thrown out, on the same theory: U.S. habeas courts have no jurisdiction over Bagram prisoners’ cases.

The judge pressed John J. Connolly, Hamidullah’s lawyer, for the legal basis for arguing that a juvenile is entitled to special consideration when it comes to federal court authority to rule on a habeas challenge.  Connolly cited U.S. laws, international treaties, and international legal norms, but the judge commented that those did not go to the question of habeas jurisdiction.   Judge Bates commented, at the close of Connolly’s argument, that he had made a strong emotional appeal, but perhaps it was one that might better be made to Congress or to the Executive Branch than to the courts.

Connolly’s argument, however, did seem to capture the judge’s fascination, because he pressed the government’s lawyer, Justice Department trial attorney Jean Lin, at length about the fate of a juvenile at Bagram.  The Supreme Court, the judge noted, had often issued rulings that indicated that, in terms of personal responsibility, “juveniles are different.”  Lin responded that it was an unfortunate effect of armed hostilities that juvenile soldiers get caught up in them, and that they may pose risks just as adults may.  But the judge commented that, since the Supreme Court had made the “status” of a detainee a factor in considering whether to allow access to the courts, “why doesn’t the term ‘status’ naturally include juveniles?”   Lin countered that the important question about status was whether a detainee would return to the battlefield if released by a court.

The judge also explored with Lin whether the habeas issue would change if, four years from now, the U.S. had withdrawn almost of its troops from Afghanistan, but had kept enough there to continue to run a detention operation at Bagram.   The legal situation, Lin said, would depend upon whether hostilities were still going on then, but she said that what mattered now is that hostilities are, indeed, still going on in Afghanistan.

Lin also was questioned by the judge on whether it was the government’s view that the habeas proceedings involving Guantanamo detainees “had led to a clash between the judiciary and the military.”  That, the judge remarked, “is the only model we have” for judging what might happen if habeas rights were extended to Bagram detainees.  Lin answered that the Guantanamo cases have required considerable effort, but that the critical thing that made Bagram different is that it is in a war zone.

Near the close of Lin’s time at the lectern, Judge Bates asked her about the claim that the Executive Branch was manipulating the use of Bagram for detention to evade American courts.  “The Circuit Court,” he told the government lawyer, “said we should await a real case.  What does it take to have such a case?”   Lin responded that this case was not in that category.   “Nothing has changed” since the Circuit Court expressed doubt about that, she went on, and the government “has made no determination to turn off the Constitution.”

Obviously interested in that subject, the judge asked: “What if I had a clear statement from a reputable administration official who has said that detainees were being kept in Bagram to avoid habeas jurisdiction?  Would that be enough to show manipulation?”  Lin said it would not be sufficient. “Some official,” she added, “could say that about any detainees held in every single war.”  And, she said, the statement of a single official would not represent the views of the Executive Branch.”

Before Lin sat down, the judge mildly criticized government lawyers for being willing to provide some information about the way Bagram is operating, but not other kinds.  “I ask the government,” he commented, “to think carefully about what facts about the process it’s going to reveal to the court.  I am concerned about not having complete factual information.  It seems a bit odd.”

He closed by telling lawyers that they had a week to file any added information they now have, but told them to keep it brief.

Recommended Citation: Lyle Denniston, The fate of Bagram detainees, SCOTUSblog (Jul. 16, 2012, 6:35 PM),