Al Maqaleh v. Gates (D.C. Cir. May 21, 2010) (reversing decision below and dismissing habeas petitions by detainees in Afghanistan)

May 21, 2010

* Al Maqaleh v. Gates (D.C. Cir. May 21, 2010) (reversing decision below and dismissing habeas petitions by detainees held in Afghanistan)

A very big win for the government. The 26-page opinion is posted here, and attached as a pdf as well.

The long and short of it is that the panel (Sentelle, Tatel, and Edwards) thought that the district court (Bates) underestimated the significance of the fact that the Bagram Theater Internment Facility (and, now, the new facility located nearby) was located in a zone of ongoing armed conflict, which in the panel’s view made this case more analogous to Eisentrager than Boumediene irrespective of where a particular detainee was captured.

Significantly, the panel did note the petitioners’ argument that excluding jurisdiction on this ground might open the door to manipulation in the sense that the executive branch could choose to put detainees captured elsewhere into this war zone precisely in order to avoid habeas jurisdiction. Rather than reject this as irrelevant, the panel instead observed that there was no evidence that this sort of purposeful manipulation actually had occurred with respect to any of the petitioners at issue in this case (even the petitioners who had been captured outside Afghanistan). The panel reserved the question of what the outcome would be, in terms of habeas jurisdiction, should a petitioner come forward with evidence of such manipulation. That’s a relatively important point going forward, obviously.

Another interesting point: the panel in a footnote declined to take into account the recent enhancement of the procedural safeguards used in conducting detention screening in Afghanistan, stating simply that the court would decide the case in light of the prior procedures rather than new procedures adopted while the appeal was pending.

Here are the key excerpts from Chief Judge Sentelle’s opinion:

While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with

respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the petitioners, it is not determinative.

But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantanamo, the position of the United States is even stronger in this case than it was in Eisentrager. As the Supreme Court recognized in Boumediene, even though the active hostilities in the European theater had “c[o]me to an end,” a theater of war remained:

In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’”

128 S. Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784).

In ruling for the extension of the writ to Guantanamo, the Supreme Court expressly noted that “[s]imilar threats are not apparent here.” 128 S. Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene that at Guantanamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.” Id. at 2261-62 (emphasis added). Indeed, the Supreme Court supported this proposition with reference to the separate opinion of Justice Harlan in Reid, where the Justice expressed his doubts that “every provision of the Constitution must always be deemed automatically applicable to United States citizens in every part of the world.” See 354 U.S. at 74 (Harlan, J., concurring in the result). We therefore conclude that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.

We are supported in this conclusion by the rationale of Eisentrager, which was not only not overruled, but reinforced by the language and reasoning just referenced from Boumediene. As we referenced in the background discussion of this opinion, we set forth more fully now concerns expressed by the Supreme Court in reaching its decision in Eisentrager:

Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish theprestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Eisentrager, 339 U.S. at 779. Those factors are more relevant to the situation at Bagram than they were at Landsberg. While it is true, as the Supreme Court noted in Boumediene, that the United States forces in Germany in 1950 faced the possibility of unrest and guerilla warfare, operations in the European theater had ended with the surrender of Germany and Italy years earlier. Bagram remains in a theater of war. We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the

district court denying the motion of the United States to dismiss the petitions.

We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able “to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will.” Brief of Appellees at 34 (quotation marks and citation omitted). However, that is not what happened here. Indeed, without dismissing the legitimacy or sincerity of appellees’ concerns, we doubt that this fact goes to either the second or third of the Supreme Court’s enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation. In so stating, we note that the Supreme Court did not dictate that

the three enumerated factors are exhaustive. It only told us that “at least three factors” are relevant. Boumediene, 128 S. Ct. at 2259 (emphasis added). Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present. However, the notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to “turn off the Constitution” would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down.