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Justice Department challenges habeas rights for Bagram detainees

U.S. District Judge John D. Bates

U.S. District Judge John D. Bates

As is now quite well known, on April 2nd, Federal District Judge John D. Bates issued a landmark opinion on the scope of habeas corpus in Maqaleh v. Gates. Faced with the question of whether the right of habeas should be extended to four persons detained by the United States at Bagram Airfield in Afghanistan, Bates ruled that three out of the four where indeed entitled habeas review. In the case of the fourth, Bates ruled that because he was an Afghan national, ” ‘practical obstacles’ ” in the form of friction with the ‘host’ country” counseled against the extension of habeas to him.

Judge Bates used two guiding cases to frame his opinion– Boumediene and Eisentrager. As will be recalled, the Supreme Court in Boumediene ruled in 2008 that the detainees in Guantanamo have a right to petition for a writ of habeas corpus, but the Court ruled in 1950 in Eisentrager that detainees held in Allied-run Landsberg Prison in West Germany did not have a right to petition. So for the purpose of deciding whether to grant petitioners the right to habeas review, the question was whether the detainees in Bagram were more like those at Guantanamo or those at Landsberg.

To make this determination, Judge Bates uses the test set forth in Boumediene. He explains:

Boumediene concluded that “at least three factors are relevant in determining the reach of the Suspension Clause”:

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

128 S. Ct. at 2259. For the sake of analysis, these three factors can be subdivided further into six: (1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of
apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner’s entitlement to the writ.

Bates carefully applies these criteria and concludes that the situation of three of the four Bagram detainees is indeed more like that of those detained in Guantanamo. Bates writes:

Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene — they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these
petitioners have been determined to be “enemy combatants,” a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the “objective degree of control” asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the “practical obstacles” inherent in resolving a Bagram detainee’s entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war. But those obstacles are not as great as respondents claim, and certainly are not insurmountable. And importantly, for these petitioners, such practical barriers are largely of the Executive’s choosing — they were all apprehended elsewhere and then brought (i.e., rendered) to Bagram for detention now exceeding six years.

Now, the Justice Department is asking Judge Bates to certify the issue for appeal to the D.C. Circuit Court of Appeals and grant of stay of his ruling, pending the appeal. Lyle Denniston over at SCOTUSblog reports:

The Justice Department, saying top officials have authorized a swift appeal, asked a federal District Court judge on Friday to put on hold a ruling that would extend some constitutional rights to detainees being held by the U.S. military at Bagram air base in Afghanistan.

At stake, the Department said in a new filing in U.S. District Court, is whether the constitutional right to challenge detention should be extended “for the first time to a theater of war on foreign territory over which the United States exercises neither de jure nor de facto sovereignty.” The Department insisted that the Bagram detention site was not being used just to put prisoners beyond the reach of U.S. courts.

It sought an order by District Judge John D. Bates to certify the issue to the D.C. Circuit Court even though the Bagram detainees’ case is still in a pre-trial stage. “If the Court of Appeals determines that these [detainees] cannot invoke the constitutional privilege of the writ of habeas corpus, then this Court would have no jurisdiction to proceed and litgation of these habeas cases will end,” the filing said.

The Department also asked Judge Bates to stay his ruling while the appeal goes forward, stopping all proceedings in his Court. It said that U.S. Solicitor General Elena Kagan authorized the plea “to seek an expedited appeal.”

“If this Court were to proceed with these cases during the pendency of the appeal,” the motion argued, “the Court would impose serious practical burdens on, and potential harm to, the Government and its efforts to prosecute the war in Afghanistan.”

Denniston explains:

Responding in court to these three cases[the three detainees at question in Judge Bates' ruling], ”and to the potentially large number of other petitions filed by Bagram detainees who may now allege that they are similarly situated,” the Department argued, “would divert the military’s attention and resources at a critical time for operations in Afghanistan, potentially requiring accomodation and protection of counsel and onerous discovery.”

Judge Bates had limited his ruling to just three Bagram detainees, saying they were not nationals of Afghanistan and had been captured elsewhere and simply transferred to Bagram for detention. Bagram, however, holds somewhere around 600 detainees; it is unknown how many of them would fit in the category covered by Bates’ decision; the judge himself said it would apply to only a limited number there.

The standard for allowing a pre-trial appeal to go ahead in federal courts is whether the dispute involves a “controlling question of law” about which there is substantial disagreement, and whether such an immediate appeal would help toward a final ruling of the controversy.

The Department contended that the issue of the Bagram detainees’ rights meets that standard. The question of the District Court’s jurisdiction over Bagram prisioners, it said, is a controlling legal issue.

It also argued that the Bagram situation is very different from that previaling at Guantanamo leading to the Supreme Court’s Boumediene decision. It also contended that it is not clear that the place where a detainee was captured has anything to do with the legality of detention.

Opinions also diverge, the Department contended, on whether Judge Bates’ ruling “encroaches on military judgments about where to detain an individual captured during an ongoing war.” There are “many legitimate reasons, having nothing to do” with trying to manipulate courts’ powers over detainees, on why the military chooses a particular site for holding a particular prisoner.

The document described a series of possible inhibitions of military choices about capturing and detaining individuals in wartime situations. Among them was a complaint that extending habeas to Bagram might keep the military from sending to Bagram individuals captured in Pakistan, whether the military does not have facilities for screening or detaining prisoners.

A couple of comments.

First, I am not surprised that Justice is asking for Judge Bates to certify the case for appeal and issue a stay. It would not surprise me if he does both. It is clear that the issues at question require review by the Circuit Court, and, unless the case becomes moot for some reason, ultimately the Supreme Court.

Second, it is useful to note for the record that Judge Bates was appointed by President Bush, and that the Obama Administration is arguing that his decision is too restrictive of the Executive branche’s power to conduct the war. I guess this is also not too surprising. Presidents of both parties generally seek to defend broad presidential power in foreign affairs.

Third, so now, assuming Judge Bates complies with the request, what will the D.C. Circuit do?

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.