By Daniel Jacobson –
On May 21, 2010, in Al Maqaleh v. Gates, a three-judge panel of the D.C. Circuit unanimously reversed a previous district court ruling and held that there was no jurisdiction to hear the petitions for habeas corpus relief of three detainees being held at Bagram Air Base in Afghanistan. The three detainees in question are all non-U.S. citizens who claim to have been apprehended outside of Afghanistan. The court’s twenty-six-page opinion was surprisingly short given the import of the case. Moreover, a large portion of the opinion was spent simply recounting the relevant line of Supreme Court precedents. When the court finally did engage in substantive analysis, it applied the three-factor test laid out by the Supreme Court in Boumediene v. Bush for analyzing the reach of the Suspension Clause (i.e., for analyzing whether given detainees have a constitutional right to petition for habeas corpus relief). Those three factors are: (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.
Despite the brevity of the opinion, there are several noteworthy aspects of the court’s application of the “Boumediene factors.” For one, the court shifted the focus of analysis from the second factor, “the nature of the sites where . . . detention took place,” to the third factor, revolving around the “practical obstacles” to hearing the detainees’ petitions. In Boumediene, Justice Kennedy spent a significant portion of his majority opinion establishing why the United States should be considered to have “de facto sovereignty” over its military base at Guantanamo Bay. Kennedy thus arguably left the impression that this question, falling within the second prong of the three-part test, was the central issue of the inquiry. Yet in Al Maqaleh, the D.C. Circuit took great pains to emphasize that the question of de facto sovereignty was not determinative. The Al Maqaleh court rejected as an “extreme understanding of the law” the government’s position that the right to habeas corpus cannot extend to an area over which the United States does not have at least de facto sovereignty. The court elaborated, “had the Boumediene Court intended to limit its understanding of the reach of the Suspension Clause to territories over which the United States exercised de facto sovereignty, it would have had no need to outline the factors to be considered either generally or in the detail which it in fact adopted.”
In focusing instead on the “practical obstacles” prong, the court emphasized that the site of detention, Bagram, sits in an active theater of war. In this regard, the court relied heavily on the Supreme Court’s 1950 decision in Johnson v. Eisentrager. In Eisentrager, the Supreme Court rejected the habeas petitions of twenty-one German nationals held by the United States at Landsberg Prison in Germany. The Al Maqaleh court referenced a passage from Eisentrager in which the Eisentrager Court argued that hearing the habeas petitions could “hamper the war effort,” “bring aid and comfort to the enemy,” and “diminish the prestige of our commanders.” The Al Maqaleh court reasoned that such concerns were even greater in the present case, as active war operations are still very much ongoing in Afghanistan while they had already ceased in Europe at the time of Eisentrager.
Given this shift in emphasis, the degree to which the Al Maqaleh opinion remains true to Justice Kennedy’s Boumediene opinion can be debated. On the one hand, given that the de facto sovereignty inquiry was so central to Justice Kennedy’s analysis in Boumediene, an opinion in Al Maqaleh that focused far more on whether the United States has de facto sovereignty over Bagram would have been quite reasonable (and would not have been an “extreme understanding” of Boumediene by any means). Yet on the other hand, if one thinks of the core principle underlying Boumediene as that of pragmatism, then Al Maqaleh was very much consistent with this rationale. Specifically, the Al Maqaleh court may have justifiably determined that now that the setting of analysis has moved away from Guantanamo (Boumediene was after all a culmination of the Guantanamo line of cases), a different aspect of the analysis has become most relevant to reaching an optimal conclusion. In fact, one could argue that the Boumediene Court anticipated that such a need for a new emphasis of analysis would arise post-Boumediene, and that is exactly why it made sure to add the third prong concerning “practical obstacles” to the test it explicated.
In addition to its application of the Boumediene three-part test, another interesting aspect of the Al Maqaleh opinion is the court’s discussion of the fear that the government may be able to manipulate the court’s analysis. In a long paragraph near the end of its opinion, the court addressed the argument that ruling in favor of the government would allow it “to switch the Constitution on or off at will” by simply transferring detainees to Bagram rather than a setting such as Guantanamo (or elsewhere) where habeas petitions would have to be heard. The court noted that these three detainees were brought to Bagram before Boumediene was handed down, and therefore it was not credible to claim that the detainees were placed in Bagram specifically to deny them of habeas rights. However, the court left open the possibility that this “manipulation” consideration could be a relevant factor in a future case where concern over potential manipulation would be more legitimate. Unfortunately, the court’s discussion in this regard just raises the question as to what would qualify as manipulation. Suppose the exact same facts arose as in Al Maqaleh but post-Boumediene. That is, suppose that post-Boumediene, the government picks up a suspect in Pakistan and brings him to Bagram, or that, as claimed by one of the Al Maqaleh detainees, the government picks up a suspect in a more distant setting such as Thailand. It would seem difficult, and highly speculative, to develop the counterfactual as to what the government would have done if there were no right to habeas at Guantanamo (or equivalently, if there were a full right to habeas at Bagram). In other words, how would a district judge determine whether the government sent the detainees to Bagram because the government was trying to manipulate their rights, or whether the detainees were sent to Bagram simply because that is the logical place to send those particular detainees?
Despite these remaining questions, the Al Maqaleh court’s discussion of considerations of potential manipulation, taken in conjunction with the three-part test developed in Boumediene (and further developed in Al Maqaleh), does reinforce the notion that case-by-case pragmatism ought to be the preferred judicial approach when confronted with difficult questions of national security. Given the multitude of novel legal issues related to terrorism destined to arise in the near future, it is not difficult to see why a flexible approach to this area of the law would be beneficial. Thus, more than any specific pieces of legal doctrine that Boumediene and Al Maqaleh develop, the longest lasting impact of these cases may stem from the jurisprudential approach on which they stand.
Image courtesy of the Telegraph