Friday, May 21, 2010
A three-judge panel of the D.C. Circuit ruled on Friday in Al Maqaleh v. Gates that habeas does not extend to detainees at Bagram Airfield in Afghanistan.
The panel overturned a decision over a year ago by Judge Bates of the D.C. District that habeas extends to Bagram detainees under the practical, not formal, reasoning of Boumediene v. Bush, the 2009 decision ruling that habeas extended to detainees at Guantanamo Bay.
The difference in the decisions is simply the application of three-factor test in Boumediene:
(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.
In a decision that relied heavily on Johnson v. Eisentrager--the 1950 case rejecting the habeas claims of 51 German nationals captured and tried for war crimes in China and detained at Lansberg Prison, a facility under the control of the United States as part of the Allied Powers' post-war occupation--the panel ruled that the balance favored the government's position that habeas does not extend to Bagram.
The court ruled that the first factor weighed in favor of the detainees--that the citizenship and status of the detainees at Bagram (who were subject to a detention process with less protections than the process for Guantanamo detainees and who were not tried for war crimes) weighed more in favor than the citizenship and status of the detainees in either Boumediene or Eisentrager.
But the court ruled that the second and third factors weighed more strongly in favor of the government. As to the second factor, the court ruled that U.S. control (or relative lack of it, in the form of de facto sovereignty) over Bagram is similar to its control over Lansberg in Eisentrager and less than its control over Guantanamo Bay in Boumediene. As to the third factor, the court relied on the fact that Bagram is in an active theater of war--and neither Lansberg nor Guantanamo were.
The court rejected the appellants' argument that the government's position would allow the government to manipulate whether habeas applied simply by changing the location of detention.
Judge Bates's earlier decision extending habeas to Bagram did not credit the consideration that Bagram is in an active theater of war the same way that the D.C. Circuit did. Bates ruled that technology (e.g., video-conferencing) made it practically just as easy to extend habeas to Bagram as Guantanamo, notwithstanding the theater of war. The D.C. Circuit didn't examine the practical considerations so closely; instead, it relied more on Bagram being in a theater of war, without examining more closely why, as a practical matter, that would cut against habeas. (The D.C. Circuit's approach was really a common law approach, navigating between the facts in Eisentrager and Boumediene on the Boumediene factors, without a lot of explanation of why the Boumediene factors mattered. Judge Bates, in contrast, seemed to focus more practically on why and how the Boumeidene factors applied to Bagram--and how habeas might work there.)
Both decisions followed Boumediene and rejected a formalistic approach in favor of a practical approach. The two courts simply disagreed as to how the Boumediene factors applied.
If the case gets to the Supreme Court, and if Justices Ginsburg, Breyer, and Sotomayor vote for extending habeas to Bagram (as Justices Ginsburg, Breyer, and Souter did in Boumediene), the case will likely turn on two factors: Justice Kennedy; and nominee Elena Kagan. Justice Kennedy, the author of the Court's 5-4 opinion in Boumediene, may well adopt the D.C. Circuit's position (and not Judge Bates's approach), switching the count to 5 against habeas at Bagram. But even if Kennedy were to adopt Judge Bates's approach, a Justice Kagan could either vote with the Boumediene minority, or recuse herself--either way upholding the D.C. Circuit ruling (assuming an en banc D.C. Circuit upholds the panel ruling, or declines to take the case up).