Two years ago, I reported to you on the Supreme Court's decision in Boumediene v Bush, recognizing the right of Guantanamo detainees to file writs of habeas corpus to challenge the legitimacy of their detentions.
Today, the United States Court of Appeals for the District of Columbia Circuit held that these same habeas rights do not attach to detainees held by the United States military at the Bagram Airfield Military Base in Afghanistan -- in this case, two Tunisians and a Yemeni. Without habeas, Bagram detainees possess no right to a hearing in which a neutral federal district court judge could review the evidence against them and, based on the weight and credibility of that evidence, order their release.
The decision is here. As for what distinguished these detainees from those in Guantanamo, the panel examined three factors identified in Boumediene as critical:
- the citizenship and status of the detainee and the adequacy of the process through which that status determination was made;
- the nature of the sites where apprehension and then detention took place; and
- the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
While rejecting the government's argument that Boumediene only protected detainees where the United States was a de facto sovereign like Guantanamo, the panel also rejected the detainees' argument which might have applied habeas rights "to noncitizens held in any United States military facility in the world, and perhaps to an undeterminable number of other United States-leased facilities as well."
Instead, reviewing those three factors, the panel concluded:
- Like the Guantanamo detainees, these detainees' status as non-citizens argued against habeas rights. The “Unlawful Enemy Combatant Review Board” (UECRB) before which they could seek internal review, however, "afford even less protection to the rights of detainees in the determination of status than was the case with the CSRT [at Guantanamo]. This, they felt, argued for habeas.
- On the "where," the Court found that the Government had a more compelling case than with Guantanamo because of the relative impermanence of our presence in Afghanistan:
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.
- But most crucially is the state on the ground in Afghanistan and the perceived practical difficulties in providing habeas relief:
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.
[Eisentrager, a 1950 case, dealt with the rights of German detainees captured and tried in China for collecting and furnishing intelligence concerning American forces and their movements to the Japanese armed forces, then held in US-occupied Germany post-WWII.]
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.” 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).
And, so, quoting from Eisentrager:
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige 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.
Nor are they worried about the Executive Branch moving detainees around to avoid the Constitution ... yet:
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.” However, that is not what happened here. ... 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.
This was, I should note, about as liberal of a panel as you can get from the DC Circuit. While conservative Judge David Sentelle wrote the unanimous opinion, liberal Judges David Tatel and Harry Edwards signed on in its entirety.
As Lyle Denniston notes: "The Bagram detainees’ lawyers now have two options: they can ask the full, nine-judge Circuit Court to reconsider Friday’s ruling, or they can ask the Supreme Court to review the case now (or after any further challenge in the Circuit Court is over)."
