Foreign nationals held in a U.S. military prison at Bagram airbase in Afghanistan do not have the right to challenge their detainment in federal courts, ruled a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today.
The unanimous ruling, written by Chief Judge David Sentelle and joined by Judge David Tatel and Senior Judge Harry Edwards, addressed a lingering and major question stemming from the U.S. Supreme Court’s decision in Boumediene v. Bush in 2008. In Boumediene, the justices held that federal courts had habeas jurisdiction over Guantanamo Bay detainees.
The 2008 ruling left unresolved just how far federal habeas jurisdiction extends beyond the shores of the United States.
In Maqaleh v. Gates, which involved two Yemenis and a Tunisian held at Bagram, the Obama Administration, echoing the Bush Administration’s position, argued that federal courts lacked jurisdiction to hear these detainees’ challenges because of the Military Commissions Act of 2006.
In deciding the issue, the three-judge panel applied a three-factor test for determining jurisdiction that the justices had set out in their Boumediene decision:
“(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.”
The panel found the first factor weighed in favor of the detainees. Their status, the panel said, was the same as the Guantanamo detainees and they had received even less military process than the latter group.
The second factor favored the government, according to the panel:
“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,” wrote Sentelle. “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.”
And finally, the third factor “weighs overwhelmingly in favor of the position of the United States,” said the panel. “It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war. The United States holds the detainees pursuant to a cooperative arrangement with Afghanistan on territory as to which Afghanistan is sovereign. While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that relationship, neither can we say with certainty what the reaction of the Afghan government would be.”
The panel’s ruling overturns an earlier decision in favor of the detainees by U.S. District Judge John Bates. The Bagram case will likely reach the Supreme Court.
The case was argued by Deputy Solicitor General Neal Katyal and, for the detainees, Tina Foster of the International Justice Network in New York.
Foster said, “We are still reviewing the opinion with our legal team and experts, and will be deciding how best to challenge it.”
However, terrorism scholar Stephen Vladeck of American University Washington College of Law was pessimistic about both en banc and Supreme Court review.
“I think the way decision was written and the identity of the panel really, really hurt the case for cert,” he explained. “This panel is such a fair cross-section of the D.C. Circuit and, if anything, is skewed towards judges more sympathetic to the detainees. This case would definitely had gone up if it had come out the other way. I don’t know that there will be four votes for cert in the Supreme Court given it is very unclear there are five votes on merits.”
Vladeck said Justice Anthony Kennedy’s analysis in Boumediene created the problem faced by the panel because his finding of habeas jurisdiction relied so heavily “on the unique status of Guantanamo. That’s why, although disappointing, this is a wholly unsurprising decision.”