As Ben noted last month, Judge Bates recently has shown some interest in possibly moving the Boumediene-at-Bagram case, Al Maqaleh v. Rumsfeld, along toward a resolution. After several very quiet months seemingly mulling over the pleadings before him, on the same day NPR aired a story suggesting that the U.S. “may have created a Guantanamo-style administrative detention regime that is against Afghan law,” Judge Bates set a motions hearing in the Al Maqaleh case. That hearing is happening this morning. It’s unclear from the docket if today’s proceeding will cover all issues in the parties’ briefing on the pending motion to dismiss or rather be limited to more recent factual developments. But in any event, as the details of U.S. detention operations in Afghanistan evolve and emerge, the facts that inform the outcome in this case are continuing to shift beneath the court’s feet.
To back up very briefly, the Al Maqaleh case (which technically comprises the petitions of three petitioners–Fadi Al Maqaleh, Amin Al Bakri, and Redha Al Najar) asks whether certain non-Afghan detainees held in Afghanistan can seek habeas review in a U.S. federal district court by virtue of the constitution’s Suspension Clause. The detainees are held at what was the Bagram Theater Internment Facility (when the case was first decided) and what is now the Detention Facility in Parwan (“DFIP”). Judge Bates decided in 2009 that three of those detainees could pursue their habeas challenges consistent with Boumediene, but he had his view reversed by the D.C. Circuit in 2010. Later, though, the D.C. Circuit was faced with a motion for rehearing on a question that it had expressly left unexplored in the 2010 opinion: whether the Boumediene analysis might resolve differently if a petitioner could show that the executive branch had manipulated the location of enemy combatant detention facilities in order to evade judicial review. The Court of Appeals did not grant the rehearing but it did suggest the petitioners could present that argument to Judge Bates.
The petitioners provided Judge Bates their amended petitions, and the government moved to dismiss them in May 2011. Following a docket battle over whether the petitioners could supplement their opposition brief in light of several factual developments, the parties at last completed the dismissal briefing in October 2011. Then Congress enacted the FY2012 NDAA and with it a number of provisions that were to be applicable to at least some status determinations conducted at Bagram. The government notified the court about these provisions in January, and counsel for petitioners responded to observe it was unclear whether the new provisions would apply to the petitioners in the future. Then for nearly four months the case was quiet, up until Judge Bates set a motions hearing just as a number of stories about the March 9, 2012 Memorandum of Understanding between the United States and Afghanistan were appearing in the press. The MOU outlines provisions for the transfer of U.S. detention facilities in Afghanistan to “Afghan command” and for the transfer of Afghan nationals detained by U.S. forces at the DFIP “to Afghanistan according to the provisions of the MOU.” (See also Bobby’s post on the MOU.)
The parties have since filed competing submissions regarding the March MOU. The government said that the MOU bosters both its position and the D.C. Circuit’s ruling that the “U.S. does not exercise de facto sovereignty over” Bagram. Counsel for the petitioners pointed out that the D.C. Circuit’s 2010 Al Maqaleh opinion did not see de facto sovereignty as a dispositive consideration for Boumediene purposes and that the government had omitted information suggesting that the MOU transfer provisions do not apply to non-Afghan detainees. That information was obtained from an article reported in the Times of London. (The Times piece is apparently behind a paywall; I found a reprint of the article here at the Ottawa Citizen.)
Thus it appears possible that either the Times article contains some factual inaccuracies about the precise nature of the detainee transfers happening at DFIP, or the government has a few details left to notify to the court. Indeed, in the wake of Judge Gwin’s decision in Wahid, Judge Bates seemed curious about the concrete question of whether petitioners were “still in the custody and control of the United States government at Bagram,” and he asked the government to answer that question directly in a special filing. The government complied and responded with one sentence informing the court that “all three petitioners in the above-captioned cases are still in the custody and control of the United States.”
No doubt today’s proceeding will be full of probing questions from Judge Bates about any number of these developments. Wells is heading over on behalf of Lawfare and will report back with his observations on the latest in this very interesting case.