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Comments on Maqaleh and Hamidullah

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Friday, October 19, 2012 at 3:42 PM

I have now read through Al Maqaleh v. Gates and Hamidullah v. Obama, which are both brief reads. I don’t have a great deal to say about them, except that they well represent the end of the line for the possibility of Bagram habeas jurisdiction. Sure, the petitioners can appeal to the D.C. Circuit, but Judge John D. Bates—who wrote these opinions—was always more apt to seeBoumediene as conveying jurisdiction than the D.C. Circuit was. Indeed, the appeals court famously reversed him once on that point. So this is not a promising forum for petitioners avenue. Nor has the Supreme Court shown much appetite for reviewing the D.C. Circuit’s detention work.

I suspect this will be particularly the case now that the United States is starting to disengage from Afghanistan—and from Bagram, in particular. Indeed, the petitioners here asked Judge Bates to assume jurisdiction over non-Afghans held at Bagram in part on grounds that the government was turning over Afghans, but not them, to Afghan custody. Judge Bates declined, describing instead how the very pattern they described actually cut against them:

nothing has changed about respondents’ stated position with respect to detainees since this case was litigated before the D.C. Circuit: respondents still intend to transfer custody of all detainees to the Afghan government or elsewhere (but not to the United States). Hence, petitioners must resort to the argument that the transfer of some detainees to the Afghan government makes it less likely that other detainees will someday be transferred, even though the United States continues to reaffirm its goal of transferring custody of all detainees. But as a matter of logic, petitioners’ argument makes little sense. Indeed, one could convincingly argue that the opposite is true. At the time this case was argued in the court of appeals, it would have been reasonable to wonder how committed the United States was to its amorphous goal of eventually ceding custody of detainees to another government. That the United States has now transferred custody of numerous detainees to the Afghan government, however, demonstrates the sincerity of those representations. In addition, the capacity the Afghan government is building to house and prosecute Afghan detainees may make it more likely that non-Afghan detainees can eventually be transferred to the Afghan government, if not to other countries. Hence, respondents’ position on this point is no weaker than it was before the D.C. Circuit; indeed, if anything, it may be stronger.

Put simply, the fact that the petitioners could not make more headway with Judge Bates—who had ruled for them in the past—in a climate in which the government has a very plausible argument that it is handling Bagram by other, non-judicial, means is a very bad sign for those urging an extension of Boumediene beyond Guantanamo.

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