Thanks to an unexpected pair of days off, I've finally had the chance to review Judge Bates's October 19 rulings in Al-Maqaleh v. Gates ["Al-Maqaleh II"] and Hamidullah v. Obama. As readers know, these are the habeas petitions seeking to extend Boumediene v. Bush to at least some detainees at Bagram Air Base in Afghanistan. Back in 2009, Judge Bates had ruled in favor of jurisdiction for three detainees who were neither citizens of nor captured in Afghanistan, only to be reversed by the D.C. Circuit in May 2010. In his rulings earlier this month on remand from that D.C. Circuit decision, Judge Bates held that the petitioners adduced no new evidence militating against the Court of Appeals' conclusion that the Suspension Clause should not apply, and therefore dismissed the petitions for lack of jurisdiction.
For all the reasons he identifies, I think Ben is quite right that these rulings represent "the end of the line for the possibility of Bagram habeas jurisdiction." At the same time (and, I suspect, contra Ben), Judge Bates's application of the D.C. Circuit's decision in Al-Maqaleh nicely (and helpfully) illuminates what to me are the three interrelated (and fundamental) flaws underlying the Court of Appeals' reasoning--and the three reasons why, inasmuch as these rulings are "the end of the line" for habeas at Bagram (and perhaps anywhere else outside the United States besides Guantanamo), they shouldn't be.
Flaw #1: Boumediene's Factors Should Not be Applied Formalistically
The first thing that jumps out from Judge Bates' opinions in Al-Maqaleh II is his obeisance to the "three-factor test" that Boumediene purportedly articulated to assess whether the Suspension Clause should apply to the extraterritorial detention of non-citizens, i.e.:
(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.
Critically, Justice Kennedy introduced these three factors (which he divined from the Court's prior decisions) by emphasizing that "at least three factors are relevant in determining the reach of the Suspension Clause." (emphasis added). Nowhere did he suggest that these factors are either exclusive or dispositive, and Justice Kennedy was elsewhere at pains to emphasize that "the cases before us lack any precise historical parallel," and that formal tests for jurisdiction, such as the de jure sovereignty-based theory advanced by the government, "raise troubling separation-of-powers concerns as well." Whatever else one can say about Part IV of Justice Kennedy's opinion for the Boumediene Court, I'm hard-pressed to see in it a demand that lower courts hew formally to the three relevant--but non-conclusive--factors going to the applicability vel non of the Suspension Clause.
Flaw #2: The "Vast Differences" Between Guantanamo and Bagram
The reason why formalistic application of the three Boumediene factors denudes Boumediene of much of its force is because it fails to appreciate the extent to which functional considerations thoroughly influenced Justice Kennedy's analysis and application of those factors. For example, consider the second factor, i.e., "the nature of the sites where apprehension and then detention took place." In applying this factor in Boumediene, Justice Kennedy wrote as follows:
[T]he detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. . . . The United States was therefore answerable to its Allies for all activities occurring there. The Allies had not planned a long-term occupation of Germany, nor did they intend to displace all German institutions even during the period of occupation.
As Judge Bates rightly summarizes in Al-Maqaleh II, "In this case, the D.C. Circuit placed great weight on the fact that the United States's control over the base at Bagram Airfield was less absolute than its control over Guantanamo Bay." Because the Afghan government had more of an interest (and more directly participated) in the detentions at Bagram, the D.C. Circuit held that Boumediene could be distinguished.
The problem with this reasoning is that it elides the critical distinction between Afghanistan's involvement in the detentions of Afghan citizens at Bagram, and its apparent lack of involvement in (if not outright opposition to) the detentions of non-Afghan citizens picked up outside Afghanistan (such as the petitioners in Al-Maqaleh II) there. Indeed, the petitioners made this very point in their supplemental briefing in Al-Maqaleh II, along with the related argument that such an understanding is only further reinforced by the fact that the U.S. government has transferred control over countless Afghan detainees to the government of Afghanistan, without transferring such control over non-Afghan detainees. To this, Judge Bates replied simply that "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."
Even if that logic follows (and I don't think it does), it's beside the point. Functionally, the driving principle behind the second factor in Boumediene is whether habeas is necessary to serve as a check on U.S. government decisionmaking, or whether the meaningful involvement and participation of foreign sovereigns necessarily serves the same purpose. To the extent that the United States is simply not "answerable" to the government of Afghanistan for the detentions of non-Afghans at Bagram (and the related extent to which the government of Afghanistan has no incentive to play such a role for non-Afghans captured outside of Afghanistan), the second Boumediene factor should militate in favor of habeas, not against it.
Flaw #3: The Centrality of Practical Obstacles (of the Government's Own Making)
Finally, and driving home the structural significance of the flawed formalistic approach, Judge Bates revisited the petitioners' claim that they were being held at Bagram solely to avoid the habeas jurisdiction of the federal courts. As Judge Bates wrote, "Even if this is true, it is unclear whether such purposeful evasion of habeas jurisdiction would affect the jurisdictional analysis. Executive manipulation is not an explicit factor in three-part Boumediene test." To be fair, Judge Bates nevertheless allowed for the possibility that such manipulation might be relevant, only to conclude that "the Court simply sees no way to accept petitioners' argument under the framework laid out by the D.C. Circuit."
That the "framework laid out by the D.C. Circuit" requires the detainee to prove "potential executive manipulation of habeas jurisdiction" again misses Boumediene's point. Yes, Justice Kennedy expressly suggested that, "if the detention facility were located in an active theater of war, arguments that issuing the writ would be 'impracticable or anomalous' would have more weight." But he also emphasized that "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." Kennedy's point, in short, was not that a detainee should have to prove executive manipulation of habeas jurisdiction; it was that the government should not be allowed--intentionally or not--to manipulate the factors that courts should apply in determining the existence of jurisdiction. Although the same certainly could not be said for individuals picked up in Afghanistan (and Afghan citizens arrested elsewhere), a conscious decision by the U.S. government to move non-Afghan detainees captured outside Afghanistan into a zone of active combat operations certainly at least appears to open the door to the very manipulation Justice Kennedy expressly decried in Boumediene. At the very least, one would think proper respect for Boumediene would make this a much closer call...
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Of all of the D.C. Circuit's relevant post-Boumediene decisions, I have thus far been relatively modest in my critiques of Al-Maqaleh I, suggesting in one piece that "If the scope of the Suspension Clause really is meant to be guided by the three-factor framework that Justice Kennedy articulated in Boumediene, one might understand the court of appeals's inclination to otherwise ignore the separation of powers thrust of his opinion," and elsewhere that "whatever one's view of the merits of these outcomes, it seems unfair to claim that, in these contexts, the D.C. Circuit is subverting Supreme Court rules that simply do not exist." At the same time, Judge Bates's (to my mind faithful) application of Al-Maqaleh I reveals a far deeper tension between the Court of Appeals' analysis and Boumediene than had previously been apparent. In particular, even if the three-factor test for extraterritorial application of the Suspension Clause is the sum total of the first holding in Boumediene (and I'm still not sold that it is), it perverts the purpose of such analysis to divorce those factors from the context in which they were enunciated--or from the deeper structural principles they were designed to reinforce.