The last time we covered the progress of the case that I’ll call Al Maqaleh v. Obama II (to distinguish from the first time this case was considered in 2008-2010, Al Maqaleh I), Judge Bates had just granted the petitioners’ motion for leave to file amended petitions for habeas corpus. Al Maqaleh, you’ll recall, is the case that tests whether habeas jurisdiction reaches non-Afghan detainees held at the detention facility that was in 2009 a facility housed at Bagram Air Base and today is the Detention Facility in Parwan (“DFIP”).
Fast-forward a few months, and not only have the three petitioners each filed an amended petition (see Fadi Al Maqaleh’s here), but the parties are now in the throes of arguing the government's motion to dismiss the amended petitions for lack of jurisdiction. [Update: The petitioner's opposition brief is here.] There’s still one more merits brief outstanding—the government’s reply brief—but at this point, the contours of the parties’ arguments are fairly clear, and I predict that the government may end up losing this round. A loss would make this case suddenly, once again, a very big deal. That said, the ultimate outcome on this motion depends on how Judge Bates interprets language in both the Supreme Court’s 2008 Boumediene decision as well as in the D.C. Circuit’s Al Maqaleh I decision.
In Al Maqaleh I, a D.C. Circuit panel of Judges Sentelle, Tatel, and Edwards reversed Judge Bates’s April 2009 opinion denying a government motion to dismiss—the government had moved the court to dismiss the three Bagram detainees’ habeas petitions, and it argued that section 7(a) of the Military Commissions Act of 2006 was constitutional and thus precluded federal court review. Judge Bates disagreed and held that Boumediene counseled the opposite conclusion: Section 7(a), as applied to three non-Afghan detainees held at Bagram, violated the Suspension Clause. Boumediene laid out three factors that were “relevant” in assessing whether habeas was available at detention facilities overseas: (1) the detainee's citizenship and status and the adequacy of the process through which that status was determined; (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.
Assessing each of these three Boumediene factors, Judge Bates wrote that the scale tipped in favor of the petitioners. As to the first factor, he held that the petitioners’ status as enemy combatants was disputed and that they lacked a meaningful administrative process through which to determine that status. On the second factor, he found that the petitioners were captured outside their home country and held at a facility that was quite like the U.S. facility at Guantánamo Bay Cuba. And, finally, any “practical obstacles” that the government invoked as reasons not to extend the writ to Bagram were insufficient to prevent the cases from being heard by a federal court.
The D.C. Circuit, however, disagreed with Judge Bates’s application of Boumediene. It did find that on one of three factors—the adequacy of process at Bagram—the petitioners were similar to the Boumediene petitioners. But the other two factors, it said, weighed significantly in favor of the government. However, the D.C. Circuit also left open a small window for the petitioners to argue that the United States “chose the place of detention” and thus might be able “to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones.” In other words, the D.C. Circuit suggested that the jurisdictional question was still open with respect to a detainee who claimed he was held at Bagram specifically in order to evade process that would be available to him at Guantánamo or in the United States. It was careful to note as well that evidence of evasion didn’t necessarily fall within Boumediene’s three-factor framework (emphasis the D.C. Circuit’s):
Indeed, without dismissing the legitimacy or sincerity of appellees’ concerns, we doubt that this fact goes to either the second or third of the Supreme Court’s enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation. In so stating, we note that the Supreme Court did not dictate that the three enumerated factors are exhaustive. It only told us that “at least three factors” are relevant.
The petitioners took a shot at the opening left by the D.C. Circuit and filed a motion for a panel rehearing, and argued that the government was indeed actively engaged in just that type of evasion. The D.C. Circuit denied the rehearing motion, but noted that its denial was “without prejudice to [the petitioners’] ability to present this evidence to the district court in the first instance.”
And so that is what the petitioners did, by way of a motion to amend their original habeas petitions in their district-court cases before Judge Bates. As mentioned above, Judge Bates granted them leave to amend, writing that while he had “some doubts about the consequence” of the petitioners’ additional evidence, the issue would be “better explored through full consideration of the evidence and the parties’ positions.” The petitioners’ amended petitions, filed in April, present more fully their arguments and assertions that the executive sought to evade judicial review. They reference certain pieces of government correspondence that they believe are relevant to the government’s decisions to detain captures in Afghanistan, as well as several news articles indicating that the government altered the destination for such captures in response to court findings that some prisoners might have some due process rights. They also have put forward that the government plans to retain control over a section of the Parwan Facility and that the U.S.-controlled portion will be used to “interrogate people seized from countries outside Afghanistan.”
The government now has moved to dismiss these amended petitions. It largely presents arguments that mimic those made in its opposition to the petitioners’ motion for leave to amend. It argues that the petitioners’ allegedly new evidence does not change the D.C. Circuit’s analysis of the second Boumediene factor and thus does not trigger entitlement to habeas review:
Petitioners mischaracterize the United States’ detention policy both at Guantanamo Bay and Bagram as one of attempting to evade judicial review, based on the military’s apparent decision not to transfer individuals captured during the armed conflict to the United States or later to Guantanamo Bay, where habeas attaches. Petitioners also challenge the perceived indefinite nature of the United States’ presence at Bagram in terms of both military and detention operations.
The government also addresses the other two Boumediene factors: the sufficiency of the administrative review process available to detainees at the DFIP, and the practical consequences of extending the writ. It argues these two factors also fall in the government’s favor. These factors do not directly implicate the caveat in the D.C. Circuit’s analysis, but they are important for several reasons. As regards the administrative review process, the government emphasizes that the analysis of the “adequacy-of-process” factor has actually changed because the review process considered in Al Maqaleh I has since changed. The new process, which takes place through what is called a Detainee Review Board, or “DRB,” has been “enhanced” in various ways as compared to its predecessor (see here for an overview of the new procedures)—though the petitioners dismiss these enhancements as inadequate and go so far as to claim that the DRB process results in “meaningless” determinations.
On the factor relating to “practical consequences” of extending habeas, the government has two main points: First, evidence of strengthening Afghan judicial institutions, the government argues, “demonstrates that the Afghan government is conducting quintessentially sovereign acts in Bagram, making it even more clear why the DFIP is readily distinguishable from Guantánamo, and bolstering the Court of Appeals’ conclusion that extending habeas to Bagram could complicate U.S.-Afghan relations.” Further, it says, “all of the attributes of a facility exposed to the vagaries of war are present in Bagram,” and counsel against the running of the writ.
Yet here in response, the petitioners here make a simple point that effectively exposes some of the tension in the government’s argument (citation omitted):
Afghan civilian lawyers and witnesses [and others] have travelled to and from these proceedings on the Air Base without incident. In addition to the Afghan trial proceedings, Respondents claim that 1,792 live witnesses have been called to testify in-person at DRBs, and an additional 425 witnesses testified telephonically. All of this has been accomplished despite Respondents’ familiar refrain that the conflict in Afghanistan prevents facilitation of counsel access at Bagram.
Now we return to the government’s arguments that directly play into the D.C. Circuit’s qualification. First, the government emphasizes that because there is no permanence at the Parwan facility, there is also no support for finding that THE second factor—the nature of the sites of capture and detention—still cuts in favor of the government. The nature of the DFIP is nothing like Guantánamo, the government says, because the Afghan government will ultimately “assume full responsibility over detention operations.” It quotes a Joint Statement from the President and President Karzai from May 2010 on that point. The government concedes that the date of the “full transition” is currently unknown, but states that “these fluid operational demands of war in no way call into question the United States’ commitment to support Afghan sovereignty or to transition responsibility for detention operations to the Afghan government.
On the second point—the most important one in light of the D.C. Circuit’s Delphic caveat—the government still frames the issue as though it is part of the second Boumediene factor: the nature of the site of detention. Specifically, the government urges that the D.C. Circuit was correct to find the evasion allegation unsupported either by evidence or by reason:
No supposed “newly discovered evidence” cited by Petitioners changes this analysis. Petitioners allege that between 2001 and 2004, there were some 45 communications involving the Office of Legal Counsel pertaining to the transfer of detainees and habeas jurisdiction and/or litigation. This hardly constitutes evidence of manipulation. . . . Petitioners speculate, based on news articles from 2006 and 2008, that transfers from Bagram to Guantanamo Bay dropped significantly in 2004 in light of the Supreme Court’s decision in Rasul v. Bush, which held that Guantanamo detainees had statutory habeas rights. . . . Petitioners cite media speculation that four high-value detainees were previously at an alleged CIA facility at Guantanamo in late 2003 but were transferred a few months later. According to Petitioners, the government transferred them out of Guantanamo because it had predicted the Supreme Court’s then pending (but not yet argued) decision in Rasul, which was handed down on June 28, 2004.
Asserting that the petitioners’ claims are at best speculation or circumstantial evidence of a curious sequence of events might be the government’s strongest argument on manipulation, but I am a little skeptical that this argument will do much work on a motion to dismiss. As Judge Bates did in Al Maqaleh I, here too he will have to construe the petitioners’ claims liberally, and the petitioners benefit from all favorable inferences that can be drawn from the facts they alleged. The petitioners’ response brief, for its part, predictably references this standard of review and suggests that, even if the court were not convinced on the present allegations, the court should still permit jurisdictional discovery to better inform its ultimate determination. (Judge Bates had suggested the petitioners argue as much when, in granting their motion for leave to amend the petitioners he denied their motion for discovery. He also hinted that they should renew the request in the dismissal briefing.) Indeed Judge Bates seems to prefer assessing such requests when considering dismissal motions; as Bobby mentioned yesterday, Judge Bates did something very similar in Abu Ali v. Ashcroft when he denied the government's dismissal motion and ordered limited jurisdictional discovery.
Finally, even apart from the tough legal standard the government faces on this motion, the government says something that might altogether be fatal for its dismissal motion. The government writes (emphasis added):
If [the petitioners’ evasion] allegations are sufficient to confer jurisdiction, then federal courts would have world-wide habeas jurisdiction because in any war, the United States always has the option of bringing individuals captured during the armed conflict to the United States but may decide not to do so. And yet any such decision may be based on considerations that have nothing to do with any intent to avoid judicial review.
Note that he government stops short of saying that the decisions about where to send prisoners actually had nothing to do with any intent to avoid judicial review, which it seems would have been its strongest counterpoint; instead it said that such decisions “may be based” on something other than avoiding the reach of the writ. Though this distinction likely doesn’t mean anything dispositive—and certainly not at this stage in the litigation—it does raise the issue of what sort of intent on the part of the government matters for purposes of interpreting the significance of the D.C. Circuit’s caveat, and of how a judge might gather evidence of that intent without offending certain executive privileges.
So here are the issues to watch as Judge Bates gets ready to rule: Assuming that Judge Bates’s analysis in this case lines up with the D.C. Circuit’s Al Maqaleh I on the three Boumediene factors—that is, that the petitioners win on the first factor, but lose on the other two—does the “evasion caveat” rise to something of a fourth factor? In the alternative, what happens if the new review procedures tip the balance toward the government on the first factor as well, but Judge Bates finds that evasion occurred? Do all factors bear the same weight or might evasion be dispositive?
My guess is that we haven’t heard the last of this case.
Update/apologies: For anyone who tried to access this post this afternoon and found it missing, we were experiencing a technical glitch. WordPress was apparently hungry and ate the post.