Detention: Operations in Afghanistan

An(other) Al Maqaleh Update

By Larkin Reynolds
Wednesday, November 16, 2011, 9:04 PM

When we last looked in on Al Maqaleh v. Gates, the case seeking to extend the right to federal habeas review for non-Afghan detainees held in the U.S.-controlled detention facility in Afghanistan, the petitioners and the government were briefing the government’s motion to dismiss. I will assume some reader familiarity with these developments, including that the government had not yet filed its reply brief on that motion to dismiss. But here's a brief overview: In its 2010 decision in Al Maqaleh ("Al Maqaleh I"), the D.C. Circuit reversed the district court and held that federal habeas jurisdiction did not extend to these petitioners. It also said, however, that Petitioners could present evidence to the district court on whether the government had attempted to manipulate judicial review--a suggestion it had not addressed in the merits ruling.  And so the petitioners did just that.  Now that the case is back in the district court, the government has again moved to dismiss the amended petitions for lack of subject matter jurisdiction, arguing that Al Maqaleh I continues to preclude habeas jurisdiction because the evidence the detainees allege is “new” is not really new at all.  Petitioners responded in their June opposition brief that ongoing developments at Bagram are relevant to each prong of the Boumediene analysis, and that the district court must undertake a thorough analysis of these facts to discern the reach of the Suspension Clause.  In the alternative, they argue the court should grant jurisdictional discovery so that they might learn additional pertinent facts to support their arguments.

Since that last update, the government has filed its reply brief on the dismissal motion.  The reply brief opens by charging that the petitioners have conflated two distinct issues: (1) whether the United States has the core authority to detain the petitioners under the 2001 Authorization for Use of Military Force (“AUMF”) and (2) whether the results of the process used to review the policy behind a continued detention in Bagram—i.e. its wisdom in a particular case, as opposed to its legality—are relevant to that authority.  The government asserts that these non-legal determinations, which take place in the context of the Detainee Review Board (“DRB”) procedures but in a parallel process separate from the detainability determination itself,  are irrelevant to the habeas question. In any event, the fact of the government's having inadequate detention review processes was not on its own sufficient “to tip the constitutional balance in favor of extending the writ to Bagram” in Al Maqaleh I.  What remains, the government says, is the “familiar argument that the Executive manipulated Petitioners’ place of detention to evade judicial review.” This is flawed, the government argues, because for a court to find that evidence of manipulation is a trigger for habeas review would mean “world-wide reach of the writ in every war where the United States has detained alien enemy forces abroad.”

This is not quite true as a logical matter, unless the government is admitting to making every choice of where to house each detainee based at least in part on where the courts could and could not exercise habeas jurisdiction. But the government is still loath to concede it might be proper for a court to consider the motives behind a government’s selection of a detention site in assessing habeas jurisdiction.  The government also writes that “plenary control” over the detention site was insufficient to confer habeas jurisdiction in Boumediene, so even if the petitioners are correct that the government has more control over them than it does over the Afghan detainees, it is “beside the point.”  Finally, responding to the petitioners' alternative request for the court to at a minimum grant jurisdictional discovery on these questions, the government states that the petitioners have based their request on the “pure[ly] conjecture[al] notion" that “the Executive may harbor some secret intention to occupy Bagram permanently despite official statements to the contrary.”

Also interesting in this brief is that the government quotes rather extensively from the transcript of oral argument at the D.C. Circuit.  During the argument, Judges David Sentelle, David Tatel, and Harry Edwards all pressed the petitioners’ counsel to articulate a limiting principle by which the panel might be able to recognize the reach of the Suspension Clause at Bagram without coming into conflict with Johnson v. Eisentrager.  (In Boumediene, Justice Kennedy’s majority opinion had tread carefully around Eisentrager, leaving its precedent intact and instead distinguishing it based on differences between the Guantanamo prisoners and those in Eisentrager.)  Petitioners’ counsel was unable to do so at oral argument, the government contends, because it would be impossible to do.  The government seems to be cautioning the district court that the D.C. Circuit would be no more persuaded if this case were to come before it once again.

Before Judge Bates could rule on the motion to dismiss, however, the petitioners moved for leave to file over 100 pages of supplemental materials to bolster their June opposition to the government’s dismissal motion.  The government opposed the motion, asserting that, while it has nothing to hide, nothing the petitioners proposed to introduce into the record would change the Boumediene calculus.  It stated that, like the evidence presented in the habeas petitions—which the government is careful to characterize as “allegedly ‘newly discovered’” (emphasis mine)—the supplemental materials were irrelevant and would do nothing to change the fact that the D.C. Circuit’s first Al Maqaleh opinion would govern any new challenge the petitioners are able to conjure up and deny jurisdiction over the petitioners’ cases.

Last month, Judge Bates granted the petitioners’ motion to supplement their opposition motion in a straightforward docket entry.  The new materials that are now officially part of the record include documents to support four main points: First is a document explaining the criteria of the "enduring security threat" status determination procedure (which is distinct from the Detainee Review Boards) that the petitioners have said shows the  "arbitrariness" of the current detention system as well as its lack of accountability.  The petitioners learned that this document exists, albeit in a still-classified form, because the ACLU obtained it in a separate Freedom of Information Act (“FOIA”) suit.  In that suit the ACLU and the government are in a dispute about its accidental disclosure. In any case, the petitioners aruge the document is "directly relevant" to the Boumediene analysis in their own case.  Second, the petitioners offer information published after they filed their opposition brief that relates to construction of a new detention facility in Afghanistan.  The information suggests the facility will be controlled by the U.S. government and “used to house detainees in U.S. custody . . . well after the transfer of a portion of the Bagram facility to the Afghan government.”  Third, petitioners want to introduce a published account by former CIA interrogator Glenn Carle.  Carle wrote that one of the original four Al Maqaleh petitioners—the one whose petition Judge Bates initially denied—was an “innocent man” kept in prison unjustly for eight years.  The petitioners argue that the account underscores the “unreliability of the Executive’s status and detention processes and determinations as well as the consequent necessity of meaningful judicial review.”  And finally, information published about a government investigation of the prisoner deaths at Abu Ghraib revealed details about the CIA’s so-called “ghosting” program; this information, in combination with the fact that one of the petitioners had been imprisoned by the respondents at Abu Ghraib, shows that certain components of the government’s detention programs are “designed to evade all forms of oversight.”

The government submitted its last word on the new materials at the end of October.  The government disavowed the importance of the materials, largely repeating similar arguments from its initial brief opposing them, sometimes verbatim.  That the “Enduring Security Threat” information is irrelevant to the jurisdictional question, because of the same type of "conflation" mentioned above. The degree of control the United States exercises at Bagram is also not illuminating, as both Judge Bates and the Court of Appeals have rejected the notion that construction activities are relevant to the jurisdictional calculus. The information revealed in Carle’s book does not cast doubt on the DRB process at Bagram, the government says.  And finally, the petitioners' proffered information about detainee deaths is but a ploy to provoke outrage about the “injustice they contend was done to that detainee in Iraq,” rather than a serious piece of evidence bearing on the jurisdictional question.

Now that the flurry of supplemental materials filings has subsided, the question for the court has returned to the more pertinent issue of subject matter jurisdiction.  If Judge Bates denies the government’s motion, as he did on the first round that led to Al Maqaleh I, he would likely certify the decision to the Court of Appeals as he did in that case.  Then again, he could still grant the petitioners’ motion for additional discovery on the question of evasion.  Since evasion was the one specific element the Court of Appeals left unexplored in its merits ruling, it would seem fully within the spirit of that decision for Judge Bates to permit additional disclosures so the parties can fully brief the precise issue rather than make cursory statements about hypotheticals.  That said, it’s entirely possible that doing so would open up a maelstrom of executive privilege and state secrets questions, or even that the question will simply be mooted by changes yet to come in Afghanistan detention operations.

We'll stay tuned.