Detention & Guantanamo

The D.C. Circuit's Opinion in the Bagram Habeas Petitions

By Raffaela Wakeman
Monday, December 30, 2013, 4:31 PM

On Christmas Eve, a three-judge panel of the D.C. Circuit handed down its opinion in a habeas appeal brought by three detainees held by the United States at Bagram Air Force Base's Parwan detention facility in Afghanistan. The opinion in the consolidated cases of Al Maqaleh v. Hagel, Amanatullah v. Obama and Hamidullah v. Obama, authored by Circuit Judge Karen LeCraft Henderson, concludes that the federal courts lack jurisdiction to entertain the detainees' habeas petitions.

We've covered these cases in depth.  Below, I offer a basic summary of the D.C. Circuit's most recent ruling. The gist of the opinion is this: a skeptical court won't exercise habeas jurisdiction over the petitioners, who continue to be held in what the court views as war zone.

Judge Henderson walks through some relevant background: the Authorization for the Use of Military Force, Boumediene, and the habeas petitions brought by Bagram detainees, three of whom are appellants this time around. In 2010, and in a ruling that Henderson calls Al-Maqaleh II, the D.C. Circuit had affirmed the district court's dismissal of the Bagram detainees' petitions. The appellate court reasoned that, given the significant differences between Guantanamo and Bagram, as well as the practical difficulties with hearing habeas petitions brought by detainees in a war zone, Boumediene's doctrine---and habeas jurisdiction---did not apply to the Bagram detainees.

But that did not end the dispute.  The detainees afterwards argued that circumstances had changed sufficiently, so as to warrant reconsideration of their habeas petitions. Their new evidence: the U.S. appears inclined to keep the detainees detained indefinitely at Bagram, according to the detainees; the logistical difficulties at Bagram are less severe than they were thought to be in Al Maqaleh II; the U.S. is evading jurisdiction by keeping the detainees at Bagram; and procedures for determining detainability at Bagram are inadequate.

District court judges dismissed these claims, all of which the petitioners had advanced in their respective cases.  That left an argument raised only by detainee Hamidullah---who insisted both that he was a minor when captured, and that his age at the time counseled granting of the writ. A district court rejected that argument, too.

Whither Hamidullah?

Which brings us to the present appeal.  After dispensing with the history, Judge Henderson then moves on to examine whether the recent repatriation of one appellant---Hamidullah---makes his particular petition moot. She looks to the D.C. Circuit's decision in Gul v. Obama, in which the transfer of detainees out of Guantanamo Bay to foreign custody mooted their habeas petitions. In Gul, evidence demonstrating that the United States had relinquished all custody and control was submitted, naturally enough, to the district court; contrast this procedure with the present case, in which evidence---a declaration of Paul Lewis, DoD Guantanamo Envoy---was presented in the first instance to the D.C. Circuit.  The latter, speaking through Judge Henderson, sees significance in the irregularity, and concludes that it "lack[s] the benefit of the district court's examination of the evidence in [Gul.]"  The panel therefore remands the mootness question to the district court, so that it might determine whether in fact Hamidullah is, in fact, in the sole custody of the Pakistani government.

To Boumediene

On to the appellants' arguments about the reach of federal habeas jurisdiction. Assessing them, Judge Henderson applies the three-factor test enunciated in Boumediene. Up first is the "citizenship and status" of the detainees. Judge Henderson dismisses quickly Amanatullah's argument that his Pakistani citizenship is relevant: the only citizenship that would be relevant under Boumediene---or at least that would weigh in favor of granting the writ---is U.S. citizenship, she writes. As to "status," the detainees' designation as "enemy combatants" is relevant there, not their "alien" status, nor any other "individual characteristics," including their being cleared for release. The latter, says Judge Henderson, is irrelevant to the "status" calculus under Boumediene; Henderson likewise rejects Amanatullah's argument that his "actual status" weighs in favor of release. That, in her view, is but an attempt to bypass the jurisdictional question to reach the merits. Batted away for irrelevance, lastly, is Amanatullah's request for jurisdictional discovery seeking the factual basis for his detention.

The D.C. Circuit next turns to the adequacy of the status determination process at Bagram. The court compares the procedures in the case at hand to those in the Combatant Status Review Tribunals (CSRT) assessed in Boumediene. The court had not reviewed the current procedure, the Detainee Review Board (DRB), in Al Maqaleh II, as none of the detainees' statuses had been reviewed by a DRB at that point. In Al Maqaleh I, the court determined that the procedure at the time, the Unlawful Enemy Combatant Review Boards (UECRBs), were less like habeas proceedings than the CSRTs. But thereafter, the DoD replaced the UECRBs with the DRB framework. The court's analysis of the DRB is quite succinct, taking up a single paragraph in the opinion: DRB procedures, according to the ruling, are "undoubtedly more akin to traditional habeas proceedings" than were the UECRBs. Process-wise, that cuts against the detainees here.  

The "Nature" of Bagram

The detainees argued that the nature of Bagram has changed since Al Maqaleh II, in which the D.C. Circuit concluded that Bagram was more like the prison in Germany at issue in Johnson v. Eisentrager than like Guantanamo, and that there the United States had evinced no intent to occupy Bagram indefinitely. The appellants point to three particular developments that, in their view, point to a more permanent detention operation: the United States' transfer, to Afghan government custody, of Afghan nationals held at Bagram, along with its continued detention of non-Afghans; the ongoing and indefinite character of the United States' war on terror; and the substance of the new U.S.-Afghan agreement regarding use of Bagram.

Judge Henderson bats this infinite-sounding stuff away. She notes, for example, the recent transfer of one of the very appellants in this case, Hamidullah, out of Bagram and back to his home country. As for the detainees' claim of Forever War, Judge Henderson rejects that, too, and instead credits the United States' insistence that it has no intention of remaining in Afghanistan permanently.  The bilateral accord, and transfer of Afghans to Afghan control, figure in her analysis here. It likewise compels Henderson to disagree with the petitioners' final "nature"-related claim, that the "through 2014" language in the U.S-Afghanistan agreement leaves open the possibility of an extended American presence in Afghanistan.  A U.S. presence "through" 2014, is not the same as an indefinite presence, in the court's view.  All this jibes with the court's earlier conclusion in Al Maqaleh II: that U.S. control over Bagram and its facilities "lacks the permanence of U.S. control over Guantanamo," and cuts against an exercise of habeas jurisdiction.

Practical Obstacles

Step three in the Boumediene recipe is a consideration of "practical obstacles inherent in resolving the prisoner's entitlement to the writ." The uncertainties and risks of a war zone seem to count as obstacles.  The responsibility of determining whether the United States is at war lies with the political branches, Judge Henderson writes; the political branches moreover have said that the government is indeed at war in Afghanistan.  The court acknowledges that with "sufficient resources," habeas petitions might be entertained at Bagram---but that's not really the question here.  As for what is, consider Eisentrager's framing: the question there was whether military participation would "divert efforts and attention from the military offensive abroad to the legal defensive at home." That formulation, along with Eisentrager's conclusion, supports the government's position.

The detainees had put forth evidence about the less serious obstacles to holding habeas proceedings at Bagram.  The key was a letter signed by the Afghan President's Chief of Staff, and allegedly indicating the Afghan government's support for granting habeas rights to Bagram detainees.  Here the appellate court agrees with the district court's conclusion that the letter did not, in fact, represent the Afghan government's formal policy.  And Judge Henderson declines to take up the letter's meaning, citing to the D.C. Circuit's most recent opinion in Zivotofsky v. Secretary of State.  (The latter relevantly stated that the President ought to be the sole source of official statements regarding the United States' relations with foreign powers.) But even setting aside the constitutional question, Judge Henderson also writes that courts aren't endowed with the "institutional wherewithal" to weigh the letter's meaning: "Contemporaneously with the writing of the letter, other Afghan officials apparently issued public statements on Afghanistan's detainee policy which conflict with the letter's rather cryptic statement."

The opinion then takes up the appellants' argument that the district court had over-weighed the importance of the third, "obstacles" factor, in relation to the others. On that, Judge Henderson again looks to Al Maqaleh II and finds it determinative, given that the facts haven't changed "relevantly" since that decision. In that respect, the court is just following its precedent, according to Judge Henderson. But she adds that more than precedent is in play here.  Even if the court were to revisit Al Maqaleh II, the detainees' arguments still would be "entirely misplaced in the context of petitions arising from a war zone."  The separation of powers counsels caution here, in Judge Henderson's view. For Bagram, unlike Guantanamo, lies in an active theater of war.

Evading Habeas Jurisdiction

Judge Henderson then wraps up by addressing the detainees' last contention: that the purpose of their detention at Bagram is to prevent them from being afforded access to the habeas writ. While the D.C. Circuit thought this "utterly incredible" in Al Maqaleh II, the detainees now insist that there is evidence to support their view. Judge Henderson offers her own interpretation of the detainees' arguments: "an appeal for universal extraterritorial application of the Suspension Clause." That certainly wasn't the Supreme Court's intent when it penned Boumediene, she writes, citing Al Maqaleh II for the umpteenth time.

The court ends by noting the limited reach of its decision.  It does so with a hypothetical.  Were a detainee to be captured by the U.S. within a court's constitutional habeas jurisdiction, and then transferred out of the jurisdiction---while still remaining in U.S. custody---then that detainee's claim would be "more compelling" than the argument put forth appellants in this case.