Detention: Operations in Afghanistan

Oral Argument Preview: The Bagram Habeas Petitions

By Raffaela Wakeman
Monday, September 16, 2013, 7:34 PM

The question before a three-judge panel of the D.C. Circuit Tuesday morning: can a group of detainees held by the United States at Bagram airfield, in Afghanistan, challenge their detentions by petitioning for writs of habeas corpus?   It is presented in three cases, Al Maqaleh, Amanatullah, and Hamidullah, all of which were dismissed by District Court judges in 2012 for lack of subject matter jurisdiction. Petitioners appealed.

There's some important procedural history.  In Al Maqaleh, the district court---in the person of U.S. District Judge John Bates---had applied the Supreme Court's Boumediene decision and held that petitioners in that case could seek the writ.  But Judge Bates also granted the government’s request for interlocutory appeal. A D.C. Circuit panel then dismissed the petitions for lack of subject matter jurisdiction and denied the detainees' petition for rehearing en banc.  However, in doing so, the court of appeals also introduced some ambiguity, by suggesting that petitioners might find themselves on stronger footing if they could demonstrate that the United States deliberately had detained them in locations beyond judicial review.  The court of appeals thus returned the case to Judge Bates, who allowed the Al Maqaleh petitioners to present additional evidence that might undermine the appeals court's earlier ruling. Yet, after further briefing and argument, he reached the same conclusion as the upper court had earlier---and thus dismissed the Al Maqaleh case on jurisdictional grounds.  (Hamidullah was dismissed by Judge Bates, alongside Al Maqaleh, and Amantullah was dismissed by a different district judge, in light of Al Maqaleh.)

Which brings us to oral arguments tomorrow, at 9:30, before Circuit Judges Henderson and Griffith and Senior Circuit Judge Williams.   The Al Maqaleh and Amanatullah teams will share a single, 15 minute time allotment, and the government will receive 15 minutes as well.  Hamidullah will see a separate argument immediately thereafter, with both parties in that case getting ten minutes to make their presentations.

Petitioners in the three cases filed opening briefs and replies; the government filed the same responsive brief in each.   

Briefs of the Detainees in Al Maqaleh, Amanatullah, and Hamidullah

Al Maqaleh 

There are three petitioners in the Al Maqaleh appeal, two Yemeni and one Tunisian. All were captured outside of Afghanistan, held at CIA black sites and ultimately transferred to the Bagram Theater Interment Facility---known more recently as the Detention Facility in Parwan. On appeal, the Al Maqaleh petitioners deliver a broadside against Judge Bates's dismissal, arguing that he ignored or mistakenly evaluated newly-presented evidence under Boumediene's multifactor analysis about the writ's reach.  One factor has to do with "practical obstacles" to habeas jurisdiction, as Boumediene put it; in that regard, the detainees observe that any such obstacles have since disappeared, as the United States has held many criminal trials at the base, and the Afghan government itself does not oppose federal habeas review of detentions of non-Afghans captured outside Afghanistan and now held at Parwan.  Other parts of Boumediene's analysis also were misapplied by the district court, and ought now to resolve in their favor---in the Al Maqaleh petitioners' view.

Amanatullah

Amanatullah is a Pakistani who was captured by British forces in Iraq in 2004 and ultimately handed over to the U.S. military.  His case was dismissed by District Court Judge Royce Lamberth in November 2012, in light of Al-Maqaleh.  In his brief, Amanatullah says the lower court wrongly treated his case as a “cookie cutter replica” of Al Maqaleh.  But it was and is different, argues the detainee, and had the district court granted his request for limited, non-classified jurisdictional discovery, then Judge Lamberth would have learned as much.  The detainee also argues that the district court applied an incorrect evidentiary standard, and that its analysis of Boumediene “practical obstacles” and "status" factors was incorrect.  Amantullah also strongly emphasizes that the United States has cleared him for release.

Hamidullah

Last in the petition-dismissed-on-jurisdictional-grounds trio is Hamidullah, a Pakistani who was---he says in his opening brief---fourteen years old at the time of his 2008 capture.  In this respect, petitioner points to a school record putting his date of birth at November 27, 1993.  The detainee further alleges that he was housed inappropriately with adult prisoners and wasn’t “accorded treatment appropriate to his age.” All this runs counter to the position of the Department of Defense.  It insists Hamidullah confirmed he was 17 or 18 years old at the time of his capture, also cites medical test results that reached the same conclusion.  Hamidullah also stresses that detainee treatment standards are different for children:

An overwhelming body of laws, rules, and treaties, both domestic and international, reflects a worldwide consensus that children should be protected from detention, and released as soon as practicable. These standards include not just children who are innocent bystanders to war, but so-called “child soldiers” who may have acted as belligerents. These and other authorities establish that childhood is a legal “status” that is jurisdictionally significant, if not dispositive.

The process at Bagram does not meet those standards, he continues, as prison rules prohibit assistance to detainees by anyone other than a “personal representative”---who, according to Hamidullah, receive no training as legal guardians and are inadequate to represent children.

Hamidullah explicitly adopts applicable arguments advanced by the Al Maqlaeh petitioners, but also advances some case-specific claims.   He says, among other things, that the history of habeas corpus and Boumediene itself support the writ's extension where, as here, the petitioner is a child at the time of capture.

The Government’s Response Brief

The government filed a common response brief in all three cases.  Its gist is this: petitioners' evidence does not change anything, and thus supplies no reason to alter the conclusion that Boumediene---and habeas jurisdiction----does not run to them.  Along the way, the United States knocks down petitioners' contentions about "practical obstacles"---and their emphasis on criminal trials and the Afghan government's stance towards habeas review. To name a few hypothetical obstacles that might follow an exercise of jurisdiction here, U.S. military officials would be burdened with the costs of facilitating habeas proceedings, overseeing discovery, and arranging testimony, among other things.  For that matter, judicial review also might in fact injure an already delicate U.S.-Afghan relationship.

That relationship matters to the government's position in other ways, too.  Take the United States' transfer of control over the Bagram facility to the Afghan government.  That supplies a reason  to affirm the District Court’s ruling, not to reverse it, as petitioners suggest.  The diminishing U.S. role at the base also undercuts petitioners’ claim that the U.S. military intends to detain the petitioners indefinitely.  As for what happens so long as the petitioners are detained, the government emphasizes improvements in detainee review board procedures---which sound in another Boumediene factor, regarding "adequacy of process," and weigh against bringing habeas to Bagram.

Naturally Hamidullah’s age-related arguments receive special attention from the government. While it concedes that courts have “traditionally” entertained habeas petitions brought by juveniles, the United States claims that there is nothing “jurisdictionally unique” about children seeking habeas corpus petitions---such that Hamidullah's claims ought to be aired in federal habeas court.  The government also is anxious about the consequences of entertaining Hamidullah’s petition; it fears that doing so would motivate other habeas petitioners to claim that they too were children at the time of capture.

Reply Briefs

In separately filed reply briefs, petitioners in the three cases advance a common counterargument: that the government failed to address their arguments at all.  For Al Maqaleh, the allegedly unrebutted claims concern the lower court's incorrect application of the Boumediene factors, and its failure to accept certain uncontested allegations as true.

In his reply, Amanatullah goes a bit further than Al Maqaleh.  The former says that because the United States has not opposed the detainee's arguments about district court errors, then it must be taken to concede them.  To Amanatullah's eye, the government's brief also suggests some new flubs by the district court, ones he had not identified earlier on in the briefing---the district court's abdication of responsibility for determining Amanatullah’s detention status, its failure to evaluate the nature of his apprehension site (Iraq) and detention site (Bagram prison) for jurisdictional purposes, and its willy nilly acceptance, without evidentiary support, of the government's assertions.

Last is Hamidullah, who once more emphasizes why the court should entertain his habeas petition: his age at the time of capture.  That should be taken into account here, and supports jurisdiction, he says.