Here’s a quick read-out from Tuesday’s oral argument in a trio of cases concerning detainees captured outside of Afghanistan, but eventually transferred to the custody of the U.S. military and held at a facility at Bagram airfield.
The day involved, as Raffaela reported earlier, two separate arguments. The first merged the Al Maqaleh and Amanatullah cases, and consisted mostly of debate over whether new evidence should, under the Supreme Court’s Boumediene ruling, allow the petitioners to seek writs of habeas corpus. The second concerned the Hamidullah case and some unique questions surrounding the named petitioner there---who was apprehended before he reached the age of majority, yet like the other petitioners, was eventually transferred to U.S. custody at Bagram.
As the D.C. Circuit now makes audio recordings of its oral arguments available on its website, here are the Al Maqaleh and Amanatullah and the Hamidullah audio files---for those who want to listen for themselves.
Al Maqaleh and Amanatullah
Tina Foster, lawyer for petitioners in Al Maqaleh, opened with three developments since that case’s first go-around at the court of appeals, each a changed-since-last-time circumstance which ought, in her view, to support jurisdiction at Bagram: first, the United States’s participation in numerous criminal trials of certain detainees at the prison; second, the Afghan government’s official, explicit disclaimer of any opposition to non-Afghan court review of these detentions; and third, her clients’ continued detention at a U.S.-run detention facility at Bagram. (Authority over most detentions there have been handed off to the Afghan government.) The third development, to Foster's mind, signals an even greater commitment, on the United States's part, to detain the Al Maqaleh group permanently. And it prompted skeptical questions from Judge Thomas Griffith and Senior Judge Stephen Williams. (Judge Karen LeCraft Henderson, the panel’s presiding judge, didn’t utter a peep all morning---other than to inquire about, and briefly to adjust, the allotment of lawyer argument time.)
The two talkative appeals court judges asked about the United States’ intentions for the new facility, and its significance for Boumediene’s application. For Judge Griffith, a diminution in the U.S. presence at Bagram seemed to hurt Foster’s client, in that such a drop suggested a less “indefinite” detention than before---and, thus, a less pressing need for habeas jurisdiction. For his part, Senior Judge Williams puzzled over the Boumediene court’s use of the word “indefinite.” There, the term had to do with would-be U.S. sovereignty at Guantanamo, and not the duration of detention, as Foster seemed to suggest in her opening remarks.
The detainees’ lawyer drew much different conclusions from the facts of her clients’ ongoing detention, in the face of declining U.S. detention operations in Afghanistan. This suggested to her an even firmer resolve to detain them for the foreseeable future. After all, she said, when the parties last appeared before the appellate court, the government said the United States was getting out of the detention business altogether---and that the move counseled against court review of the petitioners’ cases. And yet her clients still linger, despite being cleared for release and despite the United States’ transition of control over most detentions at Bagram to Afghan officials. Foster also answered a follow-up inquiry from Judge Griffith, about Boumediene and Justice Robert Jackson’s opinion in Eisentrager. The latter, he observed, rejected challenges to certain detentions as potentially corrosive of military authority and prestige; what did Foster make of Jackson’s language? The lawyer rejoined that Boumediene would have come out quite differently if this feature of Eisentrager mattered most.
She then pivoted to the Afghan government’s evolving, seemingly more receptive stance to habeas. Her side had produced a letter from Abdul Karim Khurram, Afghan President Hamid Karzai’s Chief of Staff. In it, he expressed Afghanistan’s support for court review of Bagram detentions like these. The letter puzzled Judge Griffith. He said he didn’t know what to make of it in light of Zivotovsky---this made clear to him that only the executive branch (and not detainees) can determine who represents foreign governments, and what those governments are really saying. At the same time, Senior Judge Williams wondered about Karzai’s absence from the correspondence. Did that suggest disapproval, or less serious interest, on his part? Certainly not for Foster, who argued that in the Afghan system, the Chief of Staff acts as mouthpiece for the President. In any event, she said, the United States has put forth no evidence since the letter’s submission to undercut Foster’s claims about Afghanistan’s seeming embrace of U.S. court jurisdiction. It’s our supported allegation versus the United States’ unsupported objection, she said.
Next the baton passed to lawyer Eric Lewis. He argued on behalf of another detainee, Amanatullah, and focused on one key issue: the extent to which the United States, in detaining petitioners, had sought to avoid federal jurisdiction. In 2004, Lewis’s client had been picked up by the British, in Iraq, and then eventually spirited to Bagram. The history matters, the lawyer argued, given Judge Griffith’s query about Eisentrager, Boumediene, and a possible undercutting of military prestige and authority. In the attorney’s view, the second case greatly narrowed or even blasted away the first, by linking the writ’s reach to a flexible legal analysis. But to the extent that Eisentrager’s “courts shouldn’t muck with battlefield commanders” approach survived, Lewis argued, only one such commander might be offended by the exercise of jurisdiction here: a British one. Where’s the interference with battlefield discretion?
Judge Griffith asked about the petitioners’ evidence---chiefly affidavits, in which, among others, the former Chief of Staff to the Secretary of State said that, although the initial decision to send petitioners to Bagram was perhaps taken partly for intelligence reasons, the decision to keep them there likely reflected a desire to avoid judicial review by U.S. courts. The first part troubled Judge Griffith, in that it suggested a mix of various motivations besides evasion, and hinted at an ad hoc, detainee-by-detainee assessment of habeas jurisdiction. Taking a note from Foster, Lewis here emphasized that his side had put forth the only evasion evidence in the record---and that his side’s evidence pointed to a clear policy change in 2004, when the United States would stop transferring detainees to Guantanamo. That furnishes prima facie proof of evasion, Lewis said, which the government hadn’t bothered to rebut.
The lawyer ended with a small but important procedural point: the district court had not considered its evidence of evasion in any event. During proceedings below, Judge Lamberth had dismissed any such evidence as publicly available doing the case’s first visit to the court of appeals. But, Lewis told today’s panel, Judge Lamberth was simply mistaken on that point, as affidavits from Lewis and company were never before the D.C. Circuit at all. That alone warrants a limited remand to the habeas court.
The government’s attorney, in both the first and second arguments, was Sharon Swingle. Her colloquy with the court boiled down to a debate over what it might do, if it indeed confronted evidence that the executive branch had played fast and loose, by conducting its detentions in a manner designed to circumvent lawful habeas review.
She began with some context. Historically, evasion meant one thing only, according to Swingle: the executive’s having spirited a person initially within the court’s jurisdiction to some place beyond it. Hewing to that approach here would preserve a long standing legal limit---in contrast to the petitioners’ approach that, in her view, contemplates worldwide federal habeas jurisdiction over military detentions. Judge Griffith pressed her a bit about the functional difference between keeping a detainee from ever coming within court jurisdiction, and removing a detainee from that jurisdiction in bad faith. Again, the limit mattered most to the lawyer: rule for the detainees here, she seemed to answer, and Boumediene will be broadened beyond recognition. She added that, in any event, the court below already heard and rejected petitioners’ allegations and evidence of evasion---and this whole dispute is supposed to be about changed circumstances.
And what about the evidence? To Swingle’s eye, petitioners’ affidavits did not really claim that petitioners were transferred to Bagram for purely court-avoiding reasons. Instead, as Judge Griffith had pointed out, intelligence concerns also figured in the transfer decisions. Moreover, the affidavits employ speculative language; the affiants appear to lack legally required “personal knowledge,” so as to make their inferences about detainee policy reasonable. (Indeed, some of those inferences appear quite flawed, in Swingle’s view, as the transfers here took place, for example, before the Supreme Court took up Guantanamo habeas matters. In an uncertain legal environment, what counts for evasion, anyway?) When pressed about how far a detainee might get with better evidence of system-gaming, the government lawyer emphasized: that simply is not presented by this record. She concluded with two points, one regarding Justice Jackson’s remarks in Eisentrager (they cut against habeas review where detainees are held in an active combat zone, which matches the situation here), and another regarding petitioners’ subsequent clearance for release (it doesn’t matter).
The petitioners’ lawyers in Al Maqaleh and Amanatullah, Foster and Lewis, rose one after another for brief replies. Foster underscored the government’s ongoing evasion of judicial review, and, in response to a question from Judge Griffith, doubted the intelligence case for petitioners’ detention. If intelligence, and not evasion, truly was once the justification, then it surely has disappeared by now. After 13 years, what intelligence value could a third country national have in Afghanistan? In any event, Foster said, we’re talking about our evidence. The United States never has explained petitioners’ detention.
Next came Lewis, who joined Foster’s complaint about the United States’ stubborn silence; he’s never seen a case with such a vacuum of information. Given that vacuum, it makes no sense to challenge, for example, the affiants’ lack of personal knowledge. Indeed, the United States’s very position precludes counsel, the petitioners, and petitioners’ witnesses from obtaining such knowledge in the first place. Lewis adds that he had sought the opportunity to better develop the factual record, by means of limited, jurisdictional discovery---but was denied by the district court. Judge Griffith, seeking clarity, asks: so the lower court abused its discretion? It did, Lewis says.
John Connolly, attorney for detainee Hamidullah and his father Wakeel Khan, had the podium next. He swiftly adopted the arguments presented by Al Maqaleh and Amanatullah counsel, and moved on to the uniqueness of his client’s situation: Hamidullah was a minor when he was captured in Pakistan. The district court’s dismissal of his case thus contradicted historical case law surrounding minors' access to habeas corpus. Judge Griffith interjected to clarify the scope of the habeas cases cited by Connolly---which involved the merits, and not (as most relevant here) a court's jurisdiction to entertain the petitions. Connolly responded that when a custodian is within a habeas court's jurisdiction (much as the President, respondent here, undoubtedly is), the courts historically have required the custodian to make a return articulating the lawfulness of a child’s detention, even when a children was spirited away from the jurisdiction. More broadly, under common law, habeas corpus standards have been more flexible when it comes to children. Courts throughout history (in the U.S. and elsewhere) thus ensured that children had some form of remedy to challenge their detention.
Senior Judge Williams posed an alternative scenario to Hamidullah's counsel, wherein Hamidullah was spirited out of the court’s jurisdiction, rather than never being in it in the first place. Rather than addressing the hypothetical directly, Connolly explained that the court’s jurisdiction certainly extends to the custodian in both scenarios---that is, the President of the United States or the Secretary of Defense---and the child isn’t the only party with a stake here; significantly, the parent, too, has an interest in seeking a writ. The custodian is acting in loco parentis, and has taken away the parent’s right to his child, and since the court has jurisdiction over the custodian, then the court can consider this petition.
The attorney then shifted to the consequences of detaining children, without permitting them or their parents to challenge the detaining authority. Hamidullah has been detained for a quarter of his life, hasn’t been segregated from the adult population, and hasn’t had access to family, counsel, or other support systems. Prolonged detention of this nature therefore deprives the child of the opportunity to develop into a fully functioning adult. Further, Connolly explained, the courts’ opinion on detention of children stems directly from the early habeas cases: courts must have the opportunity to consider who’s better situated to have custody over the child, the state or the parent. Custody law has its roots in habeas cases, he finds.
Judge Williams was skeptical of this argument, as Connolly’s points addressed the merits of the case, not the jurisdictional question before the court. But the lawyer thought differently, given Boumediene's "status" factor---which courts must consider, in assessing the writ's reach and, thus, the jurisdiction of federal courts. Of course Boumediene mentioned two different statuses, “enemy combatant” and “war criminal,” the counsel explained. But that list wasn't exhaustive. And the law sets forth all kinds of different statuses, each of which matter under Boumediene, and each of which confer different rights to the detainees---think, medical personnel and chaplains, for example. And the most important, sensitive status of all, as we know, is childhood. As support here, Connolly cites international conventions and U.S. policy, both of which affirm the need to protect children as a class. There's also a federal statute, which criminalizes the recruitment of child soldiers. If the U.S. finds jurisdiction to prosecute those responsible for bringing children into hostilities, Connolly suggested, it also should have the authority to adjudicate the lawfulness of detaining children during them, too.
Sharon Swingle, representing the government, focused on Detainee Status Review Boards and Hamidullah’s current status as an adult, at least under the petitioner’s statement of the facts. This prompted Judge Griffith to seek clarification that the relevant age one might use is the age at capture or upon petitioning for a writ, not his age at this very moment. The twice-annual DSRBs assess the lawfulness of each detainee’s continued detention---not his initial detention, that is---de novo. All three Boumediene factors, not simply status, should be considered; placing undue weight on a detainee’s age at capture would, fears the government, encourage other detainees to falsely claim that they too were minors at the time of capture. She cites Omar Khadr's brief in Boumediene as evidence that the Supreme Court was on notice that some individuals held at Guantanamo were minors. (Khadr is the former Guantanamo detainee, a minor when captured, who was recently transferred to Canadian custody following his guilty plea in a military commission.) The government attorney addressed another bone of contention between the parties in her wrap-up: minor detainees are separated from the adult population, and afforded access to religious study.
Connolly had brief remarks in rebuttal, to share his surprise at learning that his client had a DSRB hearing this past April (it’s the first he’s heard of it), to reemphasize the government’s error in determining Hamidullah’s age at the time of capture, and to clarify that he has no evidence that his client was segregated from the adult population in Bagram prison.