Detention: Law of

Read-Out From Motions Hearing in Al-Maqaleh and Hamidullah

By Wells Bennett
Monday, July 16, 2012, 11:02 PM

Here’s your off-the-cuff read-out of this morning’s hearing before U.S. District Judge John Bates in Al-Maqaleh v. Gates and Hamidullah v. Obama, better known as the “can we get a little GTMO-style habeas review over U.S. detentions at Bagram” cases

In short, the court unsurprisingly pushed both sides and revealed weaknesses in their respective positions.  Despite this balance, my tentative sense is that the petitioners' new evidence did not obviously persuade Judge Bates that he should reach a result different than that reached by the Court of Appeals, and again exercise habeas jurisdiction over certain U.S. detentions at Bagram.  I’d guess, in other words, that he leans now towards granting the government’s motion to dismiss in both cases.  (I say “tentative,” because Bates agreed to accept additional written submissions from both the petitioners and respondents, and some parts of the day’s argument seemed to turn on information that both wished to supplement.  I’ll also add that my crystal ball – such as it is – seems to be very much on the fritz these days.)

The district court earlier had sided with three of the petitioners, non-Afghans who had been detained by the United States at Bagram Air Force Base facility.   Today’s hearing centered mostly on whether this group – comprised of lead petitioner Fadi al-Maqaleh, Amin Al-Bakri and Redha Al-Najar - stands in a meaningfully different position than it did in 2010, when the D.C. Circuit had overturned Bates’ original conclusion that the three could challenge their detentions.  Judge Bates today was interested in any new, post-2010 information that the trio’s attorney, law professor Ramzi Kassem, could put forward; and precisely how such new material would support an exercise of habeas jurisdiction under the multifactor analysis set forth by the Supreme Court in Boumediene and interpreted by the Court of Appeals.  The same does-habeas-apply-here question, but not any need to demonstrate a change in position since 2010, confronted a fourth non-Afghan petitioner, Hamidullah.  He too had petitioned for release, but only a few days before the Court of Appeals’ decision in Al-Maqaleh.  Hamidullah's suit has not yet reached a merits ruling by Judge Bates.  While he joined in the arguments advanced by lawyers for the other detainees, Hamidullah’s attorney, John Connolly, separately argued that his client’s tender age at the time of capture – 14 – bolstered the case for Boumediene’s extension in his client’s case.

This was the context for the hearing: a dispute over the writ’s territorial reach, ongoing before a judge who has sympathized with the petitioners’ arguments before, but who also thoroughly understands - from firsthand experience - the Court of Appeals’ skepticism about Boumediene and its application to places other than Guantanamo. 

Such attributes were evident in Judge Bates’ evenhanded questioning.  He repeatedly pressed the government’s lawyer, Jean Lin, about what might happen if, four years from now, the U.S. had withdrawn from Afghanistan and left only a token force at Bagram to conduct detention operations there.  Could the writ extend to Bagram under such circumstances, even though any interference with U.S. military operations would be, by definition, negligible?  Lin’s first non-answer was to emphasize that the government did not presently intend to hold the petitioners for all time; the court batted this non-sequitur away and referred again to its original inquiry.  The government’s lawyer then changed tack, and suggested that resolution of the court’s hypothetical could turn on whether the executive formally declares an end to hostilities – something that, in Judge Bates’ view, we’re not likely ever to see as far as al-Qaeda is concerned.  Eventually Lin got around to her point: the United States simply is not de facto sovereign in Bagram, as it very much is in Guantanamo.  In fact, U.S. control is on the wane at the Afghanistan base, the lawyer said.  As evidence, she pointed to the Enduring Strategic Partnership Agreement recently concluded between the United States and Afghanistan.  Among other things, Lin argued, the document says that the United States has no long-term ambitions in Afghanistan, and that it will not use the country as a staging area for other military activities.  This seemed to mollify Judge Bates a bit, though the respondents’ bout of ducking and weaving clearly had frustrated him.  Ditto when Lin responded to Kassem’s claim that, according to public sources, his clients had been cleared by a detainee review board, and that the clearance supported his case for court jurisdiction: Lin claimed that final transfer decisions rested with the Secretary of Defense, who had not yet acted in this case; however, she was squirrely about whether, in fact, initial review proceedings had approved the detainees for transfer.  (Lin ultimately reminded the court that clearance decisions were irrelevant to the question of Boumediene’s reach, and that the government consistently had claimed as much in its briefs; that didn't seem to bring any real clarity to her exchange with Judge Bates.)

Most provocatively, the court asked Lin whether, in the executive branch’s view, court review of Guantanamo detentions had brought, in Justice Jackson’s ominous phrase, “aid and comfort to the enemy;” or caused the sort of military-judicial clash that the Supreme Court had cautioned against in his opinion in Eisentrager. Lin didn't really dispute the court’s firm suggestion that habeas jurisdiction over GTMO did not, in fact, summon Gozer the Gozerian, provoke a havoc-wreaking visit from the Stay-Puft Marshmallow Man, or otherwise wreck the national security – though she appropriately noted that, unlike Bagram, the detention camp at Guantanamo lies quite far away from a conflict zone.  Suffice it to say that, if Judge Bates wished to wash his hands in light of the D.C. Circuit's ruling, or to hand the government a cakewalk at oral argument, he could have – but didn’t.

Nor was it especially easy sledding for Kassem and Connolly.  That was apparent even before the questioning got underway.  At the hearing’s very beginning, Judge Bates outlined his present thinking, and his planned structure for the day’s proceedings.  In doing so, he appeared to reject a key assertion by the petitioners: that re-tooled Detainee Review Board procedures, recently made applicable to U.S. operations at Bagram, are no less robust than prior status review mechanisms there. The court seemed to say almost the opposite, i.e. that the procedures had measurably improved.  He thus implied that Boumediene’s “adequacy of process” factor might resolve against the petitioners right off the bat – and therefore also require them to pull off even bigger wins under other Boumediene criteria.

As for whether they could, Judge Bates ticked through Boumediene’s other factors with Kassem, each time putting his finger on a possible problem or wrinkle.  The Supreme Court’s ruling spoke of “practical obstacles” to resolving a person’s entitlement to the writ, and, in arguing for the absence of such obstacles here, Kassem had highlighted a spate of U.S.-sponsored, Afghan-led trials of Afghan detainees at Bagram.  Yet Kassem eventually seemed to concede that he didn't have any evidence of the United States’ role, if any, in these trials.  (This lead counsel to pivot towards a request for jurisdictional discovery as to this and other Boumediene factors, which the parties later discussed with Judge Bates.)   Then there was the lurking specter of evasion: a deliberate effort by the United States to stash these and other detainees in places beyond the reach of federal courts.  The petitioners here relied heavily on a memorandum penned by John Yoo – years prior, during the latter’s notorious tenure at OLC, and regarding whether federal courts would review detentions at Guantanamo.  Yoo’s memo of course confirms what we all know, that the Bush Administration once tried mightily to keep courts out of the detention business.  But, as Judge Bates' questioning made clear, the memo did not obviously speak to the executive’s more recent views on Bagram, or even Bagram’s status in light of Guantanamo’s. (The Court of Appeals, incidentally, had found the prospect of deliberate evasion in the petitioners’ case to be “speculative.”)

Connolly got similar stuff from the court.  Judge Bates accepted the deeply felt sincerity of the lawyer’s arguments regarding Hamidullah’s minority at the time of capture, and the many legal authorities suggesting a need to treat juveniles differently than adults.  But the court nevertheless said it thought those claims to be policy contentions best directed to the political branches, not legal claims meant for court review.

So did today’s argument suggest a knock-down winner on the government’s long-pending motion to dismiss?  No, not at all, and there was plenty of skepticism to go around.  But on the other hand, the hearing didn’t begin with the judge announcing that the government probably would lose at least one aspect of the current, multi-part legal test for habeas jurisdiction, either.