Analysis
Two federal appeals court judges went searching on Thursday for a possible way to salvage some right for terrorism suspects to challenge detention when they are held overseas by the U.S. military, with the judges focusing on how to keep such a right within bounds. The effort drew unstinting resistance from a federal government lawyer, and only a little help (treated by the judges as unsatisfying) from a lawyer for three detainees now being held in Afghanistan. The hour-long D.C. Circuit Court hearing (running 20 minutes beyond the scheduled time) provided a thorough parsing of what the Supreme Court meant when it ruled in 2008, in Boumediene v. Bush, that the constitutional right of a prisoner to challenge detention applies to at least some terrorism suspects in U.S. military custody.
The case of Maqaleh, et al., v. Gates, et al.(Circuit docket 09-5265) marks the first by detainees’ lawyers seeking to extend habeas rights beyond Guantanamo — in this case, to the U.S. prison at BagramAir Base 40 miles north of Kabul, Afghanistan. The prison now houses more than 600 captives, three times the number remaining at Guantanamo. A federal judge ruled last year that individuals who are not Afghan nationals, and who were captured outside of Afghanistan but then taken to Bagram for long-term detention, can ask a U.S. court to review their captivity. That ruling is on hold while the Circuit Court reviews it. There is little doubt the case will ultimately reach the Supreme Court.
From early in Thursday’s hearing, Circuit Judge David S. Tatel and Senior Circuit Judge Harry T. Edwards left little doubt that they were skeptical of the government argument that the Boumediene decision was strictly limited to Guantanamo detainees.  The Supreme Court, Judge Tatel remarked, would have written “a much shorter opinion” if it were only writing for the situation in Guantanamo Bay, Cuba — a U.S.-controlled military base, not in a war zone, less than 100 miles off the U.S. mainland.
In one of the first exchanges with Judges Tateland Edwards, Deputy U.S. Solicitor General Neal K. Katyal said the government opposed extending habeas rights to a detainee held on any military bass, anywhere in the world, even on an “island in the middle of nowhere” (as Edwards had put it). Katyal, though, spent much of his time arguing that the core meaning of the Boumediene decision is that, if the U.S. government is not the real-world sovereign over any detention site, habeas rights do not exist there. In Bagram, he noted, Afghanistan is the sovereign host of the air base outside Kabul.
Tatel pressed him on why, if the decision had been written for Guantanamo alone, the Supreme Court went to considerable lengths to lay down a series of factors to be used in judging where habeas rights might exist for non-citizen detainees. “Your position is that sovereignty is dispositive; that’s not what Boumedienesaid.” Although Katyal continued to insist that sovereignty was the key, he said that, if the Circuit Court did apply the factors laid down by the Justices, the government would still win as to Bagram.
The third member of the Circuit panel, Chief Judge David B. Sentelle, appeared to believe that the Maqaleh case was a simple one — if habeas does not apply to Bagram– period, “you lose,” he told the detainees’ counsel, Tina M. Foster of the International Justice Network. She had tried to argue that the dispute was no more confined to Bagramthan it was to Guantanamo. The core issue, she said, is whether the U.S. government can hold any detainee for years, without any criminal charges, and never have to justify the captivity to a court.
Even Judge Tatel seemed to think Foster’s argument swept too broadly. She had barely begun when he told her: “Your theory, I don’t see any limit to your view…Wouldn’t it extend habeas all over the world?” The Supreme Court had said in 1950, in the decision in Johnson v. Eisentrager, that “never in history had habeas extended to overseas” detainees, and the Court left that ruling intact in Boumediene, the judge remarked. Foster, however, countered that the Court had said that only after the German prisoners held by the U.S. in Germany had been given a trial on war crimes, and convicted.
All three of the judges questioned Foster closely about whether there were any “limiting principles” to her argument in favor of broad habeas rights for those in U.S. military custody. Judge Edwards grew frustrated at her responses, telling the detainees’ counsel that “you’re not answering.” If the Court were to extend habeas, he asked, “What would limit our holding?…Tell us what you would write” if she were crafting the Court’s opinion. Foster said, alternatively, that it could be confined to those who had been given no “due process” to test their captivity, and that it could be limited to those who have been held for, perhaps, six years without charges. Edwards retorted: “Your test is being held for a period of time, with no [due] process. That’s a long reach from what the Supreme Court said.”
One of the more penetrating exchanges over the meaning of the Boumediene decision involved the issue of whether the Supreme Court in that ruling had really intended to curb the Executive Branch from manipulating habeas rights by deciding to keep terrorism suspects detained outside the U.S.  Tatel said that was not one of the factors the Justices had listed when it spelled out the test of habeas’ reach. When Foster countered that the Court had said the place where suspects had been picked up in the first instance was, in fact, one of the Court’s list of factors, and that related to manipulation of where detainees would be held, Tatel said “you rely on that a lot,” and went on to express doubt about whether the Circuit Court was free to make that a factor on whether habeas applies at the Bagram prison. “I don’t see how we can add that factor, a new factor,” the judge commented.
Foster closed her argument by insisting that the detainees were “asking for very limited relief” — a requirement that the government provide “a simple factual basis for lawfully detaining them.”
Katyal, saying he had learned from the buffeting he had undergone not to say more, had no rebuttal.
The judges gave no indication when they would rule. It usually takes D.C. Circuit panels a few months to decide major cases, and it was clear throughout the hearing that this case qualifies as very important.
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