Thursday, April 2, 2009

Habeas Extends to Some at Bagram

Judge Bates of the D.C. District Court handed down his opinion in the Maqaleh v. Gates case today. This case was filed by detainees held at a military detention facility, similar to the one at Gitmo, at Bagram Air Base in Afghanistan. The question at issue in the case was whether the Boumediene opinion extended habeas corpus rights to some held at Bagram as long as they were not Afghan citizens or prisoners captured in Afghanistan. The opinion concludes that those held at the only distinguising characteristic between those held at Bagram and those held at Gitmo is their geographic location. I will highlight some parts of the opinion I believe are important.

The first thing that jumped out at me was very early on in the opinion when Judge Bates stated that the "objective degree of control" the U.S. has over Bagram was closely analogous to the kind of control the U.S. has over Gitmo. The amount of control the U.S. had over a facility located in another country was an important part of the Boumediene opinion. The opinion goes on to say that Bagram does present habeas obstacles that Gitmo didn't because Bagram is located in a war zone, but that those obstacles were not "insurmountable."

In examining the court's jurisdiction to hear the case, the opinion finds that Boumediene was an "as applied" rejection of section 7 of the Military Commissions Act. This meant that section 7 could still be constitutional when used in relation to habeas petitions from other prisons such as Bagram. In determining whether habeas applies to those at Bagram, Judge Bates broke the Supreme Court's 3 part test Boumediene test into 6 parts: 1) what is the detainee's citizenship; 2) what is his status (i.e. is he an enemy combatant?); 3) was the process that determined his status adequate; 4) where was he apprehended; 5) what kind of facility is he held in; and 6) what are the "practical obstacles" in extending habeas to him. The court decided to apply this test in an individualized manner to each detainee rather than a general application to all detainees at the same time. Three of the factors were the same for all detainees in this case in that they 1) were all enemy combatants 2) captured outside the U.S. and 3) none of them are U.S. citizens. It found that the fact that none of them are U.S. citizens is a mark against extending habeas to them, but that it is only one factor and all factors must be weighed. The court was also rather dismissive of the factor pertaining to the process that labeled the detainees "enemy combatants." It found that the process was broad and indiscriminate, and thus weighed in favor of the more structured habeas process.

An important part of the opinion comes when Judge Bates talks about the site of apprehension. The court noted that all four of the detainees in this case were captured outside of Afghanistan and then "rendered" to Bagram. Rendition, as you may know, has become a somewhat favored tool in the fight against terrorism and involves capturing a suspected terrorist in one country and then moving them to another for purposes of confinement or interrogation. This section is important because it lays out a limit to application of habeas rights. Bates finds that there is "a meaningful distinction between Bagram prisoners captured outside Afghanistan... and Bagram detainees who were captured on the battlefield in Afghanistan." The distinction is that those captured in Afghanistan were captured in a theater of war and therefore are subject to different rules, while those rendered into the country should be treated differently. The court says they should be treated differently because it is important to control the power of the Executive to render people to other countries so that the Constitution will not apply to them.

The court felt that the 3 factors in its test that are most important are: 1) site of detention; 2) process used to determine status; and 3) practical obstacles of entitlement to habeas. Site of detention hinges on degree of control which, as I said earlier, was a big factor in Boumediene. It found that the jurisdiction the U.S. has over Gitmo is significantly greater than that it has over Bagram; however, the court said that the most important aspect to examine was the "objective degree of control." This distinction between jurisdiction and degree of control allows the court to say that while jurisdiction over Bagram may not be complete, the objective degree of control over the facility is. A contrast is drawn between Bagram and Landsburg prison which was an allied prison facility set up after WWII. Landsburg was at the center of a major Supreme Court decsion in the case of Johnson v. Eisentrager, where the Court found, among other things, that the U.S. didn't have control over the prison. I won't go into detail about Eisentrager in this post, but Judge Bates sets up a spectrum to illustrate degree of control in this opinion with Gitmo at one end and Landsburg at the other, and says that Bagram is more on the Gitmo side of the spectrum. Taking away a little from finding objective control is the U.S.'s intent to stay for an extended period of time at Bagram. The court felt that there wasn't a clear showing of an inent to stay for an extended period of time so it weighed that against finding objective control. What this all boils down to is that Maqaleh finds that Bagram is objectively under the control of the U.S., but that the control is less than that at Gitmo and therefore this factor weighs slightly in favor of the detainees in this case, but not as much as it did in Boumediene.

As far as the process factor goes, the court found that Bagram uses Unlawful Enemy Combatant Review Board (UECRB) to determine if a detainee is an enemy combatant. The opinion quickly denounces the UECRBs as less procedurally effecitve than the CSRTs at Gitmo which were found to be procedurally lacking in Boumediene. In the UECRBs detainees are not allowed counsel and may only submit a written statement to the board, no oral argument. The UECRB process also has no type of appellate-like review, which even the CSRTs had. The court makes short order of this factor and finds that it weighs more strongly in favor of Bagram detainees than Gitmo detainees.

The court acknowledges that providing habeas to Bagram could have practical difficulties because it is in an active war zone. However, the opinion turns back to Eisentrager and finds that status review in that case had lots of procedural protections even though the status reviews took place in post-WWII China. It notes that with technological advances the U.S. should be more easily able to overcome difficulties in Afghanistan. The opinion also goes on to say that problems with gathering evidence and witnesses are overstate by the government's argument, and that any effect on the timeliness of carrying out the military's mission is overcome by providing a buffer of "reasonable time" before the habeas process begins.

It is at this point that the opinion draws another important boundary for habeas rights. It says that a practical problem does exist as to detainees that are Afghan citizens. These problems arise out of tension with the Afghan government in having the U.S. exert its laws over Afghan citizens. Another problem would be having habeas review order the release of a potentially dangerous Afghan citizen back into Afghanistan where he could commit further crimes. The court found this problem to be very serious and thus found that habeas does not extend to Afghan citizens held at Bagram. While the earlier limit of habeas only extending to those not apprehended in Afghanistan did not apply to any of the detainees in this case, the limit of habeas not extending to Afghan citizens does apply in this case. One of the detainees, Haji Wazir, is an Afghan citizen and thus this factor weighs against him receiving habeas rights, but might instead need to be transfered to Afghan custody. The last part of the opinion goes into another ground urged by the detainees upon which Wazir may receive habeas rights, but it said that the court would require additional briefing.

The bare bones conclusion of the opinion is this: habeas rights extend to detainees at Bagram as long as they are not Afghan citizens or as long as they were not captured in Afghanistan. The court found that section 7 of the Military Commissions Act is unconstitutional as applied to Bagram just as it is unconstitutional as applied to Gitmo (remember that courts have not found section 7 to be facially unconstitutional and therefore it may be constitutional in some instances). I want to note that the most important factor of the six laid out in Judge Bates's opinion is the one relating to site of detention and "objective degree of control" of that site. I think it is the most important not only because it is the one most analyzed, but because I think that it affects both the adequacy of process factor and the "practical obstacles" factor. It affects the adequacy of process factor a little bit less, but I think it affects that factor because it seems that an environment that is totally under U.S. control is much more conducive to a thorough process than one that is not under control. Control is very important to the "practical obstacles" factor, especially given Bates's analysis in this case, because objective control over the facility will allow the U.S. to have great ability to allow for detainee access to counsel as well as counsel/detainee access to evidence and witnesses.

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