After years of litigation arising from the nation’s detention of prisoners in the global war on terror, the Supreme Court’s decisions confound as much as they clarify — and none more than Boumediene v. Bush, the 2008 decision in which the Court declared that Guantanamo Bay prisoners could challenge their detention in federal court, under legal standards which the federal courts would create after the fact.
While Boumediene specifically covered only detainees at Guantanamo, the obvious question raised by that case was, “would detainees held elsewhere — especially in Afghanistan — also be able to sue the federal government for release?”
The answer was ‘yes,’ at least, according to lawyers for Fadi al Maqaleh and Ahmad al Maqaleh at Bagram Air Force Base in Afghanistan. In October 2008, they filed a brief in federal district court, asserting that Boumediene “makes clear that [Maqaleh] is entitled to invoke this Court’s power to hear his Petition.” And the federal judge hearing their case agreed.
But in a welcome development last week, in the case of Maqaleh v. Gates, the D.C. Circuit unanimously overturned that decision and refused to extend Boumediene to cover Bagram.
Carefully applied, these three factors were established in Boumediene, keeping in mind Eisentrager, the Supreme Court’s seminal WWII-era precedent: (1) the detainee’s citizenship status and the adequacy of the process by which his combatant status was determined; (2) the nature of the sites where apprehension and detention took place; and (3) “the practical obstacles inherent in” entertaining the lawsuit. According to the D.C. Circuit, the second factor weighed “heavily” in favor of the U.S., and the third factor “weighs overwhelmingly in favor” of the U.S. The court stressed what is obvious to nearly anyone who is not a pro bono lawyer for a GWOT detainee — namely, that it would be “impractical or anomalous” for the nation to allow the federal courts to be used by prisoners held (with the Court’s emphasis) in a “detention facility … located in an active theater of war[.]”
The court’s unanimity in Maqaleh is welcome from the three judge panel, which is composed of one judge appointed by a Republican president and two appointed by Democrats. Furthermore, the three judges are among the the federal bench’s most well-respected memebrs. Critics cannot plausibly suggest that this decision is marred by partisanship or a lack of intellectual rigor. And the quality of the court’s opinion casts severe doubt on the likelihood that the full D.C. Circuit will rehear the case, or that the Supreme Court will overturn the decision.
The Maqaleh opinion should be read by anyone with even a passing interest in either national security law or the global war on terror generally. In merely twenty six pages, the court thoroughly summarizes the facts of the case and the last half century of Supreme Court jurisprudence on matters of enemy detention.