The Grim Future of Bagram Litigation

On May 21^st, the D.C. Court of Appeals ruled that Bagram
detainees do not have the right to habeas corpus; that is, the right
to challenge their detention in U.S. Federal Courts; that is, the same
right that was granted to Guantanamo detainees in two precedent setting
Supreme Court rulings. The Appeals Courts' decision was grounded in
reasoning that was largely based upon the "nature of the sites where
apprehension and detention took place."

The court ruled that because Bagram was located within an active theater

of war, granting habeas could have the damaging effect of interfering
with ongoing military efforts in the region. The court further reasoned
that the location of Bagram, within the sovereign territory of
Afghanistan,
presented "practical difficulties" insofar as extending constitutional
protections to detainees might risk disrupting relations between the
United States and Afghan government. In terms of U.S. sovereignty over
Bagram Airfield Base, the Court ruled by elucidating the differences
that they believe distinguish Guantanamo Bay from Bagram. According
to the ruling, although the United States has entered into leasing
agreements
with host countries in both cases, the crucial difference lies in the
fact that while the United States has maintained complete control of
Guantanamo Bay for over a century, there is no indication that they
intend to occupy the base at Bagram "with permanence."

Focusing on these aspects of the ruling alone however, does not
adequately
belie the common threads that the Court recognized as existing between
Bagram and Guantanamo Bay -- common threads that, despite recognition,
did not compel the Court to rule in favor of habeas. For example, the
Court clearly acknowledged the fact that the status of Bagram detainees
is identical to Guantanamo detainees insofar as both are being held
as enemy aliens and can claim protection of the right to habeas corpus
under the Suspension Clause. More strongly, the Court asserted that
the necessity for habeas review in Bagram is even greater than
Guantanamo Bay since detainees at the base are subjected to Unlawful
Enemy Combatant Review Boards (UECRB) that afford them with less
protections
and rights in the determination of their status than the Combatant
Status
Review Boards (CSRB) currently in place at Guantanamo.

The fact that these opinions were not ultimately determinative in the
final ruling can be attributed to the weight that the Court placed upon
its jurisdictional opinions. And it is in taking note of this legal
imbalance, that one senses a certain necessity to shift the focus back
onto the substantive nature of the petitioners' cases in Maqaleh
v. Gates. The case itself concerns three petitioners, Fadi
Al-Maqaleh,
Amin Al-Bakri, and Redha Al-Najar, all of whom are non-Afghan citizens
who were captured outside of Afghanistan before being sent to Bagram
Airfield Base. What this means is that if the administration had decided

to send these men to Guantanamo Bay instead of Bagram, they would
undoubtedly
have had the constitutional right to invoke the writ of habeas corpus.
The status of the petitioners in Maqaleh -- foreigners captured
outside of Afghan territory -- is imperative to note because it is
precisely
this status that created the possibility of litigation on their behalf.

We know this because when the case was at the District Court level,
it had included a fourth petitioner, Haji Wazir, an Afghan citizen
captured
outside of Afghanistan. In April of 2009, when a ruling was issued in
the cases of these four men, Judge John D. Bates dropped Haji Wazir's
petition based on the reasoning that his citizenship might require the
United States to be answerable to the Afghan government. While Wazir's
was case was dismissed, Judge Bates ruled that because the issues
surrounding
the citizenship and conditions of capture of the three remaining
petitioners
were virtually identical to those of detainees at Guantanamo Bay, the
cases contained considerable grounds for a decision in favor of habeas.
The point here is that a very different ruling could have been issued
if the Appeal Courts had followed the reasoning of the District Court
in recognizing that the substantive nature of the petitioners' cases
called, indeed necessitated, a more nuanced approach to the question
of jurisdiction.

What does all of this mean for the future of Bagram litigation?
At this stage of the litigation, the decision effectively eliminates
the possibility of habeas review for each and every one of estimated
700-800 hundred detainees currently imprisoned at Bagram. Additionally,
the Court's ruling makes plain that even if citizenship and due process
concerns at Bagram are recognized as identical to those that lay at
the heart of the Guantanamo habeas litigation, the applicability of
the precedent from Guantanamo will be limited to Guantanamo.

While the current situation is disheartening as it is, the future
appears
to be even less consolation for those currently detained at Bagram.
Even if this case is granted certiorari and appears in front of the
Supreme Court, it remains unlikely that an outcome favoring habeas will
result. Consider it a combination of bad timing and bad luck, but
without
the presence of Justice Stevens, whose opinion swung the pendulum in
favor of habeas for Guanatamo detainees in the Supreme Court's 5-4
decision in Boumediene, the remaining presiding judges are likely to
reach a 4-4 decision, which would simply reaffirm the Appeals Courts'
decision.

The probable replacement of Justice Stevens with Supreme Court nominee
Elena Kagan would also shift the historical balance in cases concerning
detainees. Because Kagan has been representing the interests of the
administration as Solicitor General in the Bagram litigation, she would
not only recuse herself from future proceedings in this case, but will
probably also end up recusing on all major detainee issues that come
before the court, and this is likely to result in the Supreme Court
denying certiorari in future cases.

Hope is further extinguished when one considers the administration's
announcement that it plans to hand Bagram over to Afghan authorities
by January of 2011. While the administration will argue that the
handover
is simply part of the United States' longstanding 'plan' to return
the control of all Afghan facilities to the Afghan government
(longstanding
indeed, after having invaded and occupied that 'sovereign territory'
for over 9 years), one of the 'convenient' outcomes of the handover
will most likely be that any of the little remaining ambiguity
concerning
U.S. jurisdiction over Bagram will be eliminated entirely.

In the face of these impossibilities, a series of questions must be
raised. If the administration does what it says it will -- hand Bagram
over to the Afghan government -- what then will happen to the detainees
currently imprisoned there? What will the status of pending habeas
litigation
be? On the issue of foreign detainees, whom would the administration
be handing them over to? Would they remain in Afghanistan, be sent to
another U.S. operated facility, or returned to their home countries?
And, would any of these outcomes leave open the possibility habeas
litigation?

Given that the handover would be presented as a matter of policy rather
than law, the administration coud easily make the claim that in changing

the status of Bagram or the location where a detainee is being held,
they simply changed the facts of detainees' cases rather changing
the law. And, the fact that this change just 'happens' to eliminate
the possibility of habeas is not likely to trouble anyone in the Oval
Office. Then again, given the Appeals Courts' decision, perhaps these
policy shifts will not even be necessary. After all, isn't one of
the most damaging implications of the Bagram ruling located in its
assertion
that the rights of detainees can be determined on the basis of where
they end up, rather than the conditions of their capture?