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The Grim Future of Bagram Litigation

Aisha Ghani

On May 21st, 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?

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Aisha Ghani's research interests focus on questions of subjectivity and subject formation, incommensurability, accusation, historical crisis, continuity and rupture, ideology, psychoanaltic theory and the law. She is currently formulating a dissertation project on the topic of unlawful detention, with a particular focus on the subjectivity of detainees - tracing their transformation as they move from being subjected to the law (through detention) to becoming subjects of the law (in military and civil courts). Prior to her arrival at Stanford, she completed an MA in South Asian Studies at Columbia University and her BSc and BA in Biology and Religion from McMaster University.

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