The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] Friday in Al Maqaleh v. Gates that detainees held at Bagram Air Force Base [official website; JURIST news archive] in Afghanistan cannot bring habeas corpus challenges in US courts. The circuit court reversed the district court's ruling, which allowed habeas corpus challenges [JURIST report] by three Bagram detainees pursuant to the Supreme Court's test in Boumediene v. Bush [opinion, PDF; JURIST report]. Chief Judge Sentelle, delivering the opinion of the three-judge panel, stated that the district court underestimated the significance of Bagram being located in an area of armed conflict, which differentiates the defendants' jurisdictional status from those detained at Guantanamo Bay [JURIST news archive]. The court held that the current case was more comparable to Johnson v. Eisentrager [opinion text], where the Supreme Court held that US courts had no jurisdiction over war criminals held in a US-administered German prison. Irrespective of where the petitioner was captured, jurisdiction is decided by the level of control the US maintains over the detention facility:
While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram. Though the site of detention analysis weighs in favor of the United States and against the petitioners, it is not determinative.The circuit court acknowledged that prohibiting jurisdiction on these grounds may lead to military officials manipulating the system by transferring detainees to Bagram who would otherwise be placed in alternative facilities, but stated that there was no evidence of purposeful manipulation in the cases of the three defendants. This statement would seemingly allow additional suits to be filed if evidence of jurisdictional tampering is apparent.
Last June, Judge John Bates of the US District Court for the District of Columbia [official website] granted a government motion [JURIST reports] to certify and suspend his earlier ruling, which allowed the challenges to proceed in the Maqaleh case. The certification allowed the US Department of Justice (DOJ) to seek interlocutory appeal from the DC Circuit. The DC district court has been the venue for many habeas challenges, especially for Guantanamo detainees suspected of involvement with terrorism. In April, Judge Thomas Hogan dismissed as moot [JURIST report] 105 habeas corpus petitions of non-citizen former Guantanamo Bay detainees no longer in US custody. Hogan wrote that in deciding the case, the court was answering one of the questions left open by Boumediene: "what happens to a Guantanamo detainee's habeas claim once he is transferred or released." In March, a judge ordered the release [JURIST report] of a Guantanamo detainee who had been accused of planning the 9/11 [JURIST news archive] terrorist attacks. Mohamedou Ould Slahi [NYT materials], a Mauritanian who has been in US custody for over seven years, brought a habeas corpus petition, claiming that he had been tortured in prison and had made confessions under duress.