Balkinization  

Wednesday, February 16, 2011

New Life for the Bagram Habeas Litigation?

Jonathan Hafetz

Yesterday, U.S. District Judge John D. Bates granted a motion filed on behalf of the three non-Afghan detainees held at the Bagram air base in Afghanistan to present new evidence in support of their habeas corpus petitions. Bates' opinion explaining his order in al-Maqaleh v. Gates is available here. Bates had previously ruled in al-Maqaleh that some Bagram detainees—specifically, non-Afghans seized outside Afghanistan and brought to Bagram by the U.S.—could obtain federal habeas review of their detention. Bates relied on the test set forth in Boumediene v. Bush for determining the extraterritorial application of the Constitution's habeas corpus Suspension Clause (In Boumediene, the Supreme Court upheld the constitutional right of Guantanamo detainees to habeas corpus). The test considers, among other factors, the citizenship and prior process the detainee had received; the nature of the site of the prisoner's apprehension and detention; and the practical obstacles to habeas review. Last year, the D.C. Circuit reversed Judge Bates' ruling in al-Maqaleh, holding that Bagram detainees had no constitutional right to habeas corpus under Boumediene. The Circuit did, however, leave open the possibility that the petitioners could present new evidence in support of their jurisdictional arguments.

Habeas review for Bagram detainees still faces steep hurdles. (For the schedule on further proceedings in al-Maqaleh, see Lyle Denniston’s post here). Bates’ order nonetheless suggests that new facts—such as evidence that the U.S. plans to hold some Bagram detainees indefinitely even after it relinquishes control of the prison to Afghanistan—could potentially alter the jurisdictional calculus. Such evidence, for example, might show that the practical obstacles to review were not as great as previously believed or that the U.S. is, in fact, using Bagram to circumvent habeas review by keeping prisoners there instead of bringing them to Guantanamo (an assertion the D.C. Circuit said lacked evidentiary support). Thus, despite his doubts about the merits of those arguments, Bates said that the detainees should be permitted to amend their petitions in light of Federal Rule of Civil Procedure 15’s liberal standard. At the very least, Bates’ ruling suggests that he will give the petitions the careful scrutiny they deserve.

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