{"id":575762,"date":"2010-05-22T08:19:30","date_gmt":"2010-05-22T12:19:30","guid":{"rendered":"http:\/\/opiniojuris.org\/2010\/05\/22\/a-word-on-maqaleh\/"},"modified":"2010-05-22T08:19:30","modified_gmt":"2010-05-22T12:19:30","slug":"a-word-on-maqaleh","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/575762","title":{"rendered":"A Word on Maqaleh"},"content":{"rendered":"

by Deborah Pearlstein <\/em><\/strong><\/p>\n

Cross-posted at Balkinization<\/em><\/a><\/p>\n

Following my co-blogger Ken Anderson\u2019s lead<\/a>, I wanted to add a few additional notes on the D.C. Circuit\u2019s holding <\/a>today that a group of detainees held at the U.S. military base at Bagram, Afghanistan, do not have a constitutional right to seek a writ of habeas corpus in U.S. federal court. While acknowledging that at least two of the detainee-petitioners had been picked up far outside the Afghan borders (one, most notably, in Thailand) and only came to be in the Afghan theater because the U.S. government brought them there, the court concluded that the \u201cpractical obstacles inherent in resolving the prisoner\u2019s entitlement to the writ\u201d while petitioners were detained in an active theater of war weighed against recognizing an extraterritorial constitutional right to habeas.<\/p>\n

Many things to say on the decision\u2019s import and meaning, but here I\u2019ll just start with two unrelated points. First, on the import. Whatever one thinks of the opinion on the merits, it may be easy to overstate its practical significance. The Obama Administration\u2019s litigation strategy in all of its highest profile detention cases has been to moot key cases on their facts before they can be finally resolved by the Supreme Court. Such was the case with, for example, the weighty claim by a group of Gitmo detainees that winning their habeas cases entitled them to release in the United States. So too here, all indications are the Administration is scurrying not only to hand over its detention operations in Afghanistan to the Afghans generally (a move key human rights organizations endorse as a matter of international law), but also reportedly to transfer remaining non-Afghan detainees <\/a>to their home countries for continued detention and\/or trial. It\u2019s possible the Administration may not succeed in its mooting strategy this time. But given the months they now have between petitions for rehearing en banc in the D.C. Circuit and (failing that) for cert sure to follow, I wouldn\u2019t necessarily bet against them. If the U.S. cedes control of Bagram before the case reaches the Supreme Court, what will remain on the books is the ruling of an appeals court, in a decision, as Ken also seems to see it, highly and self-consciously limited to its particular facts. <\/p>\n

Second, on the content. It seems fair to say the reasoning in the opinion was slight. And not just because out of the 26 pages of published writing, one doesn\u2019t reach the meet of the analysis until the bottom of page 19 (after which follows about a page\u2019s worth of block quotes, and another nearly full page of conclusion restating the decision in summary). What reasoning there is doesn\u2019t especially engage the particular facts of the case. Consider, for example, how heavily today\u2019s decision rested on the analysis in the Supreme Court\u2019s 1950 decision in Johnson v. Eisentrager<\/em>, in which the Court declined to allow U.S. military detainees held in Germany (following their war crimes convictions in China) to seek habeas in U.S. courts. In particular, the Maqaleh <\/em>court quoted in block the following passage from Eisentrager <\/em>in support of its conclusion that habeas for the 3 Bagram detainees here would be unwise to pursue: <\/p>\n

\n

\u201cSuch trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.\u201d<\/p>\n<\/blockquote>\n

To be clear, in suggesting that habeas for Bagram would \u201cbring aid and comfort to the enemy\u201d and \u201cdiminish the prestige of our commanders\u201d in Afghanistan, the appeals court here did not expressly (or even impliedly) cite to some particular claim in the record before it. Neither was it discernably deferring to some perceived superiority of the Executive\u2019s assessment of the strategic or practical import of allowing the Bagram detainees captured outside Afghanistan to seek a writ of habeas corpus. Rather, the D.C. Circuit seemed to be doing exactly what the Eisentrager <\/em>Court did \u2013 asserting, based on the court\u2019s own impression, that greater legal process would only hamper the strategic cause for which the United States is fighting in (on this occasion) Afghanistan. <\/p>\n

Yet particularly in the counterinsurgency context in which the U.S. is now fighting, it seems an odd \u2013 and overstated \u2013 position for the court to take. Indeed, as the Commander of NATO forces in Afghanistan, U.S. General McChrystal, explained in his pivotal strategy report <\/a>last year, \u201cthe Afghan people see U.S. detention operations as secretive and lacking in due process.\u201d Because detention operations could thus become \u201ca strategic liability,\u201d the United States faces a \u201ccritical\u201d need \u201cto conduct all detention operations in this country in accordance with international and national law.\u201d McChrystal went on to recommend the turnover of detention operations to the Afghans, once they developed the capacity to sustain such operations lawfully and effectively. There is nothing in his report that would support the conclusion the Maqaleh <\/em>court reached about the impact of judicial review on \u201cthe enemy,\u201d and much in it that might support the view that habeas in the limited context presented here \u2013 where detainees have been shipped from a country at peace with the United States into a country where the United States is at war \u2013 might be of some strategic benefit with \u201cwavering neutrals\u201d pending handover to the Afghan government. <\/p>\n

I don\u2019t mean to overstate the point. The government here, after all, opposed extending habeas to Bagram. Nonetheless, especially given the stakes, it seems insufficient for the court to rely centrally on an assertion that seems at least somewhat in tension with positions the government has itself elsewhere taken on this particular issue. In Hamdan<\/em>, the government had argued that it was impracticable to pursue war crimes trials under existing court martial rules on the bare grounds that the demands of counterterrorism were great. Writing for a majority of the Supreme Court, Justice Stevens rejected this claim as, among other things, lacking basis in the record. Hard to demonstrate the D.C. Circuit crossed that threshhold here.<\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Deborah Pearlstein Cross-posted at Balkinization Following my co-blogger Ken Anderson\u2019s lead, I wanted to add a few additional notes on the D.C. Circuit\u2019s holding today that a group of detainees held at the U.S. military base at Bagram, Afghanistan, do not have a constitutional right to seek a writ of habeas corpus in U.S. […]<\/p>\n","protected":false},"author":4905,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-575762","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/575762","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4905"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=575762"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/575762\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=575762"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=575762"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=575762"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}