{"id":1195,"date":"2010-05-29T15:37:24","date_gmt":"2010-05-29T19:37:24","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=1195"},"modified":"2010-05-29T15:37:24","modified_gmt":"2010-05-29T19:37:24","slug":"an-evolution-of-judicial-pragmatism-analyzing-the-d-c-circuits-ruling-in-the-bagram-detainees-case","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2010\/05\/an-evolution-of-judicial-pragmatism-analyzing-the-d-c-circuits-ruling-in-the-bagram-detainees-case\/","title":{"rendered":"An Evolution of Judicial Pragmatism: Analyzing the D.C. Circuit’s Ruling in the Bagram Detainees Case"},"content":{"rendered":"

By Daniel Jacobson –
\n<\/strong><\/p>\n

On May 21, 2010, in Al Maqaleh v. Gates<\/a><\/em>, a three-judge panel of the D.C. Circuit unanimously reversed a previous district court ruling<\/a> and held that there was no jurisdiction to hear the petitions for habeas corpus relief of three detainees being held at Bagram Air Base in Afghanistan.\u00a0 The three detainees in question are all non-U.S. citizens who claim to have been apprehended outside of Afghanistan.\u00a0 The court\u2019s twenty-six-page opinion was surprisingly short given the import of the case. \u00a0Moreover, a large portion of the opinion was spent simply recounting the relevant line of Supreme Court precedents.\u00a0 When the court finally did engage in substantive analysis, it applied the three-factor test laid out by the Supreme Court in Boumediene v. Bush <\/em>for analyzing the reach of the Suspension Clause (i.e., for analyzing whether given detainees have a constitutional right to petition for habeas corpus relief).\u00a0 Those three factors are: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner\u2019s entitlement to the writ.<\/p>\n

Despite the brevity of the opinion, there are several noteworthy aspects of the court\u2019s application of the \u201cBoumediene<\/em> factors.\u201d\u00a0 For one, the court shifted the focus of analysis from the second factor, \u201cthe nature of the sites where . . . detention took place,\u201d to the third factor, revolving around the \u201cpractical obstacles\u201d to hearing the detainees\u2019 petitions.\u00a0 In Boumediene<\/em>, Justice Kennedy spent a significant portion of his majority opinion establishing why the United States should be considered to have \u201cde facto<\/em> sovereignty\u201d over its military base at Guantanamo Bay.\u00a0 Kennedy thus arguably left the impression that this question, falling within the second prong of the three-part test, was the central issue of the inquiry.\u00a0 Yet in Al Maqaleh<\/em>, the D.C. Circuit took great pains to emphasize that the question of de facto<\/em> sovereignty was not determinative.\u00a0 The Al Maqaleh<\/em> court rejected as an \u201cextreme understanding of the law\u201d the government\u2019s position that the right to habeas corpus cannot extend to an area over which the United States does not have at least de facto <\/em>sovereignty.\u00a0 The court elaborated, \u201chad the Boumediene <\/em>Court intended to limit its understanding of the reach of the Suspension Clause to territories over which the United States exercised de facto <\/em>sovereignty, it would have had no need to outline the factors to be considered either generally or in the detail which it in fact adopted.\u201d<\/p>\n

In focusing instead on the \u201cpractical obstacles\u201d prong, the court emphasized that the site of detention, Bagram, sits in an active theater of war.\u00a0 In this regard, the court relied heavily on the Supreme Court\u2019s 1950 decision in Johnson v. Eisentrager<\/em>.\u00a0 In Eisentrager<\/em>, the Supreme Court rejected the habeas petitions of twenty-one German nationals held by the United States at Landsberg Prison in Germany.\u00a0 The Al Maqaleh<\/em> court referenced a passage from Eisentrager<\/em> in which the Eisentrager<\/em> Court argued that hearing the habeas petitions could \u201champer the war effort,\u201d \u201cbring aid and comfort to the enemy,\u201d and \u201cdiminish the prestige of our commanders.\u201d \u00a0The Al Maqaleh<\/em> court reasoned that such concerns were even greater in the present case, as active war operations are still very much ongoing in Afghanistan while they had already ceased in Europe at the time of Eisentrager<\/em>.<\/p>\n

Given this shift in emphasis, the degree to which the Al<\/em> Maqaleh<\/em> opinion remains true to Justice Kennedy\u2019s Boumediene<\/em> opinion can be debated.\u00a0 On the one hand, given that the de facto<\/em> sovereignty inquiry was so central to Justice Kennedy\u2019s analysis in Boumediene<\/em>, an opinion in Al Maqaleh<\/em> that focused far more on whether the United States has de facto<\/em> sovereignty over Bagram would have been quite reasonable (and would not have been an \u201cextreme understanding\u201d of Boumediene<\/em> by any means).\u00a0 Yet on the other hand, if one thinks of the core principle underlying Boumediene<\/em> as that of pragmatism, then Al Maqaleh<\/em> was very much consistent with this rationale.\u00a0 Specifically, the Al Maqaleh<\/em> court may have justifiably determined that now that the setting of analysis has moved away from Guantanamo (Boumediene<\/em> was after all a culmination of the Guantanamo line of cases), a different aspect of the analysis has become most relevant to reaching an optimal conclusion.\u00a0 In fact, one could argue that the Boumediene<\/em> Court anticipated that such a need for a new emphasis of analysis would arise post-Boumediene<\/em>, and that is exactly why it made sure to add the third prong concerning \u201cpractical obstacles\u201d to the test it explicated.<\/p>\n

In addition to its application of the Boumediene<\/em> three-part test, another interesting aspect of the Al Maqaleh<\/em> opinion is the court\u2019s discussion of the fear that the government may be able to manipulate the court\u2019s analysis.\u00a0 In a long paragraph near the end of its opinion, the court addressed the argument that ruling in favor of the government would allow it \u201cto switch the Constitution on or off at will\u201d by simply transferring detainees to Bagram rather than a setting such as Guantanamo (or elsewhere) where habeas petitions would have to be heard.\u00a0 The court noted that these three detainees were brought to Bagram before Boumediene<\/em> was handed down, and therefore it was not credible to claim that the detainees were placed in Bagram specifically to deny them of habeas rights.\u00a0 However, the court left open the possibility that this \u201cmanipulation\u201d consideration could be a relevant factor in a future case where concern over potential manipulation would be more legitimate.\u00a0 Unfortunately, the court\u2019s discussion in this regard just raises the question as to what would qualify as manipulation.\u00a0 Suppose the exact same facts arose as in Al Maqaleh<\/em> but post-Boumediene<\/em>.\u00a0 That is, suppose that post-Boumediene<\/em>, the government picks up a suspect in Pakistan and brings him to Bagram, or that, as claimed by one of the Al Maqaleh<\/em> detainees, the government picks up a suspect in a more distant setting such as Thailand.\u00a0 It would seem difficult, and highly speculative, to develop the counterfactual as to what the government would have done if there were no right to habeas at Guantanamo (or equivalently, if there were a full right to habeas at Bagram).\u00a0 In other words, how would a district judge determine whether the government sent the detainees to Bagram because the government was trying to manipulate their rights, or whether the detainees were sent to Bagram simply because that is the logical place to send those particular detainees?<\/p>\n

Despite these remaining questions, the Al Maqaleh<\/em> court\u2019s discussion of considerations of potential manipulation, taken in conjunction with the three-part test developed in Boumediene<\/em> (and further developed in Al Maqaleh<\/em>), does reinforce the notion that case-by-case pragmatism ought to be the preferred judicial approach when confronted with difficult questions of national security. \u00a0Given the multitude of novel legal issues related to terrorism destined to arise in the near future, it is not difficult to see why a flexible approach to this area of the law would be beneficial.\u00a0 Thus, more than any specific pieces of legal doctrine that Boumediene<\/em> and Al Maqaleh<\/em> develop, the longest lasting impact of these cases may stem from the jurisprudential approach on which they stand.<\/p>\n

Image courtesy of the Telegraph<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Daniel Jacobson – On May 21, 2010, in Al Maqaleh v. Gates, a three-judge panel of the D.C. Circuit unanimously reversed a previous district court ruling and held that there was no jurisdiction to hear the petitions for habeas corpus relief of three detainees being held at Bagram Air Base in Afghanistan.\u00a0 The three detainees in question are all non-U.S. citizens who claim to have been apprehended outside of Afghanistan.\u00a0 The court\u2019s twenty-six-page opinion was surprisingly short given the import of the case. \u00a0Moreover, a large portion of the opinion was spent simply recounting the relevant line of Supreme 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