Boumediene applied badly: the extraterritorial constitution after Al Maqaleh v. Gates.

• Author: Ghosh, Saurav
• Position: COMMENT

INTRODUCTION I. EXTRATERRITORIALITY AND THE GREAT WRIT A. The Road to Boumediene B. Boumediene: The Constitutional Habeas Question II. BOUMEDIENE APPLIED BADLY: AL MAQALEH V. GATES A. Al Maqaleh in the District Court 1. Detention site 2. Adequacy of process 3. Practical obstacles 4. Balancing the factors B. Al Maqaleh in the D.C. Circuit 1. Detention site 2. Practical obstacles C. Comparing the District Court and D. C. Circuit Approaches 1. Notable areas of overlap 2. Differences in emphasis: The detention site factor 3. Separation of powers: The practical obstacles factor III. THE ARCHAIC APPROACH TO SUBSTANTIVE RIGHTS A. Early Cases B. Verdugo-Urquidez C. Substantive Rights After Verdugo-Urquidez IV. THE CASE FOR FUNCTIONALISM A. Verdugo-Urquidez Must Go B. The Changed lnternational System C. Where Is the Limit? CONCLUSION INTRODUCTION

The September 11 terrorist attacks prompted a global military conflict that has produced numerous troubling dilemmas for the legal community. Since 2001, U.S. forces around the world have targeted and killed suspected terrorists as part of the "Global War on Terror" (GWOT), pursuant to the Authorization for Use of Military Force (AUMF). (1) They have also captured and detained hundreds of others. Unsurprisingly, many detainees have attempted to obtain relief in the federal courts. As a result, the courts have been faced with the serious question of whether these detainees, who are predominantly noncitizens captured and held in facilities outside the United States, can challenge their detention by petitioning for writs of habeas corpus.

Fadi al Maqaleh, Amin al Bakri, Redha al-Najar, and Haji Wazir are four such detainees being held at Bagram Air Base in Afghanistan. Like many others, they were captured and deemed enemy combatants, a classification that they sought to challenge by petitioning the federal courts for habeas relief. Their efforts to obtain relief were brought to a standstill when the U.S. Court of Appeals for the D.C. Circuit ruled, in Al Maqaleh v. Gates, that the federal district courts lack jurisdiction to adjudicate the habeas claims of detainees held at Bagram. (2) This momentous decision halted the movement toward providing GWOT detainees with the means to challenge their detention. It also produced a troubling precedent for future executive action, suggesting that U.S. agents could kidnap foreign nationals and detain them indefinitely without having to justify their actions before a neutral body. (3)

While scholars have developed theoretical frameworks for extraterritoriality doctrine, (4) there is currently a dearth of legal scholarship applying the D.C. Circuit decision in Al Maqaleh to existing theory. There is also insufficient scholarship situating the case within extraterritoriality jurisprudence generally. This Comment therefore seeks to examine the case (and preceding habeas cases) through the lens of current theory, while also going beyond habeas and examining the case in the context of substantive rights. Finally, this Comment presents a novel defense of functionalism in light of the changed international system and its impact on counterterrorism.

This Comment operates at two levels, examining Al Maqaleh specifically and U.S. extraterritoriality doctrine generally. While I primarily contend that Al Maqaleh was incorrectly decided in light of current doctrine, I also argue that the doctrine must move towards a generally applicable theory to avoid arbitrary and inconsistent judicial decisions and prevent executive abuses of power. Although the Supreme Court has been forced to address the reach of the Suspension Clause, the Court has treated the issue of extraterritoriality in an ad hoc, unclear way; it has yet to formulate a coherent jurisprudential theory. This needs to change.

Part I examines the line of Supreme Court decisions addressing the extraterritorial application of the Suspension Clause and evaluates the Supreme Court's current doctrine as articulated in Boumediene v. Bush. (5)

Part II analyzes how that doctrine has been applied by comparing the district court's decision in Al Maqaleh with the D.C. Circuit's decision: while the district court followed the separation of powers principle animating Boumediene, the D.C. Circuit failed to do likewise. After Boumediene, the D.C. Circuit's rationale for not extending habeas is no longer appropriate.

Part III discusses the extraterritorial application of other parts of the Constitution, particularly substantive rights. This distinct line of cases culminates with United States v. Verdugo-Urquidez, which formalistically limited the reach of substantive rights based on citizenship and territory. (6) This Part ends by discussing the troubling implications of Verdugo-Urquidez, which the lower federal courts continue to cite in denying foreign nationals access even to basic due process protection.

Part IV contends that a functional approach that allows the extension of both substantive and procedural protections must be adopted. I argue that the legal formalism in Verdugo-Urquidez is inconsistent with Boumediene, and that the Supreme Court should therefore reject Verdugo-Urquidez and bring its substantive rights analysis in line with the functional paradigm in Boumediene. Although the executive branch has responded to the rising threat of international terrorist networks and other non-state groups by exercising greater power abroad, it has been too slow to observe the constitutionally mandated restraints on that power. This failure denies detainees the modicum of legal review that is essential to legitimizing U.S. detention policy. This Part also discusses the inherent limits to the Constitution's reach, reassuring skeptics that a "universal Constitution" does not result from a functional approach to extraterritoriality.

1. EXTRATERRITORIALITY AND THE GREAT WRIT

   The Supreme Court has addressed the extraterritorial application of habeas review in prior cases, both before and after the onset of the GWOT. This line of decisions culminated with Boumediene v. Bush, in which the Court extended the habeas writ to foreign detainees held overseas and formulated a pragmatic multifactor test for use in future detainee habeas cases. (7)

   1. The Road to Boumediene

      When the United States began detaining foreign nationals at Guantanamo Bay, Cuba, Congress and the Supreme Court jousted over the availability of habeas review for those detainees. Legal precedent suggested that habeas review would not be permitted at Guantanamo. The Court had first addressed the extraterritorial reach of habeas in Johnson v. Eisentrager, where it held that the writ did not extend to aliens detained outside U.S. sovereign territory (specifically, the Landsberg Prison in the Allied Powers' postwar occupation zone). (8)

      Without overturning Eisentrager, the Supreme Court ruled in Rasul v. Bush that the habeas statute did apply to the GWOT detainees being held at Guantanamo; (9) Eisentrager remained good law because the strict territorial limit applied to the federal habeas statute (10) had since been overruled. (11) Congress responded to Rasul with the Detainee Treatment Act of 2005 (DTA), which amended the federal habeas statute, stripping the lower federal courts of the power to consider an application for habeas relief filed by or on behalf of any alien detained by the Defense Department at Guantanamo Bay. (12) The DTA was challenged in turn; the Court ruled that the DTA did not strip the federal courts of jurisdiction to hear those habeas petitions that were pending at the time the law was enacted. (13)

      Congress again responded by enacting the Military Commissions Act of 2006 (MCA), further amending the habeas statute to apply the jurisdiction-stripping provisions to the petitions of all aliens detained since September 11, 2001. (14) This foreclosed all detainee petitions under the habeas statute. But the MCA also forced the Court to address the underlying constitutional question: did the MCA violate the Suspension Clause by stripping the federal courts' habeas jurisdiction? (15)

   2. Boumediene: The Constitutional Habeas Question

      The Boumediene petitioners were all foreign nationals captured abroad, deemed enemy combatants, and held at Guantanamo. "Guantanamo Bay is not formally part of the United States. And under the terms of the lease between the United States and Cuba, Cuba retains 'ultimate sovereignty' over the territory while the United States exercises 'complete jurisdiction and control.'" (16) While the Court conceded that the United States lacks de jure sovereignty, it concluded that "the United States ... maintains de facto sovereignty over th[e] territory." (17) The Court explicitly rejected the government's argument that "de jure sovereignty is the touchstone of habeas corpus jurisdiction." (18)

      The Court noted that although the Eisentrager petitioners were ultimately denied access to the writ, Eisentrager had carefully considered the practical implications involved in applying the writ extraterritorially, going beyond a simple determination about the United States's legal status at Landsberg into a more nuanced inquiry about the "objective degree of control" the United States possessed there. (19) Boumediene identified this as a "common thread" uniting Eisentrager and earlier extraterritoriality cases (including the Insular Cases (20) and Reid v. Covert (21)): "the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism." (22) Boumediene also emphasized that the government's contention--that the Constitution does not apply to territory where the United States lacks formal sovereignty--raised "troubling separation-of-powers concerns," which the writ has historically been used to monitor. (23)

      Based on these considerations, Boumediene formulated a habeas extraterritoriality test:

      [A]t least three factors are relevant in determining the reach of the Suspension...