Al Maqaleh and the Diminishing Reach of Habeas Corpus

• Publication year: 2021
• Citation: Vol. 95

95 Nebraska L. Rev. 146. Al Maqaleh and the Diminishing Reach of Habeas Corpus

Al Maqaleh and the Diminishing Reach of Habeas Corpus

Rehan Abeyratne(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 147

II. Al Maqaleh: Background and Procedural History ...... 150
A. Facts of the Case .................................. 150
B. The Four Major Opinions .......................... 152
1. Al Maqaleh I .................................. 152
2. Al Maqaleh II ................................. 157
3. Al Maqaleh III ................................ 159
4. Al Maqaleh IV ................................. 161

III. Revisiting the Site of Apprehension and Site of Detention Factors ..................................... 163
A. Site of Apprehension .............................. 163
B. Site of Detention .................................. 166
1. Is Sovereignty a Necessary Condition for Writ Jurisdiction? ................................... 166
a. De Facto Sovereignty ...................... 166
b. Eistentrager's Holding ..................... 168
2. Conflating Degree and Duration of Control ..... 172
3. A "Permanent" U.S. Presence at Bagram ....... 174

IV. When Practical Obstacles Become Practically Insurmountable ....................................... 177
A. Overstated Obstacles in Al Maqaleh: A Closer Inspection of the Facts ............................ 178
B. Practical Obstacles as Separation of Powers Concerns .......................................... 180

V. Executive Manipulation of Writ Jurisdiction ........... 184
A. Evidence of Manipulation .......................... 186

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B. The Senate Select Committee on Intelligence Report ............................................ 190

VI. Conclusion: The Diminishing Reach of the Writ of Habeas Corpus ....................................... 191

I. INTRODUCTION

On March 23, 2015, the United States Supreme Court granted certiorari and summarily disposed of Al Maqaleh v. Hagel.(fn1) This short, unremarkable order brought an end to almost a decade of litigation on behalf of detainees at Bagram Air Base, Afghanistan. This order has significant and potentially dangerous consequences. It leaves in place a D.C. Circuit precedent that effectively permits the Executive to determine how far and to whom the writ of habeas corpus will reach.

The Al Maqaleh litigation consolidated several habeas corpus petitions filed on behalf of Bagram detainees. It began in 2006 when petitioner Fadi al Maqaleh filed a writ of habeas corpus.(fn2) Al Maqaleh is a Yemeni citizen who alleged that he was captured outside Afghanistan in 2003.(fn3) Other petitioners' cases were later consolidated with this petition. These include the cases of Redha al Najar, a Tunisian citizen, who alleges capture in Pakistan, and Amin al Bakri, a Yemeni citizen, who claims he was arrested while on a business trip to Thailand.(fn4) Both allege that they were captured in 2002,(fn5) and they filed habeas corpus petitions in 2008.(fn6) Significantly, all three detainees claimed they were captured outside Afghanistan-away from any bat-tlefield-and had been extraordinarily rendered to Bagram to face indefinite and prolonged detention.(fn7)

The U.S. Government moved to dismiss these petitions for lack of jurisdiction under the Military Commissions Act of 2006 (MCA).(fn8) In

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the 2008 case Boumediene v. Bush, the U.S. Supreme Court held the MCA unconstitutional for suspending the writ of habeas corpus to detainees at Guantanamo Bay, Cuba.(fn9) Justice Kennedy's majority opinion set forth a three-factor test to determine the reach of the Suspension Clause as applicable to detainees held outside U.S. territory.(fn10) These 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 of where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.(fn11)

The principal question presented in the Al Maqaleh litigation- whether the Suspension Clause reached petitioners at Bagram- turned on the interpretation and application of this three-factor test. In 2009, Judge John D. Bates of the U.S. District Court for the District of Columbia issued the first major opinion in Al Maqaleh.(fn12) It focused on the jurisdictional question as to whether the Suspension Clause applied to detainees at Bagram. Concluding that the Bagram petitioners "are virtually identical" to detainees in Guantanamo under the Boumediene factors, Judge Bates dismissed the government's motion to dismiss for lack of jurisdiction.(fn13) In May 2010, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously reversed.(fn14) Then-Chief Judge David B. Sentelle interpreted the second factor (site of apprehension and detention) and the third (practical obstacles) "overwhelmingly in favor" of the United States to dismiss the petitions.(fn15) The petitioners then returned to the District Court to present amended petitions containing new evidence that they argued would tip the Boumediene analysis in their favor.(fn16) The District Court, bound by the D.C. Circuit's decision, construed the Boumediene factors narrowly and dismissed the amended petitions.(fn17) The D.C. Circuit upheld this decision in (another) unanimous opinion

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authored by Judge Karen LeCraft Henderson.(fn18) Petitioners then filed a writ of certiorari before the U.S. Supreme Court in August 2014.(fn19)When the justices reached the case, however, none of the petitioners was in U.S. custody.(fn20) The Supreme Court therefore dismissed their petitions as moot and vacated the judgment of the D.C. Circuit.(fn21)

This Article examines the legal landscape surrounding the extraterritorial reach of the writ of habeas corpus following the Supreme Court's disposition of Al Maqaleh. It argues that the two D.C. Circuit opinions in this case misconstrued Supreme Court precedent and reached erroneous conclusions. On three issues in particular, the D.C. Circuit's legal conclusions are flawed.

First, the court misinterpreted the second Boumediene factor, which pertains to the site of apprehension and site of detention. Both D.C. Circuit opinions focus exclusively on the site of detention, ignoring the fact that all three of these detainees claim to have been apprehended outside Afghanistan and extraordinarily rendered to Bagram. Moreover, the court misread Eisentrager, a 1950 Supreme Court case considering the writ of habeas corpus in the context of German nationals detained following World War II, and Boumediene to confer primacy on U.S. sovereignty over the detention facility.(fn22) This marginalizes other aspects of the Boumediene three-factor analysis such as the objective degree of control over the facility and the indefinite nature of petitioners' detention.

Second, the D.C. Circuit misconstrued the practical obstacles factor as a separation of powers issue as opposed to a functional concern with extending the writ to Bagram. Judge Henderson's opinion for the D.C. Circuit is especially problematic in this regard.(fn23)

Third, and most worrisome, both D.C. Circuit opinions dismiss (without serious consideration) petitioners' claim that the Executive manipulated the site of detention-by choosing to hold petitioners at Bagram rather than at Guantanamo Bay-to escape the reach of

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habeas corpus.(fn24) A Senate Intelligence Committee's report on the CIA's detention and interrogation program published in December 2014 subsequently confirmed that senior officials in the Bush Administration ordered detainee transfers specifically to avoid habeas jurisdiction.(fn25) For these reasons, this Article argues that it is crucial that Al Maqaleh be abrogated. Al Maqaleh should not bind future courts tackling the difficult questions of how far and to whom the writ of habeas corpus should reach.

The Article proceeds in four parts. Part II provides factual background and a detailed summary of the major opinions in the Al Maqaleh litigation. Part III examines the site of apprehension prong of the Boumediene factors and argues that it should have played a more substantial role in the D.C. Circuit's jurisdictional analysis. It also critically examines the D.C. Circuit's formalistic approach to the site-of-detention factor. Part IV looks at the practical obstacles factor, tracing its development from Eisentrager through Boumediene. Part V looks at executive manipulation of writ jurisdiction and explains the gradual shift from Guantanamo Bay to Bagram Air Base as the principal detention site-a shift motivated, at least in part, by a desire to evade habeas corpus. The Article concludes that Al Maqaleh has unconstitutionally altered Boumediene's test for the extraterritorial application of habeas corpus by empowering the Executive to "switch the Constitution on or off at will."(fn26)

II. AL MAQALEH: BACKGROUND AND PROCEDURAL HISTORY

A. Facts of the Case

The petitioners in the Al Maqaleh litigation all alleged similar facts. Fadi al Maqaleh, a citizen of Yemen, was captured outside Afghanistan in approximately 2003.(fn27) Because Bagram detainees did not have access to counsel, the exact details of his arrest and detention are not known. Al Maqaleh's family only discovered that he was in U.S. custody through the International Committee of the Red Cross (ICRC).(fn28) In a letter to his father, al Maqaleh stated that he was U.S.

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custody but included no information about his capture.(fn29) Al Maqaleh's habeas corpus petition initially alleged only that he was seized outside Afghan territory.(fn30) Subsequent amended petitions alleged that he was initially detained at Abu Ghraib prison in Iraq and transferred to Bagram in 2004 or 2005.(fn31) Al...