Judge: The Great Writ May Apply At Bagram

Pretty soon it'll be ObamaLaw too, but a federal judge has ordered  access to U.S. courts for three long-time detainees held at the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan.  Judge John D. Judge Bates writes that the case "closely parallels" the issues that led the Supreme Court, in its seminal Boumediene decision, to grant the right of habeas corpus review to the Gitmo detainees. Bates writes:

Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene -- they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be "enemy combatants," a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the "practical obstacles" inherent in resolving a Bagram detainee's entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war.

The constitution says this about habeas:  The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Boumediene, as you'll recall, invalidated a clause in the Military Commissions Act of 2006 that stripped from the federal courts their ability to hear habeas petitions from Guantanamo detainees.  The government argued in this case that Boumediene's invalidaton was narrowly targeted ("as applied") to the facts of that case, not to detainees elsewhere, like at Bagram. (There was a long and arcane discussion about the status of GItmo as a U.S. territory and whether it was subject, inter alia, to district court jurisdiction.)

The Bagram detainees' lawyers wondered what the fundamental difference was, but Bates notes that all of the major SCOTUS cases -- Rasul, Hamdan, Boumediene -- dealt with confinement at Gitmo only. So -- there is no statutory claim in play here.... the petitioners at Bagram must rely on the Constitution itself to see whether their claims are solid enough to invoke the Suspension Clause.  Back to Boumediene, which prescribes a seven-fold test for each habeas claim.

(1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the
process through which the status determination was made; (4) the nature of the site of
apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner's entitlement to the writ. [And (7), the length of the detention.]

Bates finds that in three of the cases, the prisoners can continue to challenge their detention. In the fourth, Hanji Wazir, an Afghani citizen, the court defers judgment.

This Court is sensitive to the Supreme Court's observation that practical obstacles
could make habeas review "impracticable and anomalous" for detainees held in an active theater of war. Yet respondents' repeated reliance on this dictum cannot shield the Executive's detention of these petitioners at Bagram entirely from review. The only reason these petitioners are in an active theater of war is because respondents brought them there. And it would be far more anomalous to allow respondents to preclude a detainee's habeas rights by choosing to put him in harm's way through detention in a theater of war. Providing habeas review for petitioners al Bakri, al-Najar and al Maqaleh is not so onerous, so fraught with danger, or so likely to cause friction with the Afghan government as to warrant depriving them of the protections of the Great Writ.

A Justice Department spokesman said the government is reviewing the case.