Great Writ Does Not Apply at Bagram

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A federal appeals court ruled this morning that detainees at the Bagram Theater Internment Facility are not entitled to challenge their status before a federal judge, handing the Justice Department a significant legal victory.

In a unanimous opinion, the judges carefully reasoned their way through a history of habeas and detention cases, and concluded that because the detainees in question were not citizens or lawful combatants, the Bagram facility is not a de facto or de jure sovereign jurisdiction of the U.S. and because it would quite difficult to extent The Great Writ in practice, detainees there are not entitled to it. The idea is "that questions of extraterritoriality turn on objective factors and practical concerns, not formalism." 

Remember, the key point of the famed Boumediene case was that Guantanamo Bay was a de facto part of the U.S. and thus under the jurisdiction of the U.S. legal system. 

However, the court laid down a marker for future habeas questions that differs from the way that the Justice Department had wanted.

"The United States would like us to hold that the Boumediene analysis has no application beyond territories that are, like Guantanamo, outside the de jure sovereignty of the
United States but are subject to its de facto sovereignty. As the government puts it in its reply brief, "[t]he real question before this Court, therefore, is whether Bagram may be considered effectively part of the United States in light of the nature and history of the U.S. presence there." Reply Br. of the United States at 7. We disagree."

"Such an interpretation," the courts ruled, "would seem to create the potential for the extraterritorial extension of the Suspension Clause to noncitizens held in any United States military facility in the world, and perhaps to an undeterminable number of other United States-leased facilities as well."

That challenges a key aspect of detention policy -- that the only real criteria for even inquiring about habeas rights is whether or not the detention took place on sovereign U.S soil. To the appeals court, questions of citizenship and practicality are just as important. The opinion was written by Chief Judge David Sentelle, a conservative, and was joined by two liberal judges.

The winning litigator is deputy solicitor general Neal Katyal, who also argued the famed Boumediene  case against the government in 2008.

The Supreme Court may be the final arbiter -- or it might refuse to hear the case.
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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