When the Supreme Court ruled in June 2008 that detainees held at Guantánamo Bay have a constitutional right to challenge their detentions in federal court, it appeared to mark the end of an executive strategy to hold detainees beyond the law. Guantánamo, picked by US officials as a detention site in part because of its potential for being a law-free zone, was now subject to law.
Some celebrated this decision, Boumediene v. Bush, as a vindication of the rule of law, which it certainly was. But others, including Justice Antonin Scalia in his dissent, derided it as a Guantánamo-only decision and predicted that it would be easily evaded by housing detainees elsewhere.
According to a May 21 decision by a panel of the Court of Appeals for the District of Columbia Circuit, Scalia may have been right. In Al Maqaleh v. Gates, the appeals court ruled that foreigners held at Bagram Air Base in Afghanistan, unlike their counterparts held at Guantánamo, have no right to challenge their detention in federal court. The unanimous decision, written by one of the court's most conservative judges, David Sentelle, but joined by two of its more liberal judges, Harry Edwards and David Tatel, relied heavily on the detainees' being held in Afghanistan, an "active theater of war." But none of the detainees were captured in Afghanistan. The only reason they were held there was that the military took them to Afghanistan after capturing them elsewhere. Thus, the decision offers the military a simple strategy for avoiding legal review: send all detainees to Afghanistan, no matter where they are captured.
The court acknowledged that the Bagram detainees were situated similarly to those held at Guantánamo and had received even worse procedures than the kangaroo-court proceedings at Guantánamo. And it rejected the Obama administration's argument that habeas corpus extends no further than places, like Guantánamo itself, where the United States exercises "de facto sovereignty." But the court then concluded that "practical obstacles" precluded the extension of court review to detainees in a war zone.
The court worried that providing judicial review would "bring aid and comfort to the enemy," "diminish the prestige of our commanders," divert the attention of "field commanders" by requiring them to justify their actions in their own courts and create tension between the courts and the military. But the same concerns apply to review of detentions at Guantánamo, and the Supreme Court insisted that review must be available there. The appeals court offered no explanation for its different treatment of these identical concerns.
A war zone may, of course, require greater security measures, and the court pointedly noted that Bagram has been the subject of enemy attacks, including a suicide bombing in March 2009 and a Taliban rocket attack in June 2009. But the court cited no evidence that providing habeas review would undermine security. Habeas hearings regarding Guantánamo are held in Washington, with a video hookup for the detainees, who remain housed at Guantánamo; the same could be done for Bagram detainees without any increased security risks. While lawyers would have to be afforded limited access, the court cited no evidence that attorney access would pose a problem.
Moreover, the court gave short shrift to the fact that those seeking review were in a war zone only because the military put them there. All three detainees in Al Maqaleh alleged that they were captured outside Afghanistan. They could have been brought to Guantánamo, but the United States chose to take them to a war zone. To allow the government to rely on their presence in a theater of war to preclude all judicial review is to allow the government to manipulate the law and to create law-free detention zones—the very problem the Boumediene decision sought to avoid. It was precisely that concern that led the district court judge in the Bagram case, John Bates—a George W. Bush appointee—to rule that habeas corpus jurisdiction applies.
The court of appeals left open the possibility that if a detainee can show that the administration moved him to Bagram for the purpose of evading court review, a different result might obtain, and it emphasized that the government moved the three detainees to Bagram long before the Supreme Court's 2008 decision in Boumediene. It is surely no coincidence, however, that Guantánamo's population peaked in 2003, the same year the Supreme Court first agreed to decide whether habeas corpus extended there, and has fallen steadily since. From that time forward, the military has sought to reduce the number of prisoners in Guantánamo and has sent very few new detainees there. Still, proving that this was done to evade judicial review in an individual case could be virtually impossible.
As a result, the DC circuit's Bagram decision gives the administration precisely what the Supreme Court in Boumediene sought to deny it—a law-free zone. Justice Scalia may have lost the battle in Boumediene, but unless Al Maqaleh is overturned, he will have won the war.