Posted by Orin Kerr:
Do Habeas Rights Extend to Bagram Detainees Under *Boumediene*?:
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238731966
Judge Bates says [1]yes, at least for detainees not from Afghanistan
who have been detained at Bagram for several years:
Under Boumediene, Bagram detainees who are not Afghan citizens, who
were not captured in Afghanistan, and who have been held for an
unreasonable amount of time -- here, over six years -- without
adequate process may invoke the protections of the Suspension
Clause, and hence the privilege of habeas corpus, based on an
application of the Boumediene factors. Three petitioners are in
that category. Because there is no adequate substitute for the writ
of habeas corpus for Bagram detainees, those petitioners are
entitled to seek habeas review in this Court. Accordingly,
respondents' motions to dismiss the habeas petitions of petitioners
al Maqaleh, al Bakri, and al-Najar are denied. As to the fourth
petitioner, Wazir, the Court concludes that the possibility of
friction with Afghanistan, his country of citizenship, precludes
his invocation of the Suspension Clause under the Boumediene
balance of factors.
Judge Bates's opinion strikes me as a careful and thorough
application of [2]Boumediene. The result is plausible under that case,
especially given the vagueness of Boumediene and its multi-factor
approach.
At the same time, my guess is that the Supreme Court would (will?)
look at this differently. Judge Bates ends up focusing a lot on the
practical control that the U.S. exerts at Bagram, especially around
page 30:
Perhaps the difference in jurisdiction precludes the United States
from operating at Bagram, as it does at Guantanamo, entirely free
from the scrutiny of the host country. As a practical matter,
however, when assessing day-to-day activities at Bagram, the lack
of complete "jurisdiction" does not appreciably undermine the
conclusion that the United States exercises a very high "objective
degree of control."
My guess is that the Supreme Court would weigh freedom from scrutiny
by the host country as a formal legal matter as more important than
does Judge Bates, and that the Court would end up effectively limiting
Boumediene to Guantanamo so that it generally does not cover detention
elsewhere. That's my guess, at least. Obviously this will be an
important case to watch.
References
1.
http://www.scotusblog.com/wp/wp-content/uploads/2009/04/bagram-ruling-bates-4-2-09.pdf
2. http://www.law.cornell.edu/supct/html/06-1195.ZS.html
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