Friday, May 21, 2010

Bagram Is Not Gitmo, Says DC Circuit

By Mike Dorf

Herewith a few reactions to today's D.C. Circuit's ruling in Al Maqaleh v. Gates that the constitutional right of alien enemy combatants to file a federal habeas petition--found by the Supreme Court in Boumediene v. Bush to cover detainees at Gitmo--does not extend to detainees at Bagram Air Base in Afghanistan:

I.  It's now very hard to characterize detention issues (as opposed to treatment issues) as simply a mess created by the Bush Administration.  As the DC Circuit opinion noted, the Obama Administration was given the opportunity to take a different view, but stuck with the Bush Administration's position that Boumediene does not cover Bagram.  Neal Katyal--who successfully represented Gitmo detainees in the Hamdan case--argued for the government in Al Maqaleh, and the panel that ruled for the government included two liberal judges: Harry Edwards and David Tatel.  (The third member of the panel, and the author of the unanimous opinion, was the more conservative Judge David Sentelle.)

II.  About a third of the opinion is devoted to recounting the backing-and-forthing of detention cases among the district court, the DC Circuit, Congress, and the Supreme Court, including the Supreme Court's rulings in Rasul, Hamdan, and Boumediene.  Perhaps I'm reading this into the opinion, but I detected a distinct sub-text of "What was the point of all of that, if this is where we end up?"

III.  Where we end up is with the DC Circuit applying a three-part balancing test from Boumediene, with the factors and their application going as follows:

"(1) the citizenship and status of the detainee and the adequacy of the process through which that status
determination was made"

The detainees win this one.  Their citizenship and status (aliens held as unlawful enemy combatants) are the same as those of the Boumediene detainees.  The process they received--an Unlawful Enemy Combatant Review Board--was even less protective of the rights of detainees than the Combatant Status Review Tribunals found inadequate in Boumediene.

"(2) the nature of the sites where apprehension and then detention took place"

The government wins this one because the government does not exercise over Bagram anything like the de facto sovereignty it exercises over Gitmo.  Although the DC Circuit rejected the government's proposed per se rule that anything less than de facto sovereignty means no constitutional right to habeas, the panel also called the detainees' lawyers to task for failing to explain how, under their proposed alternative, there would ever be a U.S. military base on foreign soil to which the writ does not run.

With the score tied 1-1, that brought in play the third factor:

"(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ."

Here the court thought the government won decisively.  Quoting the Eisentrager case, and making clear that its observations were even more applicable to Bagram now than they were in Germany after the end of World War II, the court explained that habeas:

trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

IV.  At the end of the opinion, Judge Sentelle addresses what many may regard as the core complaint: The government chose to detain these plaintiffs--all of whom allege they were apprehended outside Afghanistan--in an active war zone, so why should the characteristics of the military base the government chose determine the availability of habeas?  The court says that the three-factor test leaves room for the possibility of an additional factor where it appears that the government chose where to house detainees in an effort to avoid judicial supervision, but that such a claim is not plausible here: These detainees were taken to Bagram long before Boumediene even established a constitutional right to habeas for people at Gitmo.

With due respect, I think this answer inadequate in two ways.  First, it was pretty clear that the government originally chose Gitmo rather than a military base formally within the U.S. precisely because, under a plausible reading of Eisentrager, doing so would avoid habeas jurisdiction.  Perhaps the government didn't anticipate that it would get an advantage from holding prisoners at Bagram rather than Gitmo, but it wasn't for lack of trying.

Second, there is a more subtle problem.  Even if we grant that the government did not in the past deliberately choose to hold these detainees at Bagram for reasons of jurisdiction-avoidance, the rule the court announces--namely, that the writ doesn't run to active war zones though it does sometimes run to other places--gives the government an incentive going forward to hold prisoners in active war zones.  Perhaps that will sometimes make sense for military reasons, but often it won't.  In WWII, the U.S. held thousands of German prisoners inside the U.S., presumably because they could be more readily secured here than in places that German troops could more easily attack.  It is at least a bit ironic that a decision that aims to protect the military from civilian judicial interference establishes a rule that will make considerations of court jurisdiction relevant to--and occasionally dispositive of--military detention decisions.

V.  So what's my solution?  I confess that I don't really have one, because I think at bottom we have a categorical mismatch.  We have two paradigms for detention: (1) crime, which gives rise to all of the procedural protections of the civilian justice system; and (2) war, which gives rise to the protections of international humanitarian law but typically not a right of access to civilian courts.  People engaging in terrorism fall somewhere in between crime and war, and we still haven't figured out how exactly to address that problem.  So far, the most creative thinking has come from those who want to have the advantages of military detention (no judicial supervision) without paying the price (e.g., no interrogation).  That was the view of the Bush Administration, continued to a substantial extent by Obama.  It's also reflected in the recent proposal by Joe Lieberman to strip terrorism suspects of their citizenship.  What's needed are creative ways to address the intermediate category that respect core principles of due process (whether strictly required by the Constitution or not).  I had hoped we would get those from the Obama Administration.  So far, not so much.


Paul Scott said...

"People engaging in terrorism fall somewhere in between crime and war..."

Apart from the absurd label - "War" on Terror - how are these situations really "somewhere in between?"

What characteristics of "terrorists" make the violent acts something other than crime? Since it is, to the best of my knowledge, not disputed that these acts are in furtherance of the military objectives of a sovereign, in what way is any of this like war?

Michael C. Dorf said...

Terrorism is, of course, a tactic used for many different goals. It invariably violates the criminal law. However, much terrorism is closely analogous to guerrilla warfare. Consider Hezbollah and Hamas, which are terrorist organizations but also political entities (in Lebanon and Gaza, respectively). A member of Hezbollah or Hamas who entered Israel proper and planted a bomb on a bus could, I suppose, simply be treated as a criminal, but doing so would ignore the political aims of his organization, which regards itself as engaged in an armed struggle (in lay terms, "war") with Israel, and regards the bomb planting as part of that struggle (or at least various terrorist groups have taken that view at various times).

Although separated by greater distance, we can say roughly the same thing about al Qaeda relative to the U.S. Or consider the Pakistani Taliban. When members of the Pakistani Taliban in Pakistan shoot at U.S. drones, or when they venture to Afghanistan to shoot at U.S. troops, they are engaging in war, albeit with some "unconventional" tactics. When they send (if that's what they do) a guy to Times Square to blow up a van, they are "bringing the fight to the enemy."

To be clear, I don't think that anything should turn on whether we conclude that the people involved in these cases are "really" engaged in war or "really" engaged in crime. My point is simply that they don't fit neatly into one paradigm to the exclusion of the other, and this makes for a procrustean exercise when we pretend that they do.

Behzad Mirhashem said...

This case does not really turn on the question of whether or not to treat terrorism purely as a criminal law problem. The issue here is not whether terrorists should get all the protections of the criminal justice system. The right to have the legality of one's detention reviewed applies in all sorts of non-criminal settings as well. For example, a person civilly committed as being mentally ill and dangerous can bring a habeas action even if he was not entitled to all the protections of the criminal justice system. Whatever the rights of an alleged terrorist, why shouldn't the legality of his detention be tested before someone outside the executive branch?

Michael C. Dorf said...

Behzad: It was not my claim that this particular case turned on the distinction between crime and war. Rather, I was reflecting on the broader problem. That said, you are not facing up to the fact that this is a genuine problem. Not everyone held by the executive anywhere has a right to habeas. In particular, per Eisentrager--which the DC Circuit correctly says remains good law w/r/t its constitutional holding--military captives outside the U.S. do not have a right to habeas. It would have been unworkable for the U.S. to provide habeas for every one of the thousands of POWs captured in WW II. Of course, one can then say that habeas was completely unnecessary for POWs who were captured in uniform, because there was no doubt about the government's ability to hold them; however, when fighting an unconventional force that doesn't wear uniforms (e.g., the Taliban), civilian judicial review becomes necessary. Yet there remain the severe practical limitations. This is not the first time the U.S. has faced a guerrilla force and, significantly, habeas petitions were not entertained from people claiming to have been mistakenly identified as Vietcong.

The core difficulty here is that there is no sharp dividing line between guerrilla forces in the field and "terrorists." My point was that the courts' approach of making things turn on where they're held misses the point; the Bush approach of treating them all as combatants gives the executive too much unreviewable authority; and that civil libertarians' approach of giving everyone habeas is unworkable for the reasons stated in Eisentrager for conventional military. Thus the need for a new category.

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