Court Rules Combatant-Detainees in Afghanistan Can Challenge Detention…in U.S. Courts

Today, a district court judge in D.C. applied the Supreme Court’s ridiculous reasoning in last year’s Boumediene v. Bush to extend constitutional habeas rights to three aliens captured by the military during a war and held in a war-zone. The lengthy opinion is here (PDF).

Yes, aliens held overseas in military detention as combatants (and not just at Guantanamo Bay) have the constitutional right to habeas review in the federal courts. *facepalm*

The short version of the opinion is below the fold.

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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. But those obstacles are not as great as respondents claim, and certainly are not insurmountable. And importantly, for these petitioners, such practical barriers are largely of the Executive’s choosing — they were all apprehended elsewhere and then brought (i.e., rendered) to Bagram for detention now exceeding six years.

Based on those conclusions driven by application of the Boumediene test, the Court concludes that the Suspension Clause extends to, and hence habeas corpus review is available to, three of the four petitioners. As to the fourth, his Afghan citizenship — given the unique “practical obstacles” in the form of friction with the “host” country — is enough to tip the balance of the Boumediene factors against his claim to habeas corpus review. When a Bagram detainee has either been apprehended in Afghanistan or is a citizen of that country, the balance of factors may change. Although it may seem odd that different conclusions can be reached for different detainees at Bagram, in this Court’s view that is the predictable outcome of the functional, multifactor, detainee-by-detainee test the Supreme Court has mandated in Boumediene.


This Court lacks statutory jurisdiction to entertain these four habeas petitions. But MCA § 7(a), the statute stripping habeas jurisdiction, is unconstitutional as to three of the four petitioners. 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

Honestly, it almost feels like the judge is fucking with the Supreme Court by saying, “You wanted it, you got it, chumps.” The judge practically blames Boumediene for leaving him no option but to provide habeas review for these aliens.

BTW, here’s the really short version: WAF!


~ by Gabriel Malor on April 2, 2009.

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