What Will Happen to the Prisoners at Bagram?

On May 21st, the D.C. Court of Appeals ruled that Bagram detainees do not have the right to habeas corpus; that is, the right to challenge their detention in U.S. Federal Courts; that is, the same right that was granted to Guantanamo detainees in two precedent setting Supreme Court rulings. The Appeals Courts' decision was grounded in reasoning that was largely based upon the "nature of the sites where apprehension and detention took place."

The Court ruled that, because Bagram was located within an active theater of war, granting habeas could have the damaging effect of interfering with ongoing military efforts in the region. The Court further reasoned that the location of Bagram, within the sovereign territory of Afghanistan, presented "practical difficulties" insofar as extending constitutional protections to detainees might risk disrupting relations between the United States and Afghan government. In terms of U.S. sovereignty over Bagram Airfield Base, the Court ruled by elucidating the differences that they believe distinguish Guantanamo Bay from Bagram. According to the ruling, although the United States has entered into leasing agreements with host countries in both cases, the crucial difference lies in the fact that while the United States has maintained complete control of Guantanamo Bay for over a century, there is, in the Court's opinion, no indication that the government 'intends' to occupy the base at Bagram "with permanence."

Focusing on these aspects of the ruling alone however, does not adequately belie the common threads that the Court recognized as existing between Bagram and Guantanamo Bay -- common threads that, despite recognition, did not compel the Court to rule in favor of habeas. For example, the Court clearly acknowledged the fact that the status of Bagram detainees is identical to Guantanamo detainees insofar as both are being held as enemy aliens and can claim protection of the right to habeas corpus under the Suspension Clause. More strongly, the Court asserted that the necessity for habeas review in Bagram is even greater than Guantanamo Bay since detainees at the base are subjected to Unlawful Enemy Combatant Review Boards (UECRB) that afford them with less protections and rights in the determination of their status than the Combatant Status Review Boards (CSRB) currently in place at Guantanamo.

The fact that these opinions were not ultimately determinative in the final ruling can be attributed to the weight that the Court placed upon its jurisdictional opinions. And it is this legal imbalance, which necessitates returning to the substantive nature of the petitioners' claims in Maqaleh v. Gates. The case itself concerns three petitioners, Fadi Al-Maqaleh, Amin Al-Bakri, and Redha Al-Najar, all of whom are non-Afghan citizens who were captured outside of Afghanistan before being sent to Bagram Airfield Base. What this means is that if the administration had decided to send these men to Guantanamo Bay instead of Bagram, they would undoubtedly have had the constitutional right to invoke the writ of habeas corpus. The status of the petitioners in Maqaleh -- foreigners captured outside of Afghan territory -- is imperative to note because it is precisely this status that created the possibility of litigation on their behalf.

We know this because when the case was at the District Court level, it had included a fourth petitioner, Haji Wazir, an Afghan citizen captured outside of Afghanistan. In April of 2009, when a ruling was issued in the cases of these four men, Judge John D. Bates dropped Haji Wazir's petition based on the reasoning that his citizenship might require the United States to be answerable to the Afghan government. While Wazir's was case was dismissed, Judge Bates ruled that since the issues surrounding the citizenship and conditions of capture of the three remaining petitioners were virtually identical to those of detainees at Guantanamo Bay, the cases contained considerable grounds for a decision in favor of habeas -- at least for foreign detainees captured outside of Afghanistan. The point here is that a very different ruling could have been issued if the Appeal Courts had followed the reasoning of the District Court in recognizing that the substantive nature of the petitioners' cases called, indeed necessitated, a more nuanced approach to the question of habeas.