Al Maqaleh Revisited: Has Anything Changed?

Part III

Al Maqaleh Revisited: Has Anything Changed?

In Part II I explored the application of habeas outside the U.S. to foreigners in Boumediene and Al Maqaleh. The Al Maqaleh court ended up deciding habeas does not apply to the detainees in Bagram. But the circuit court’s decision in Al Maqaleh did not mark the end of the road for the Bagram detainees in court.

A new claim was made in the U.S. District Court for the District of Columbia on April 4, 2011 in the Al Maqaleh litigation, a claim that offered another chance for establishing access to habeas for detainees in Bagram.[1] Representatives of the detainees raised a number of issues including the argument that had new evidence that showed two things: that there were no real practical obstacles to holding trials in Bagram, and that Bagram was being used “for the purpose of avoiding judicial scrutiny.”[2]  The U.S. government immediately, in May 2011, filed a motion to have the case dismissed.[3] The dismissal briefing was completed in October, 2011 and after months of silence from the court a motions hearing was set for July, 2012.[4] Following that hearing, on September 25, 2012 petitioners filed their supplemented motion in Al-Maqaleh v. Gates and Hamidullah v. Obama, a companion case, which presented new facts to counter the government’s motion to dismiss the case.[5] The case was finally decided on October 19, 2012.[6]

The first piece of new evidence offered by detainees in September, 2012 was a letter from  President Karzai’s Chief of Staff Abdul Khurran, stating that Afghanistan “has no desire for them [foreign detainees] to remain in the country,” and that “Afghanistan favors these individuals having access to a fair judicial process … by a competent court.”[7] If the host nation had a problem with trials being held in its country, that disagreement would be an obstacle because the trial would go directly against the host country’s wishes. But here a representative of the Afghan government explicitly said that it supports a fair trial for the detainees. Afghan government support arguably changes the situation from before in that it makes the environment less hostile for habeas, and means that habeas litigation would not damage the relationship between the nations. Furthermore, Afghan criminal trials are already proceeding in Bagram for some of the transferred Afghan detainees.[8] The fact that trials are held in Bagram can be persuasive in determining that there may be no practical obstacles due to war since orderly trials are already being conducted on the same base. A counterargument would be that the U.S. and Afghanistan are still engaged in hostilities with the Taliban and Al Qaeda, so not only are they still in a warzone, but a trial risks sending an enemy back to the field.

The second point, the argument that Bagram is being used to avoid judicial scrutiny, does not bear on the three factors established in the Boumediene case. But the court did not limit the habeas factors to three. The Boumediene court said “at least three” factors applied.[9] The court’s words imply that other factors may help determine if habeas applies. The claim of avoiding judicial scrutiny asserts that the main reason detainees are moved to Bagram is to be held indefinitely with no right to habeas. The two declarations presented were from former government officials. One was a former State Department official from 2002-05, Col. Lawrence B. Wilkerson (Ret.), and the other, Mr. Glenn Carle, was a former CIA agent who worked in clandestine service from 2003-07.[10] In his declaration, Col. Wilkerson said that officials “often chose where to send and where to keep prisoners in the Global War on Terror based on expectations that attorneys for the U.S. government would resist legal challenges … by arguing federal jurisdiction did not apply beyond the borders of the U.S.”[11] He went on to say that although certain detainees were brought to Bagram so officials could gather information, subsequent and ongoing detention there was used to avoid judicial review.[12] Mr. Carle gave similar information but added that keeping detainees in Bagram was motivated by the desire to keep them from asserting a right to counsel or any other right guaranteed by the U.S. judicial system.[13]  These declarations echoed the worry of the Supreme Court in Boumediene, which was that “the political branches could switch the Constitution on or off at will by strategically choosing detention sites.”[14] The detainees hoped the court would weigh both the avoiding judicial scrutiny and practical obstacles factors along with the other factors and find habeas to apply to the detainees.

On October 19, 2012, after reviewing the detainees’ new facts and the government’s response, the district court decided to grant the government’s motion to dismiss the case.[15] The court found the new arguments insufficient to change the circuit court’s ruling.[16] The court discussed several issues in the case, I will focus on the two I consider the most important.[17]

First I will discuss the facts regarding the practical obstacles factor.[18] The detainees claimed the U.S. allowed 36 “full blown” trials in the Afghan section of Bagram, with judges, lawyers and reporters all at the base.[19] The U.S. said the trials were “purely Afghan run,” meaning the U.S. had minimal involvement. Based on the facts, the court described the extent of U.S. involvement as “facilitating the trials by allowing detainees to appear for trial and mentoring the Afghan participants.”[20] This minimum participation by the U.S. meant that it was the Afghan government that decided to have trials, and ran them fully. An Afghan decision does not show that there are no practical obstacles for the U.S.[21] In the earlier Al Maqaleh decision, where the Court of Appeals addressed the issue, it looked to see if trials would divert military attention from war, and considered the difficulties of litigating in a warzone.[22] Here the Afghans were supplying the majority of the resources for trial including personnel like lawyers and judges.[23] By contrast in a possible habeas case the U.S. would provide most if not all resources and personnel, significantly diverting attention from the war.[24] The court was more speculative in addressing the problems of litigation in a warzone, saying “the security threat might be different depending on which government was in charge of litigation.”[25] In other words, the insurgents may be more likely to attack during an American habeas trial than an Afghan criminal trial. That argument was compelling enough for the court to side with the government on this point.

The court then looked into the claim that habeas trials would not cause animosity between sovereign and guest nation because of Afghan approval.[26] The court agreed with the U.S. government that the letter by Khurram did not indicate he was “authorized to speak for the Afghan government, and arguably conflicts with contemporaneous public statements made by other officials.”[27] The court went on to explain that even if the letter was valid it was only one aspect to look at and did not change the diversion-of-resources or litigation-in-a-warzone aspect.[28] The court saw this aspect as still weighing “heavily against” the detainees just as the circuit court did.[29]

The court then went on to analyze the avoidance of judicial scrutiny factor. The testimony brought in by detainees was seen as, “although new, no different than evidence” that was presented in the Circuit Court case.[30] The court saw the testimony as being “conjecture” and “merely speculative about the likely motivations for detaining” the fifty men at Bagram.[31] Along with the “likely”[32] or possible reasons mentioned in the testimony the court gives other “logical”[33] reasons for detention in Bagram as opposed to Guantanamo such as:

The majority of detainees are presumably captured in the Middle East, half a world away from Guantanamo, and can more conveniently be detained closer, at least for some time.  In addition, the international publicity and criticism surrounding Guantanamo had moved the Bush administration to make public statements that it “would like to close Guantanamo as early as 2006.”[34]

The detainees claimed they would be able to uncover more proof of “purposeful executive manipulation” if they were allowed broader discovery (the right to obtain information from the other side about the case).[35] The district court relied on a precedent the circuit court used which said “habeas petitioners are not entitled” to broad discovery and have to show “sufficient need” to receive that discovery right.[36] The circuit court defined sufficient need here as “solid evidence of evasion,” and the district court found that the detainees were not able to meet the solid evidence standard since the evidence they presented was circumstantial at best.[37] The court denied the discovery request, and found no compelling evidence of avoidance of judicial scrutiny. Since none of the new evidence brought by the detainees distinguished the case from what was before the circuit court, the district court accepted the government’s motion to dismiss. This decision does not end the case, since the detainees can always appeal the district court’s decision. But in all likelihood the appeal will be turned down by the circuit court since it set the high standards applied in the district court’s review.

With the detainees’ chances of obtaining habeas rights at Bagram through the courts not looking good, their future remains uncertain. Other more political factors may come into play and have an effect on U.S. detention policy in Bagram. This possibility will be discussed in Part IV.


[1] Larkin Reynolds, Al Maqaleh Update and the Boumediene “Factors” (July 13, 2011, 11:10am), http://www.lawfareblog.com/2011/07/al-maqaleh-update-and-the-boumediene-factors/.

[2] Declaration of Ramzi Kassem at 2, Al Maqaleh v. Gates (D.D.C. September 25, 2012) )[hereafter Kassem Declaration], available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf.

[3] Larkin Reynolds, Hearing Today in Al Maqaleh v. Rumsfeld (July 16, 2012 9:10 am), http://www.lawfareblog.com/2012/07/hearing-today-in-al-maqaleh-v-rumsfeld/.

[4] Id.

[5] Wells Bennett, Supplementary Declarations and Exhibits Filed in Al Maqaleh (Sept. 25, 2012, 12:43pm), http://www.lawfareblog.com/2012/09/supplementary-declarations-and-exhibits-filed-in-al-maqaleh/.

[6] Memorandum Opinion at 24, Al Maqaleh v. Gates (D.D.C. October 19, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/10/85-Memorandum-Opinion.pdf.

[7] Kassem Declaration, Exhibit 1 at 5, Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf.

[8] See Mike Zhang’s Article: The Review Process for Detainees After the United States-Afghanistan Detainee Transfer.

[9] Boumediene v. Bush, 553 U.S. 766 (2008).

[10] Kassem Declaration Exhibit 2 (Declaration of Col. Lawrence B. Wilkerson) at 2, Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf.

[11] Id. at 9.

[12] Id.

[13] Kassem Declaration Exhibit 3 (Declaration of Glenn Carle) at 3-4, Al Maqaleh v. Gates (D.D.C. September 25, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/09/Bakri_-RK-decl_-092412.pdf.

[14] Boumediene, 533 U.S. at 765.

[15] Memorandum Opinion at 24, Al Maqaleh v. Gates (D.D.C. October 19, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/10/85-Memorandum-Opinion.pdf.

[16] Id.

[17] Memorandum Opinion at 24, Al Maqaleh v. Gates (D.D.C. October 19, 2012), available at http://www.lawfareblog.com/wp-content/uploads/2012/10/85-Memorandum-Opinion.pdf (Other issues the court discusses are the intent to remain in Bagram by the U.S. and the adequacy of the Detention Review Board’s procedure and determination.

[18] Id. at 13.

[19] Id. at 13-14.

[20] Id.

[21] Id. at 14.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at 15.

[27] Id.

[28] Id.

[29] Id. at 16.

[30] Id. at 20.

[31] Id. at 20 n.13.

[32] Id. at 19.

[33] Id.

[34] Id.

[35] Id. at 20-21.

[36] Id. at 21.

[37] Id. at 22.