Boumediene and Al Maqaleh: The Application of Habeas to Foreigners Outside the U.S.

Part II

 Boumediene and Al Maqaleh: The Application of Habeas to Foreigners Outside the U.S.

With a right to habeas the foreign detainees in Afghanistan would have a chance to challenge their detention in court, and have a greater chance of avoiding indefinite detention. However habeas rights are not always guaranteed to foreigners held by the U.S. outside our borders.

The Supreme Court addressed the availability of habeas corpus (a constitutional right to challenge the legitimacy of one’s detention) outside the U.S. in the Boumediene case.[1] The court said that even when the U.S. “acts outside its borders, its powers are not absolute and unlimited,” but are subject to limits in the Constitution.[2] Three factors were looked at in this case: “1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”[3]  Each factor was applied individually and then weighed with the others to determine if the right to habeas applied to the detainees.[4] For instance, in Boumediene the procedure to determine citizenship and status was found to be inadequate since detainee procedural protection was limited. As to the second factor, even though the site of detention (Guantanamo Bay) was technically outside U.S. sovereign territory, it was not in “transient possession.”[5] Guantanamo is within the constant and total control of the U.S. and is practically seen as being subject to U.S. rights and laws.[6] The court also found that there are no obstacles to having a trial in the facility since the base was far from any hostile actions and fully under U.S. control (factor number three).[7] When weighed, the factors were in favor of granting habeas for detainees in Guantanamo Bay.[8]

When the three factor test was applied in a subsequent case, it led to a different result. The United States Court of Appeals for the D.C. Circuit in Al Maqaleh held, by distinguishing certain factors from Boumediene, that habeas did not apply to enemy combatants in Afghanistan.[9] All three factors are different here: the review process, the location of detention and the increased likelihood that there will be practical obstacles to having a trial.[10] The first difference between Guantanamo and Bagram is in the way the detainees are screened. The process used in Bagram provides less protection for the rights of detainees in the determination of status than the process in Guantanamo.[11] So since the process of determining the status of the detainee is considered inadequate in Guantanamo the more limited process at Bagram goes in the detainees’ favor. The second difference is that Guantanamo, unlike Bagram, has been under constant control by the U.S for over 100 years, and while Bagram has a lease with options for the duration of the lease,[12] the U.S shows no intention to “occupy the base with permanence.”[13] This means that the U.S. is not in constant and total control of the base, so the rights and laws of the U.S. cannot so easily be seen as practically applying.

For the third difference the court distinguishes Boumediene by noting “the large practical differences in holding a detainee in an active combat zone compared to a non-active, physically controlled area such as Guantánamo.”[14] The Boumediene court says that had the Guantanamo base been in an “active theatre of war, the arguments that issuing a writ would be impractical would carry more weight.”[15] Bagram remains in an active theatre of combat and is “subject to repeated attacks from Al Qaeda and the Taliban” which have led to military deaths.[16] Having trials in such a warzone would waste resources, distract the troops from their mission and lower troop morale by giving possible enemies a chance to return into the battlefield. This level of danger would seem to give more credence to the dangers of a habeas review.

The court also noted the practical difficulties in granting habeas to an alien of both the U.S. and Afghanistan in the sovereign nation of Afghanistan.[17] (The district court had already decided not to grant relief to a detainee with Afghan citizenship because of the risk of practical difficulties,[18] so all the detainees before the court were non-Afghan.) If Afghanistan disapproved of allowing a trial for detainees the relationship between the two nations could be damaged.[19] It might be inferred that if there is evidence that the sovereign host nation is in favor of the U.S. extending habeas to detainees then there would be no fear of hostility between the nations.

Thus when the factors are weighed, we see factor one in favor of granting habeas and factors two and three in favor of not applying habeas. Consequently, the court decided that a right to habeas is not available to detainees of Bagram.[20] Having the right of habeas does not guarantee freedom for the detainees, but a habeas review gives them a more balanced and fair challenge to their incarceration than they had before. If the detainees cannot fairly and adequately challenge their detention, the result may be a greater likelihood of indefinite incarceration.

Therefore, if the U.S. can no longer hold detainees in Afghanistan, it would need to find a location where the Boumediene factors are interpreted as leaning towards denying habeas rights, in order to continue holding the detainees while restricting habeas. However, if the U.S. is able to continue holding detainees in Bagram habeas will not apply, unless a challenge is made that can change the situation.

A renewed challenge was in fact brought in 2012 in order to bring habeas rights to Bagram detainees. New information was gathered in order to change the application of the three Boumediene factors to Bagram, and a new factor was raised as well. The case will be discussed in Part III.


[1] Boumediene v. Bush, 553 U.S. 723 (2008).

[2] Id. at 765.

[3] Id. at 766.

[4] Id.

[5] Id. at 767.

[6] Id.

[7] Id. at 768.

[8] Id. at 798.

[9] Al Maqaleh v. Gates, 605 F.3d 84, 96-97 (D.C. Cir. 2010).

[10] Id. at 96.

[11] Id. at 96.

[12] Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield, U.S.-Afg., Sept. 26, 2006, https://nylssites.wpengine.com/detainedbyus/wp-content/uploads/sites/11/2011/03/Bagram-Lease.pdf.

[13] Id. at 97.

[14] Robert Povtak, Jurisdiction of Habeas Corpus Claims, Detained by U.S., http://www.detainedbyus.org/legal-resources/u-s-law/ (citing Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)).

[15] Boumediene, 553 U.S. at 768-769.

[16] Al Maqaleh v. Gates, 605 F.3d at 88.

[17] Al Maqaleh, 605 F.3d at 99.

[18] Wazir v. Gates, 629 F. Supp. 2d 63, 68 (D.D.C. 2009).

[19] Al Maqaleh, 605 F.3d at 99.

[20] Id. at 98.