From Ludecke to Boumediene: A Path to Habeas for Bagram Detainees?

“Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled.” Justice Frankfurter, Ludecke v. Watkins, 335 U.S. 160, 169 (1948).

In light of the Global War on Terror, the fate of the 66[1] foreign nationals detained in U.S. custody at Bagram is a veritable dark cloud hanging over American foreign policy.  Their detention is supported by the law of war and, as interpreted by the Supreme Court, authorized by the 2001 Authorization for Use of Military Force (AUMF) insofar as there remains a definitive end to the hostilities in sight.[2] Indeed, “precisely to avoid interpreting the scope of the AUMF in a way that might raise broader legal concerns, the courts have embraced the view that the detention authority granted by Congress was not meant to be unlimited, but was intended to be cabined by this particular ‘longstanding principle’ of the law of war.”[3] The indeterminable nature of a “war” against terrorism, however, raises the prospect of an armed conflict in which hostilities may never cease.  Given the impending withdrawal of U.S. forces from Afghanistan, and the likelihood that most combat activity, if not all, will conclude by the end of 2014,[4] the question of just what exactly will signify an “end to the hostilities” in a “war” without “end” is now up for debate.

The Supreme Court examines the legal issues surrounding this debate in three key cases, illustrating the complex nature of the prospect of indefinite detention. Central to these cases is the notion of “active hostilities” and the role it plays in defining the concept, and duration, of “war.”  In affirming the AUMF’s authority to detain an American citizen who allegedly fought alongside the Taliban, the plurality in Hamdi v. Rumsfeld (2004) looked to the “active combat operations” still at play in Afghanistan to support its conclusion.[5]  This commentary will begin with a brief exploration of Hamdi and its establishment of the authority for detention in the war against terror as predicated on the principles of the law of war.  It will then discuss the Court’s 1948 decision in Ludecke v. Watkins to uphold the President’s authority to deport a detained alien enemy after the actual hostilities of World War II had ceased.  Ludecke emphatically held that “war,” and thus any war power invoked during its tenure, may only be terminated by a political act, and thus implied that the existence of active hostilities is irrelevant in the discourse on the war power of detention.[6]  Finally, this commentary will look to the Court’s analysis in Boumediene v. Bush (2008) as a modification of Ludecke’s holding to suggest there may be constitutional limits to the war power of detention under circumstances reflective of conflicts waged in the war on terror.[7]

Hamdi: “Detention may last no longer than active hostilities.”

In the watershed case for detainee litigation, the plurality in Hamdi concluded that the AUMF “is explicit congressional authorization” for the detention of individuals classified as enemy combatants.”[8]  Hamdi was an American citizen who was captured in Afghanistan and classified as an “enemy combatant” for allegedly taking up arms with the Taliban.[9]  The plurality decision was based on the laws of war as reflected in the Geneva Convention and elsewhere, and relied heavily upon the “established principle” that “detention may last no longer than active hostilities.”[10] The plurality conceded, however, in addressing Hamdi’s contention that the AUMF did not authorize indefinite detention, that its understanding of the authority granted by the AUMF “may unravel” if the “practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war.”[11] Given that the AUMF does not specify any geographic location for the “war on terror,” the plurality in effect dismissed the fact that operations comprising such an amorphous conflict are indeed unlike those that have shaped the law of war doctrine.[12]  Instead, it reframed the inquiry so as to identify the battle against the Taliban in Afghanistan as the relevant conflict at issue.

By focusing on the “active combat operations against Taliban fighters [in Afghanistan],” the Hamdi plurality implied there is a limit to those hostilities to which the AUMF applies.  The judgment cited Department of Defense media briefings and news reports about the increasing number of troops and ongoing operations in Afghanistan in its characterization of active hostilities.[13]  It explained that “if the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force’ and therefore are authorized by the AUMF.”[14] This proposition, however, also fell short of addressing whether the authority to detain would expire with the cessation of active combat in Afghanistan.  The last authoritative precedent on that issue – whether the exercise of a statutory war power ends with the termination of hostilities – was the Court’s 1948 decision in Ludecke v. Watkins.[15]

Ludecke: The war power “is not exhausted when the shooting stops.”

In Ludecke, a case in which a German national residing in the United States sought relief from his impending deportation under the Alien Enemy Act of 1798 (the “Act”), the Court was tasked with determining whether the President’s power to detain and deport alien enemies under the Act survived the cessation of actual hostilities following World War II.[16] Ludecke, ordered subject to removal in 1946, argued that the President’s war power terminated with the end of hostilities.[17] The Court rejected his contention and held that “war does not end with a cease-fire order,” and that the war power exercised by the President during a conflict “is not exhausted when the shooting stops.” The central holding was ultimately expressed in the Court’s statement that whether it be “by treaty or legislation or Presidential proclamation … [the] termination of [“the state of war”] is a political act.”[18]  Indeed, as Stephen Vladeck points out in his paper on Ludecke’s legacy in the war against terror, “the formal termination of World War II did not come until an act of Congress passed in October 1951, nearly six and one-half years after … Germany’s unconditional surrender.”[19]

Ludecke explicitly leaves the determination of when a war is concluded to the political branches, and rests its decision on the judiciary’s institutional incompetence to remark on the distinction between active hostilities and cessation of combat:[20]

It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the Peace has not come.  There are matters of political judgment for which judges have neither technical competence nor official responsibility.[21]

Reconciling Ludecke with the conflict in Afghanistan challenges the very underpinnings of the laws of war that the plurality relied upon in Hamdi.  If the authority to detain enemy combatants, such as that granted by the AUMF, is predicated on the norm that combatants may only be detained until the end of hostilities, but the end of active combat doesn’t necessarily constitute an “end” to war for the purposes of determining the viability of the war power of detention, applying Ludecke to the war on terror would suggest that the President retains the power to detain enemy combatants indefinitely[22] – and that the reality of indefinite detention lies beyond the Court’s reach to review.  In 2008, however, the Court, albeit briefly, addressed these challenges in Boumediene v. Bush.             

Boumediene: The degree of “active hostilities” in a “theater of war” matters.

In Boumediene v. Bush, the Supreme Court established the legal framework governing the scope of habeas corpus jurisdiction as it applies to enemy combatant aliens detained abroad.[23]  It its final analysis, the Court found that section 7 of the Military Commissions Act of 2006 (“MCA”)[24] unconstitutionally suspended the writ of habeas corpus for those detainees held at Guantanamo, and concluded that the detainees were entitled to bring habeas corpus petitions to federal courts.[25]  In determining the jurisdictional reach of the writ, the Court explained three relevant factors it relied upon: “1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; 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.”[26]

While still paying deference to the political branches by not speaking directly about the content and duration of the war powers specifically, the Court slightly departed from its posture in Ludecke and overtly referenced its authority to check the Executive on matters of detention:

The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our society….

Our opinion does not undermine the Executive’s powers as Commander in Chief.  On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch….  [F]ew exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention.  Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. [27]

Throughout its decision, Boumediene was careful not to “address the content of the law that governs petitioners’ detention.”[28]  But in its analysis supporting the grant of the writ, the Court may have provided an avenue for detainees to at least come to court even if the war has not been declared over, without opening the Pandora’s box of legal issues the Court has yet to address.

In 2012, the Boumediene balancing test was applied to the habeas petitions of three foreign nationals detained at Bagram, each of whom had allegedly been apprehended outside of Afghanistan.[29]  The D.C. Circuit Court of Appeals’ decision that the detainees were not entitled to habeas turned primarily on the geopolitical distinction between Guantanamo and Bagram, and the level of combat present at each.  Most notable was the court’s evaluation of the third factor – the practical obstacles inherent in resolving the prisoner’s right to a proceeding – which weighed “overwhelmingly” in favor of the respondents.[30]   The court founded its analysis on the fact that Bagram was located in a “theater of war” where active hostilities were still being conducted.[31]  This reality presented critical logistical and procedural challenges that the court determined prevented the detainees at Bagram from bringing habeas petitions because obtaining the writ would be too impracticable.[32]

Indeed, the Boumediene Court had expressly noted that had Guantanamo been located in an active theater of war, the outcome of the case might have been different.[33]  Considering the latest challenges to the adoption of the bilateral security agreement between Afghanistan and the U.S., it is possible that “active” armed combat against the Taliban will cease by the end of 2014.[34]  In that event, it may be possible to make an argument that the “hostilities” authorized under the AUMF have come to an end.  The most realistic scenario, however, may be that when the “active hostilities” against the Taliban decline, U.S. forces will continue to have some sort of presence in Afghanistan, and may even remain engaged in combat operations of a lesser intensity than that of active armed conflict.

To that extent, even absent an official proclamation terminating the war, the status of Bagram detainees can be addressed sooner than it would otherwise appear.  Whether the conflict in Afghanistan, or even the “war” on terrorism for that matter, remains “formally” alive, under Boumediene the decline of “active hostilities” between the U.S. and Taliban may provide a path for detainees to seek habeas even if the political branches have not declared the war over.  How the courts will handle these challenges, however, remains to be seen.

[1] Letter from Barack Obama, President, to Congressional Leaders Regarding the War Powers Resolutions, The White House (June 14, 2013),

[2] Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

[3] Deborah Pearlstein, Law at the End of War 55 (Cardozo School of Law Faculty Research Paper, Paper No. 406, 2013) (quoting Hamdi, 542 U.S. at 521 (plurality opinion of O’Connor, J.)), available at or

[4] Jessica Donati & Mark Felsenthal, U.S. Says May Pull Out All Troops as Afghan Leader Holds Up Deal, Reuters, Nov. 26, 2013,

[5] Hamdi, 542 U.S. at 521 (plurality opinion of O’Connor, J.).

[6] Ludecke v. Watkins, 335 U.S. 160 (1948).

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

[8] Hamdi, 542 U.S. at 517 (plurality opinion of O’Connor, J.).

[9] Id.

[10] Id. at 520.

[11] Id. at 521.

[12] Stephen Vladeck, Ludecke’s Lengthening Shadow: Limits on the War Powers When Wars Don’t End, 3 Journal of National Security Law & Policy 1, 38, 43 (2006), available at or

[13] Hamdi, 542 U.S. at 521.

[14] Id.

[15] Vladeck, supra note 11, at 3.

[16] Ludecke, 335 U.S. at 162-66.

[17] Id.

[18] Id. at 168-69.

[19] Vladeck, supra note 11, at 3.

[20] Id. at 31.

[21] Ludecke, 335 U.S. at 170.

[22] Vladeck, supra note 11, at 4.

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

[24] MCA § 7(a), 120 Stat. 2600 (2006), amended 28 U.S.C. § 2241(e)(1) (2006) (power to grant writ) to read “No court … shall have jurisdiction to hear or consider an application for a write of habeas corpus filed by … an alien detained by the United States who has been determined … an enemy combatant …. Boumediene, 553 U.S. at 736.

[25] Id. at 792.

[26] Id. at 766.

[27] Id. at 797.

[28] Id. at 798.

[29] “Petitioner Fadi Al-Maqaleh is a Yemeni citizen who alleges he was …. captured beyond Afghan borders, [however] a sworn declaration from Colonel James W. Gray, Commander of Detention Operations, states that he was captured in Zabul, Afghanistan.  [Petitioner] Redha Al-Najar is a Tunisian citizen who alleges he was captured in Pakistan ….  [Petitioner] Amin Al-Bakri is a Yemeni citizen who alleges he was captured in Thailand ….” Al-Maqaleh v. Gates, 605 F.3d 84, 87 (D.C. Cir. 2010)).

[30] Id. at 97.

[31] Al Maqaleh, 605 F.3d at 98.   

[32] Id.

[33] Boumediene, 553 U.S. at 770.

[34] See Donati & Felsenthal, supra note 4.