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Friday, May 21, 2010

Out-of-Theater Capture (or, Why Maqaleh's Narrow Reasoning Sweeps So Broadly)

Entirely appropriately, the big legal news of the day has been the D.C. Circuit's 3-0 decision in Maqaleh, rejecting the jurisdiction of the federal courts to entertain habeas petitions by non-citizens detained at Bagram. There's lots to say about Chief Judge Sentelle's opinion, much of which has already been said by others. I hope to provide more analysis over the weekend, but let me drive home one point off the top:


Although Sentelle's opinion reads like a very careful, nuanced treatment of Boumediene, and so may seem to be rejecting the extreme arguments made by both sides, there's actually very little middle ground in this case. The Court of Appeals relies heavily on the fact that Bagram is "in theater," and that this means that its analysis doesn't necessarily reach other places outside the United States where we might hold non-citizen detainees. While this is descriptively true, it belies the most significant facts of the case--that the three detainees were neither picked up in Afghanistan nor were they from Afghanistan. The fact that they were held "in theater" resulted only from the Government's decision to move them there. Thus, Maqaleh will stand for the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas. 


To be fair, the panel went out of its way not to decide whether the same analysis would hold in cases where the Government seemed to be moving the detainees deliberately to avoid judicial review. But (1) how would the detainee ever prove that? And (2) why else would the Government voluntarily move detainees into a zone of active combat operations? Put another way, if this isn't that case, what will be?


At the end of his dissent in Boumediene, Justice Scalia emphasized the perverse incentive that today's decision supports. As he put it, had the executive branch known that Guantanamo would be "special," "the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves." 

Indeed.


Update: Just to clarify, let me note that the one case this logic would not apply to is a case where the detainee is picked up somewhere where there would be habeas jurisdiction (e.g., inside the U.S.). There, precedent is fairly clear that the Government can't transfer to defeat jurisdiction. But any non-citizen picked up anywhere else in the world could be held in Afghanistan, and, according to the D.C. Circuit, beyond the process of U.S. courts.

Posted by Steve Vladeck on May 21, 2010 at 03:08 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink

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"And (2) why else would the Government voluntarily move detainees into a zone of active combat operations? Put another way, if this isn't that case, what will be?"

Steve, I think you're off base here. A couple points:

1. It's easy to imagine a number of operationally legitimate reasons why someone captured away from a zone of active combat operations might then be detained within such a zone. If the nearest, secure U.S. detention facility is within the zone, that could explain it. If the only country willing to allow the U.S. to hold people in such circumstances is within the zone, that could explain it. And there are others. In short, there are plenty of reasons, having nothing to do with the reach of judicial review, why this could happen.

2. In this particular case, I think you're wrong to suggest that the detainees were held at Bagram in order to evade judicial review. As Sentelle's opinion makes clear, these detentions date to a time when it was far from clear that habeas extended to any location outside the U.S. So in order to think that the decision about detention location was based on a desire to evade judicial review, you'd have to think that the natural place to hold them would have been within the U.S., where habeas would have run. But that strains credulity. True, the military has in past wars held some POWs within the U.S. But we have never indulged a presumption that the natural place to hold someone captured abroad and held under the law of war is within the U.S., such that any decision to hold the person abroad should be understood as an attempt to evade judicial review. Isn't it far more plausible to think that in this case, the detention location decision was based on the military's operational considerations and not on a desire to evade judicial oversight?

What I've said here is not meant to dispute everything in your post. But your implication that the government would not move a detainee into an active combat zone except to evade judicial review, and that these detentions are best explained on that ground, is I think quite unpersuasive and unsupported.

Posted by: Trevor | May 21, 2010 3:39:09 PM

Trevor -- Thanks for your comment. I agree with you (and the D.C. Circuit) that the relevant decisions were made here before it was clear that Guantanamo would be within the purview of the U.S. courts, and so we cannot impute the intent behind the decision that we might from a similar decision today.

That being said, and perhaps this is my own ignorance, I'm hard-pressed to see what _other_ benefit the Government derives from moving a detainee picked up somewhere else into the Afghanistan theater. That's not to deny that such benefits might exist; only that it seems to me that they're far from obvious in the case of individuals with no direct connection to that theater (so, it would be different where the detainee is a citizen of Afghanistan). If anything, isn't it a waste of precious resources in a combat zone to devote the requisite manpower and other attention to guarding detainees on a long-term basis?

And, in any event, wouldn't the existence of such reasons prove the point that it will be exceedingly difficult, going forward, for detainees to demonstrate an intent to avoid review?

Posted by: Steve Vladeck | May 21, 2010 4:09:59 PM

I'm surprised you're hard-pressed to see the operational reasons. Suppose the government captures or otherwise gains custody of (perhaps he's turned over by the local authorities) an Al Qaeda leader in some Southeast Asian country. Suppose the government thinks it has the lawful authority to detain the person without charges (others might disagree, but that's a separate point so just assume it for now). It needs to figure out where to hold him. If the nearest secure U.S. military detention facility is Bagram, couldn't that all by itself provide a reason to take him there and hold him there?

It would be one thing if there were not yet any detention facility in the combat zone at all, so that the government was effectively building a facility in the zone just to hold people captured elsewhere. That would present a different situation. But given the fact that there is a large, secure U.S. detention facility in Afghanistan (which was built dominantly for the legitimate purpose of holding enemy fighters captured ON the battlefield), and assuming arguendo that there is not such a facility in the country where the person was captured (very likely to be true, right?), as an operational matter it's easy to see the military thinking it would be easiest and most secure to hold the person at that facility.


Your separate point about figuring out illicit motive going forward might be right. I don't mean to address it here. But your first point in the post is, essentially, that there really aren't any legitimate reasons -- either in this specific case or as a general matter. And as I say, I think that's pretty obviously wrong.

Posted by: Trevor | May 21, 2010 5:15:30 PM

Trevor -- Your hypothetical is very helpful. Assuming that no similar facility exists in the country of detention, the Government presumably has three choices, right? (1) Detain at Bagram. (2) Detain at Guantanamo. (3) Detain within the U.S. Two of those choices are out-of-theater, and would not involve moving an out-of-theater detainee _to_ the battlefield. One would. Even taking the U.S. option off the board, is geographic proximity enough to explain why, in a choice between Bagram and Guantanamo, the Government chose Bagram? If so, doesn't that suggest that the obstacles arising from holding a detainee "in theater" aren't nearly as substantial as the Government (and, now, the D.C. Circuit) would have us believe?

Posted by: Steve Vladeck | May 21, 2010 5:21:40 PM

In this case, one of the petitioners was captured in Thailand, then apparently shipped to some black site and from there to Bagram. With that, plus the knowledge that the U.S. has employed other "black sites" all over the globe, I find it hard to believe that these people ended up in Afghanistan because it was the "nearest, secure U.S. detention facility." Maybe the government did not think it was necessary to evade legal scrutiny in the form of habeas corpus, but they were clearly trying to avoid scrutiny.

Given that we've had "enhanced interrogations," destruction of evidence and prisoners hidden from the Red Cross, I am no longer wiling to presume good motives when the government does anything suspicious with accused terrorists.

Posted by: Jim | May 21, 2010 5:21:58 PM

Thanks Steve. I think you're now making two new arguments. The first questions why the government would hold someone in one non-U.S. location where habeas was not believed to run (Bagram) rather than another non-U.S. location where habeas was also not believed to run, and which was well away from the battlefield (GTMO). That's a longer conversation and one I won't join here, in part because neither of us is expert in all the operational reasons that drive military decisions. I think it suffices for our purposes just to note that because we're talking about two options that, at the time, were BOTH thought to be beyond the courts' habeas jurisdiction, it seems fair to say that whatever drove the decision, it probably wasn't an attempt to evade habeas.

Your second argument questions the seriousness of the government's practicality-based objection to allowing habeas to run to Bagram. That's another matter, and also not one I'll touch here.

I intervened for the limited purpose of questioning your claim that there really could be no legitimate reasons to move someone from outside the theater to Bagram. Without meaning to say anything about what actually drove the decisions with respect to these particular detentions, I thought it was worth observing that, in principle, there are plenty of legitimate operationally-related reasons. I think we now agree on that point.

Posted by: Trevor | May 21, 2010 5:40:34 PM

Isn't the government's original motive beside the point? The point is that these men were picked up far from any battlefield and have been detained without charges for 8 years. They are not prisoners of war, so don't they have habeas corpus rights? The location of their detention should be immaterial; what should matter is where they were picked up. It is perverse, or so it seems to me, that the court has ruled that because they were shipped to Bagram, they have different rights than if they were sent to Gitmo. Is the court saying that they are prisoners of war because they are in Bagram, but would not be if they were brought to Gitmo? What if the government decides to transfer them to Gitmo next month? Do they acquire habeas rights then? The only logic I can see here is that the court decided that these men are prisoners of war because the government put them in Bagram, which in in a war zone. In which case, the court is effectively saying that the detainees are prisoners of war because the government says they are, regardless of the circumstances of their capture. Which seems contrary to the rule of law to me.

Posted by: Brian | May 21, 2010 11:30:19 PM

Does motive of the arresting authority enter into the question of a suspect's habeas rights?
Just a question of legal procedure. If a cop arrests his neighbor with a shaky accusation in order to intimidate him (let's say they had an argument about property lines that morning), doesn't the "suspect" still have all his rights?

If the "police" authority that arrests does so without warrant, without reasonable suspicion, without clear legal precedent of any kind, then it becomes an illegal, arbitrary arrest by an abusive authority. If the prisoner is abused, that's another claim that can be made by the defendant against the prosecution (validity of evidence as well as assault).


But there are always legal loop holes. Aren't they all permitted, regardless of motive, to both the defense and the prosecution?

What's so interesting about precedent is how it can be reinterpreted and its conditions redrawn, if the appellate court finds that the plaintiff's claim is sufficiently unique not to fall under previous decisions (of course, in the case of the US supreme, they can just decide to hear it anyway, if they're in the mood).

So unless the motive counts, and I'm sorry to make a personal attack here, anyone who uses the motive argument to judge the law is referring to political matters more than legal ones. Whosoever would assume the government has malicious motive is casting doubt upon the honesty of the prosecutors (and a judge is in no position to do so without evidence of wrong doing).
Conversely, whosoever gives a prosecutor "benefit of the doubt" in procedural matters, without evidence and based on hypothetical suppositions, is arguing for an authoritarian police state. The hypotheses are worth exploring as a matter of practice but you can't call fantasy scenarios, cherry picked, pragmatism. Tout court.

A good writer, instead of mediocre lawyers, could yield some imaginative scenarios that would show up the lawyers' imaginations so badly, it would be clear we shouldn't put faith in the limited scenarios offered by lawyers, to explain much of anything. What you don't know, you just DON'T KNOW. Just don't try to INSERT a story that would "make everything O.K.". YOU DON"T KNOW. No court cares to hear an unfounded, unsupported hypothesis of how three fifths of the crime were committed, thus explaining why the evidence for the remaining two fifths seems so very shaky but "it's really not, if you use your imagination". Unless you want to offer evidence of "character" which should fly with the more corrupt judges and the more psychologically ignorant juries.

In the US, the incredibly naive authoritarian position has a lot of credibility with the ignorant public. I'm bemused at how judges, so often accused of activism and elitism, like to steer clear of this very ambiguous and very ripe-for-judicial-activism question, on the left and the right. It may be they are not at all activist or it may be that they're just intellectually lazy.

Posted by: dasjuror | May 22, 2010 2:25:05 AM

FYI, your link to Maqaleh actually links to Boumediene.

Maqaleh can be found here (PDF)

Posted by: Disputo | May 24, 2010 12:06:56 AM

I wouldn't be so sure that they weren't transferred to Guantanamo to avoid habeas. While it is true that the government's position at the time was that Guantanamo was beyond the reach of habeas, does not mean that the government didn't anticipate the possibility of a decision like Boumedienne and make certain detention decisions accordingly.

Posted by: dave | May 24, 2010 4:56:10 PM

I would take a different viewpoint as the true question really boils down to what the prisoner is defined as: enemy combatant (war) or criminal (civil). The location of capture or detention is actually irrelevant until that is figured out. I believe that point has been missed.

If the person is an enemy combatant then they have certain rights agreed to by the US per the geneva conventions. If the person is a criminal, you can call them terrorists, the constitution prevails in terms of civil liberties.

Now in cases of off-battleground, non-uniform combatant/criminal I think the government should have the burden of proof for the denial of civil rights in order to designate them at a combatant.

This is of course leaving out other arguments such as: The war being legally declared by Congress (therefore making it a war and being able to designate someone as a combatant) or those that can't be defined as combatant being held in other statuses that are not authorized by law and the Constitution.

I find it odd that the legal cases and most arguments made about jurisdictional prudence seems to always skate over the first litmus test which is what law system truly applies to the person in question.

Posted by: David | May 25, 2010 7:34:18 PM

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