Guest Commentary

Carlos Ramos-Mrosovsky, Baker & Hostetler LLP*

An effective amicus brief on behalf of those with first-hand experience of the issues at stake can be a powerful asset to the judiciary.  The United States Court of Appeals for the D.C. Circuit decision last week that persons designated as unlawful enemy combatants and detained by the U.S. military at Bagram Air Base in Afghanistan cannot seek habeas review of their detentions demonstrates this point very well.  

 The result in Maqaleh v. Gates was not a foregone conclusion.  The controlling precedent from the Supreme Court was Boumediene v. Bush, 128 S. Ct. 2229 (2008), which held that detainees at Guantanamo Bay could bring habeas petitions.  Boumediene announced that three factors should be considered in determining whether habeas will be available to detainees held as unlawful enemy combatants outside of the United States.  These factors are:  (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 detention took place, and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ of habeas corpus.  See Boumediene, 128 S. Ct. at 2259.

Looking to Boumediene, a U.S. district court initially concluded, in effect, that Bagram and Guantanamo were not that different, and that Bagram detainees could bring the same kinds of habeas claims as Guantanamo detainees.  The D.C. Circuit disagreed.  Emphasizing the third Boumediene factor, a unanimous three-judge panel explained that the “practical obstacles inherent in” allowing Bagram detainees to bring habeas claims were simply too great.  Maqaleh, Slip Op. at 22.  In an opinion by Chief Judge Sentelle, a unanimous panel emphasized that crucially, and unlike Guantanamo, Bagram and “indeed, the entire nation of Afghanistan, remains a theater of war.”  Id.

These “practical obstacles” that the D.C. Circuit considered so significant were exactly the subject of an amicus brief submitted by veterans’ organizations (and individual veterans) representing members of the U.S. military’s Special Operations community who have served in every U.S. war since World War II.  These amici offered a perspective based on matchless experience in the very kinds of intense and small-scale operations that frequently lead to the capture of unlawful enemy combatants.  

Amici put into concrete terms exactly how collecting the kinds of admissible evidence needed for the government to prevail in a habeas proceeding would imperil the type of military operations that allows U.S. forces to capture Al Qaeda and Taliban leaders in the first place.  For example, lingering at a target site to collect evidence would be a very bad idea in a combat situation.  While police need not worry about every criminal within a fifty mile radius converging on the site of a drug bust, this is exactly the danger which makes rapid extraction of a Special Operations team that has captured a high-level terrorist in the field absolutely essential.  Among other difficulties, amici also highlighted the almost insuperable difficulties of getting local allies to adhere to U.S. evidentiary standards when capturing Al Qaeda and Taliban fighters.  These kinds of insights had not been available to the district court in Maqaleh and were not a focus of the government’s brief.  Judging by the D.C. Circuit’s emphasis on the practical obstacles, amici were right on target and probably influenced the court’s resolution of the appeal.  

The decision in Maqaleh applies directly only to detainees held in Afghanistan, and the Bagram detainees may yet seek rehearing or even certiorari from the Supreme Court.  At least for now, Maqaleh significantly reduces the likelihood that American military personnel will be endangered – or their efforts rendered less effective – as a consequence of judicial decisions thousands of miles from the battlefield.

*Carlos Ramos-Mrosovsky is an attorney at Baker & Hostetler LLP.  He represented amici including the Special Forces Association and the U.S. Army Ranger Association before the United States Court of Appeals for the D.C. Circuit in Maqaleh v. Gates.