Last week the D.C. Circuit Court of Appeals ruled in Maqaleh v. Gates that detainees held by the U.S. in Afghanistan cannot challenge their detention in U.S. courts. There are many jurisdictional issues at play, some of which stem from the Supreme Court’s Eisentrager decision in 1950, in which the court ruled that German nationals held in a U.S.-administered German prison did not have habeus rights. The Eisentrager court offered an additional rationale, which the D.C. court quoted in its decision:
Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.
Deborah Pearlstein at Opinio Juris (and at Balkinization) seized on this element of the argument, correctly noting:
Yet particularly in the counterinsurgency context in which the U.S. is now fighting, it seems an odd – and overstated – position for the court to take. Indeed, as the Commander of NATO forces in Afghanistan, U.S. General McChrystal, explained in his pivotal strategy report last year, “the Afghan people see U.S. detention operations as secretive and lacking in due process.” Because detention operations could thus become “a strategic liability,” the United States faces a “critical” need “to conduct all detention operations in this country in accordance with international and national law.” McChrystal went on to recommend the turnover of detention operations to the Afghans, once they developed the capacity to sustain such operations lawfully and effectively. There is nothing in his report that would support the conclusion the Maqaleh court reached about the impact of judicial review on “the enemy,” and much in it that might support the view that habeas in the limited context presented here – where detainees have been shipped from a country at peace with the United States into a country where the United States is at war – might be of some strategic benefit with “wavering neutrals” pending handover to the Afghan government.
In counterinsurgency, the target is not the enemy, but rather the hearts and minds of the civilian population. Law is one of the most important weapons at the counterinsurgent’s disposal. This is exactly the argument made by Michael Bahar, with whom I studied at NYU, in an article last year in the University of Pennsylvania Journal of Constitutional Law. Bahar notes the importance of law as outlined in the U.S. Army/Marine Corps Counterinsurgency Field Manual and wonders at the strange fact that:
…no recent Supreme Court or appellate court decision has weighed the strategic value and function of law in its constitutional calculus. No law review article, federal opinion, or even federal court brief has yet to even mention the Field Manual—despite myriad “strategic” arguments leveled against the application of, and adherence to, law in the global war on terror.
Bahar’s article outlines a strategic rationale for law that coincides with the arguments Pearlstein notes above. With this Bagram decision, though, U.S. courts have yet to do the same.
