Foreign Policy Blogs

The Bagram Decision

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.

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Comments (7)

  1. Dan Friday - 28 / 05 / 2010 Reply
    It doesn't seem to me that the Maqaleh court utterly rejects the idea that there is value in the rule of law - it just seems to reject the notion that detainees can bring cases in U.S. courts because we don't assert complete sovereignty over Bagram. I wonder if the U.S. military would submit to the jurisdiction of an Afghan court if the detainees sought review there.
  2. Rob Grace Friday - 28 / 05 / 2010 Reply
    You actually have it a little backwards. The Maqaleh court weighed three factors (starting on p 19 of the decision): citizenship of the detainees, "the nature of the sites where apprehension and then detention took place," and "practical obstacles." On the first factor, citizenship, the court determined that the Maqaleh situation was no different than the Boumediene situation, which would support the argument for the right of the writ. On the second factor (the one you are talking about), the court did conclude that the U.S. doesn't have de facto sovereignty over Bagram which "weighs in favor of the United States and against the petitioners" but - and this is the important part - "it is not determinative." Thus, the decision hinges on the third factor, the "practical obstacles," and here they note that Afghanistan is a theater of war, they incorporate the Eisentrager quote I referenced above, and they conclude that this third factor "weighs overwhelmingly in favor of the position of the United States." The "theater of war" issue, not the "de facto sovereignty" issue, is what seals the deal.
  3. Dan Friday - 28 / 05 / 2010 Reply
    I was just focusing on that one factor because I thought it was relevant to the argument you and Bahar were making (what do you think, by the way - does the court's exploration of this factor imply some role for Afghan law?). I didn't claim it was solely determinative, but it's surely relevant. I don't think it's a fair reading to say the third factor is the sole determinant just because the second factor isn't. If the "theater of war" issue is itself determinative, why bother talking about the first two factors? They had a situation in which they thought "two out of three" of the factors weighed against habeus jurisdiction. So the theater of war factor "seals the deal" only in combination with the "de facto jurisdiction" issue. The court says the third factor wins "particularly when considered along with the second factor." I'll admit the court isn't entirely clear on this point, and seems much more moved by the third than the second factor, but it would subvert Boumediene to read Maqaleh as holding that all battlefield/theater-of-war detainees are now always automatically to be denied habeus in U.S. courts. Also, the first factor is not just citizenship (which on its own would presumably weigh against the detainees), but citizenship AND the adequacy of the process through which their status was determined.
  4. Rob Grace Friday - 28 / 05 / 2010 Reply
    Perhaps we're actually on the same page here. I didn't mean to insinuate that the third factor is the sole determinant. I was merely noting that the court evaluated the three factors together. My interpretation of your first comment was that you were asserting that the second factor was the sole determinant. Based on your second comment, it seems that that's not what you intended. So it seems that both of us incorrectly thought the other was stating that one factor alone was the sole determinant. And, of course, all three factors are relevant because, as you note, these were the three factors considered by the Boumediene court. What's interesting about this is that it leaves other potential scenarios legally ambiguous. For example, if we have a prison over which the U.S. does not have sovereignty (like Bagram) but that is not in a war zone (unlike Bagram), we might get a different ruling. The same holds true if we have a prison over which the U.S. does have sovereignty (unlike Bagram) but is in a war zone (like Bagram). However, my original criticism of the ruling was about the third factor. Why does the Maqaleh court conclude that the concerns of the Eisentrager court are "more relevant to the situation at Bagram than they were at Landsberg"? Yes, Bagram is in a war zone, but it is specifically a counterinsurgency war zone, in which law has particular strategic benefits, as outlined by the Field Manual and by the McChrystal arguments that Pearlstein notes. The fact that Bagram is in a counterinsurgency war zone should actually weigh against the United States. To answer your original question, reports about the handover of Bagram to Afghan control indicate that after the handover, detainees will have access to Aghan courts... ...though his won't happen until next year, if it actually happens.


  1. […] Tantalized? Read the whole thing here. […]

  2. […] preaches the importance of the rule of law, which is apparently not a fundamental U.S. concern (see my earlier post on Bagram).  But also, the Field Manual’s proposed “troop to population” ratio has been […]

  3. […] their detention.  And U.S. courts have gone along with it.  The D.C. Circuit Court of Appeals, ruling on this issue earlier this year, quoted the Eisentrager decision of 1950: Such trials would hamper the war effort and bring aid and […]

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