Al Maqaleh v. Gates (Amicus Brief)

In Brief – The Brennan Center for Justice and co-counsel submitted an amicus brief on behalf of retired military officers, urging the D.C. Circuit Court of Appeals to affirm the District Court’s decision to grant habeas review to three non-Afghan citizens apprehended outside Afghanistan and detained at Bagram Theater Internment Facility.

Argument Presented – The retired military officers argue that the government has not sufficiently shown that providing habeas proceedings to the petitioners would compromise the U.S. military mission in Afghanistan.

Procedural History – The District Court issued its decision on April 2, 2009. The government gave notice of its intention to appeal the decision in July 2009, and submitted its brief on September 14, 2009 in the Circuit Court. The Brennan Center and co-counsel submitted their amicus brief to the Circuit Court on November 6, 2009. Oral Arguments were in January 2010.

In Detail – On November 6, 2009, the Brennan Center filed a brief amicus curiae in Al Maqaleh v. Gates, currently before the U.S. Court of Appeals for the District of Columbia. The plaintiffs in the case are three non-Afghan citizens who were apprehended outside Afghanistan and then transferred to that country for detention at the Bagram Theater Internment Facility. They filed petitions for writs of habeas corpus, challenging the legality of their detention. In response, first the Bush Administration and then the Obama Administration argued that these detainees, as non-citizens detained outside the United States, are not entitled to challenge their detention in U.S. courts. The District Court for the District of Columbia agreed with the plaintiffs, finding that U.S. courts have jurisdiction to hear their claims, and the government appealed.

The plaintiffs rely on the analysis in Boumediene v. Bush, in which the Supreme Court held that detainees at Guantánamo Bay, Cuba have a constitutional right to habeas corpus despite their status as non-citizens and their extraterritorial location. That case provided courts with a road map for determining when a constitutional right extends extraterritorially, creating a balancing test that requires courts to weigh “at least three factors.”

The Brennan Center partnered with Jenner & Block to file an amicus brief on behalf of a group of prominent retired military officers. The brief addresses one of the three factors identified by the Boumediene court: an assessment of “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” In this case, as in Boumediene, the government argued that providing habeas hearings to the detainees would pose insurmountable practical obstacles.

The brief rebuts the government’s position that granting habeas review at Bagram would compromise the military mission. It shows, instead, that the U.S. military often engages in practices, when performing tasks unrelated to habeas proceedings at Bagram, that are similar to the practices that the government claims would be overly burdensome in the habeas context.

Paul M. Smith, Nicolas o. Stephanopoulos, Eric R. Haren, and James C. Cox of Jenner & Block LLP are co-counsel with Brennan Center on the brief.