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The Writ Stops Here: No Habeas for Prisoners Held by U.S. Forces in Afghanistan

Faiza Patel, Brennan Center Director of Planning and Counsel, discusses Maqaleh v. Gates in the June 3, 2010 issue of American Society of International Law Insights.

Published: June 22, 2010

“The Writ Stops Here: No Habeas for Prisoners Held by U.S. Forces in Afghanistan”
by Faiza Patel
American Society of International Law Insight
Volume 14, Issue 13

Excerpts from the article:

“One of the most fundamental legal issues to emerge since 9/11 is whether U.S. courts have the authority to review the President’s decision to detain indefinitely individuals captured as part of the “war on terror.” The question generated a slew of U.S. Supreme Court decisions culminating in Boumediene v. Bush, which held that detainees at the Guantánamo Bay, Cuba, Naval Facility have a constitutional right to challenge their detention in habeas proceedings in U.S. courts.”

“In the wake of Boumediene, the question remained whether individuals detained by the United States in other parts of the world were also entitled to habeas review.”

“The issue is particularly significant because the Obama Administration is reportedly considering using Bagram for military detention of foreign terrorism suspects given that it no longer has a viable facility at Guantánamo and faces political resistance and legal obstacles to such detention in the United States itself.”

“The court [DC Circuit] concluded that “under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theater of war in a territory under neither the de facto nor the de jure sovereignty of the United States and within the territory of another de jure sovereign.”