Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo. Notably, the district judge who so ruled -- John Bates -- is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge. In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind

[...]

As Judge Bates noted, the prisoners shipped to Bagram actually have even fewer rights than the Guantanamo detainees did prior to Boudemiene, because at least the latter were given a sham Pentagon review (the CSRT tribunal), whereas the U.S. Government -- under both Bush and Obama -- maintain that Bagram prisoners have no rights of any kind.

In the wake of Judge Bates' ruling that foreign detainees shipped to Bagram at least have the right to a hearing to determine their guilt, what is the Obama DOJ doing?

As I noted below, the two most important questions the Court did not answer are:

(i) Would habeas rights extend to alien detainees held in foreign locations other than GTMO (such as Bagram)?

and

(ii) What is the substantive standard for who may be indefinitely detained?


The Court was not, however, completely silent on these questions; it provided hints about how they might be resolved. In this post and the next, I'll try to identify those hints. Please note: I am not suggesting that the Court issued any holdings, or that the hints are determinative of how the Court will ultimately resolve the questions. They're merely tea leaves, albeit very carefully considered tea leaves that government officials, lower court judges, lawyers, and presidential candidates would be advised to parse carefully.

So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No.

But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.

It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."

More broadly, the Court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the Court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."

In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."

Most importantly, the Court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the Court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." The political branches will not be permitted "to govern without legal constraint" or to "have the power to switch the Constitution on or off at will."

NOTE: In general, and as the above discussion should make clear, Justice Kennedy stresses that the question will in each case be determined by a "functional approach" involving multiple factors and, especially, "practical concerns," rather than by any formalist rules.