The Boumediene Illusion: The Unsettled Role of Habeas Corpus Abroad in the War on Terror
Volume 84, No. 2, Winter 2012
By Ryan Firestone

In November 2003, Houcine Al-Najar received a letter at his home in Switzerland, mailed by the International Committee of the Red Cross. The letter announced that Houcine’s brother, Redha, was a prisoner at the Bagram Theater Internment Facility, on the United States Bagram Airbase in Afghanistan. Eighteen months had passed without word of Redha’s whereabouts—his wife and children had last seen him as he was taken from their home in Karachi, Pakistan at gunpoint by masked men. The Al-Najar family is one of an untold number that have received similar letters forwarded by the Red Cross—each of them relating the detention of missing family members as part of the United States’ efforts to defeat terrorism. Many of these letters originated in Bagram, others from Guantanamo Bay, Cuba.

Redha Al-Najar eventually became one of the petitioners in Al Maqaleh v. Gates, requesting habeas corpus relief and prevailing at the district court level. The Court of Appeals for the D.C. Circuit reversed, however, ruling that it did not possess jurisdiction to issue the writ on behalf of Al-Najar and his fellow petitioners. This ruling was based on an application of the factors relevant to the extent of the writ announced in Boumediene v. Bush, which held that detainees at Guantanamo Bay could petition for habeas relief under the Suspension Clause of the Constitution. The court of appeals distinguished the Bagram petitioners from the Guantanamo petitioners primarily based on the former’s incarceration in a nation considered to be an active war zone. This was despite the fact that the three petitioners before the court of appeals all claimed to have been captured outside that war zone, in peaceful civilian settings, only to be transported by the United States into Bagram.

Denial of habeas jurisdiction under these circumstances allows the Executive to profit from obstacles arising from its own decision to transport prisoners. The writ of habeas corpus, however, is not merely a safeguard for personal liberty and individual rights. It is also an indispensable aspect of the separation of powers at the heart of the American system of government, as well as a guarantor of the legitimate exercise of those powers. In order for the writ to so function, it must be insulated from the attempts, well-intentioned or otherwise, of the political branches to manipulate it. The role of habeas corpus in the context of the war on terror involves weighty considerations of separation of powers and national security and has engendered heated debate over the balance to be struck between these competing concerns. This Comment argues that the Supreme Court’s decision in Boumediene, although listing factors appropriate for consideration in determining the extent of the writ’s force, provides inadequate guidance for the application of those factors in future cases. In particular, this lack of guidance undermines the writ’s status as a check on executive power in the amorphous, ill-defined war on terror.

Part II.A briefly chronicles the inception of the war on terror and its global reach, with Part II.A.2 focusing on the Bush administration’s decision to house suspected terrorists and Taliban fighters at Guantanamo Bay, Cuba. Part II.B discusses the constitutional dimensions of habeas corpus in the American system of government. In marking out these dimensions, Part II.B draws on the substance of the debates on the topic at the Constitutional Convention of 1787 and surveys the pre-Revolutionary English history of the writ, the common touchstone for the Framers. Part II.C reviews several habeas challenges by Guantanamo Bay detainees and the Congressional response to those rulings. This leads into Part II.D, which discusses the Supreme Court’s ruling in Boumediene, a surrebuttal of sorts to Congress’s attempts to deny habeas corpus relief at Guantanamo Bay. Part II.E discusses Al Maqaleh v. Gates, involving the application of Boumediene to detainees held at Bagram Airbase in Afghanistan.

Part III.A discusses how Al Maqaleh was decided contrary to the expectations of both proponents and critics of the Boumediene decision. Part III.B follows with a discussion of the potential for diverging application of the Boumediene factors and how this divergence played out at the district court and circuit court levels in Al Maqaleh. In addressing these concerns, Part III.C contends that the site of detention and apprehension factors should be considered in tandem, so as to prevent the Executive from using geography to thwart the purpose of the writ. Part III.D argues further that the practical obstacles inherent in granting the writ should not be allowed to forestall access to the writ, suggesting instead that such obstacles be considered in determining what form habeas proceedings should assume. Additionally, Part III.E asserts that the length of a detainee’s detention, both potential and realized, should be expressly included as a factor alongside those cataloged in Boumediene. Part III.F then applies the proposed approach to a hypothetical prisoner captured and detained in circumstances roughly paralleling those of the petitioners in Al Maqaleh.

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