Shadowing the Flag: Extending the Habeas Writ Beyond Guantánamo

Abstract:     
The writ of habeas corpus activates the courts’ duty to check the arbitrary or unlawful restraints by the executive on individual liberty. In times of war, the courts have been compelled to determine whether the writ is available to individuals held by the executive outside of the territorial boundaries of the United States. The Supreme Court in Johnson v. Eisentrager, in which World War II detainees were held in Germany, answered in the negative, while in Boumediene v. Bush, involving post-9 11 detainees housed in Guantánamo, reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals for the District of Columbia Circuit in al Maqaleh v. Gates decided that three detainees held in Bagram Air Base, Afghanistan are not entitled to the constitutional habeas privilege.

The purpose of this Article is to explain why the D.C. Circuit got it wrong. Part I provides an overview of the facts and relevant law that formed the basis for the decision. Part II will show that the court misapplied the basic factors set forth initially by the Court in Eisentrager and later clarified by it in Boumediene. Part III will contain a proposed framework that reorients and reframes these factors in order to make habeas jurisdiction analyses more workable and consistent with the historical justifications for the writ, separation of powers considerations, and governing case law. Part IV applies this framework to the Bagram petitions and in doing so highlights the problematics of the D.C. Circuit’s decision. In short, under both existing standards and the suggested new way of looking at questions of wartime habeas jurisdiction, I posit that the petitions should not have been dismissed.

If left to stand, al Maqaleh will not only cast the detainees into an indefinite legal abyss, but will place the executive beyond the courts’ traditional constitutional checking duties, precisely when the wartime executive is most tempted to act outside of established law – that is, when judicial review is most critically needed.

Number of Pages in PDF File: 41

Keywords: habeas corpus, jurisdiction, extraterritoriality, judicial review, Executive authority, Bagram

Accepted Paper Series