Al Maqaleh and the diminishing reach of Habeas Corpus

In 2008, the U.S. Supreme Court issued a landmark judgment in Boumediene v. Bush that extended the writ of habeas corpus to detainees at Guantanamo Bay. Boumediene set forth a three-factor test to determine if writ jurisdiction extends to detainees abroad: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites of where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Following Boumediene, the D.C. Circuit has declined to extend the writ to detainees at other U.S.-controlled facilities, including Bagram Air Base in Afghanistan. Al Maqaleh was the most prominent Bagram-related litigation. At issue was whether three non-Afghan detainees, who alleged they were captured outside Afghanistan and extraordinarily rendered to face indefinite detention at Bagram, could avail of writ jurisdiction. Al Maqaleh turned on Boumediene’s three-factor test, which the D.C. Circuit misconstrued in three significant ways. First, it neglected the site of apprehension and construed the site of detention too formalistically, requiring de facto U.S. sovereignty as a precondition for writ jurisdiction. Second, it misread the practical obstacles factor as a limit on justiciability, which improperly imports the Political Question Doctrine into this jurisdictional analysis. Third, it mistakenly dismissed petitioners’ claim that the Executive manipulated the site of detention – by choosing to hold petitioners at Bagram rather than at Guantanamo Bay – to avoid writ jurisdiction. For these reasons, I argue that Al Maqaleh should be overturned. It has unconstitutionally altered Boumediene’s test for the extraterritorial application of habeas corpus by empowering the Executive, not the courts, to determine how far and to whom the writ will reach.