[W]e conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (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 where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.

In ruling for the extension of the writ to Guantanamo, the Supreme Court expressly noted that "[s]imilar threats are not apparent here." 128 S. Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram. The Supreme Court expressly stated in Boumediene that at Guantanamo, "[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be 'impractical or anomalous' would have more weight." Id. at 2261-62 (emphasis added). Indeed, the Supreme Court supported this proposition with reference to the separate opinion of Justice Harlan in Reid, where the Justice expressed his doubts that "every provision of the Constitution must always be deemed automatically applicable to United States citizens in every part of the world." See 354 U.S. at 74 (Harlan, J., concurring in the result). We therefore conclude 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 de jure sovereignty of the United States and within the territory of another de jure sovereign.

We are supported in this conclusion by the rationale of Eisentrager, which was not only not overruled, but reinforced by the language and reasoning just referenced from Boumediene. As we referenced in the background discussion of this opinion, we set forth more fully now concerns expressed by the Supreme Court in reaching its decision in Eisentrager:

Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Eisentrager, 339 U.S. at 779. Those factors are more relevant to the situation at Bagram than they were at Landsberg. While it is true, as the Supreme Court noted in Boumediene, that the United States forces in Germany in 1950 faced the possibility of unrest and guerilla warfare, operations in the European theater had ended with the surrender of Germany and Italy years earlier. Bagram remains in a theater of war. We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in  Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.