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Eisentrager Survives, For Now

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Today's decision of the D.C. Circuit in the Afghanistan habeas case, Al Maqaleh v. Gates,  is a good example of the difficulty faced by a lower court when a higher court fails to truly follow its own precedent but also does not overrule it. The earlier case is still a precedent, but it does not mean what it seems to say and what most people understood it to mean, because the later opinion came to a different result on facts that should have come within the earlier precedent.

Justice Robert Jackson's classic opinion in Johnson v. Eisentrager, 339 U.S. 763 (1950) was long understood to stand for the proposition that an alien enemy captured and detained outside the U.S. had no constitutional right to have his detention reviewed by a federal civilian court on habeas corpus. But Boumediene v. Bush, 128 S. Ct. 2229 (2008) did find such a right in cases coming within those parameters, without overruling Eisentrager. So where does the Eisentrager precedent end and the Boumediene precedent begin?

The D.C. Circuit rejected positions of both parties that it characterized as "extreme." The government said Boumediene was limited to Guantanamo Bay, and the petitioners said it extended to every place under U.S. Government control.

If the simple answers are wrong, what do we have? Yes, the dreaded three-factor test:

[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.
Boumediene, 128 S. Ct., at 2259.

So how about Afghanistan in 2010? From today's decision:

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.

Note the phrase "aid and comfort to the enemy" in the D.C. Circuit's quote from Eisentrager. Justice Jackson, I think, chose that phrase quite deliberately. It echoes the Constitution's definition of treason in Article III ยง3.

I sense that the D.C. Circuit is sending a message to the Supreme Court here. If you reverse us again, they seem to be saying, you will have to overrule outright a landmark opinion by one of the greatest Justices in your history. And, by the way, that would be treason.

The right answer is so much simpler, as explained in our Boumediene brief. The Constitution says, "The privilege of the writ of habeas corpus shall not be suspended...." Who is the holder of the privilege? Citizens of the United States and others with a substantial connection to the country, such as permanent resident aliens. Our government's treatment of persons with no prior connection or allegiance to our country is a matter for international diplomacy, not domestic litigation.

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GTMO is easily distinguishable, if SCOTUS is so inclined. Cuba's sovereignty is but in name alone.

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