Al Maqaleh Update

By Larkin Reynolds
Tuesday, February 15, 2011, 5:29 PM

As Josh Gerstein reports over at Politico, U.S. District Judge John D. Bates today granted the Al Maqaleh petitioners' motion for leave to file amended habeas petitions.  Al Maqaleh concerns the habeas petitions of detainees held at the Bagram Theater Internment Facility in Afghanistan. In April 2009, Judge Bates denied a government motion to dismiss as to three of the petitioners, holding that, under Boumediene, the detainees were entitled to judicial review of their detention. The D.C. Circuit later reversed that decision, but left open a tiny hole regarding the detainees' argument "that the United States chose the place of detention" and might be able "to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones."  The D.C. Circuit wrote that "that is not what happened here," and determined that the resolution of that issue could "await a case in which the claim is a reality rather than a speculation."  On a motion for rehearing in which the petitioners argued that the D.C. Circuit was mistaken on just that point, the panel denied the rehearing motion but said the denial was without prejudice to petitioners' "ability to present this evidence to the district court in the first instance."

The petitioners, who filed and today won their motion for leave to amend their petitions in Judge Bates's court, will now be able to present evidence on that very issue. They claim that the executive branch has acted to evade court review over the petitioners and other non-Afghans held at Bagram. In today's order Judge Bates acknowledges that facts on the ground are "arguably evolving" even still, but he wants to explore the nature of these facts more fully. 

Today's result makes it worth taking a moment to review the documents that informed Judge Bates's decision; after all, the documents allege facts that--again, while subject to additional changes--are pretty likely to reappear in the motion-to-dismiss briefing through which Judge Bates said he intends to address the jurisdictional question.

Specifically, on December 20, 2010, the government filed a declaration by Deputy Assistant Secretary of Defense for Detainee Policy, William K. Lietzau.  The petitioners wrote, in a filing from February 3, that while the December declaration differed from the government's prior declaration concerning detention operations in Afghanistan, the new version "actually bolsters [the petitioners'] arguments." The filing goes on:

The government has now provided [confirmation that it plans to maintain indefinite control over Petitioners and other non-Afghans at Bagram]. According to Mr. Lietzau, the U.S. government will “construct at least one additional detainee housing unit adjacent to the DFIP [the Detention Facility in Parwan] during the next year” that “will enable U.S. forces to continue to conduct detention operations on a limited basis during the ongoing surge in military operations in Afghanistan and pending the transfer of non-Afghan detainees to their home countries or to third countries.”

The emphasis in the last phrase is the petitioners' own, and actually illustrates what will likely be the crux of the dispute after the detainees file their amended petitions. They emphasize that the "conditional nature" of the government's approach to relinquishing control over the detainees necessarily implies that "[w]hether, when and on what terms such transfers might be attempted remains entirely within the U.S. government's exclusive discretion." They also write that the declaration makes clear that "the U.S. government intends to imprison them indefinitely in its custody, without any form of independent review, judicial or otherwise."

The government's pleadings, including the declaration in question, seem to emphasize the eventual transfer of the detainees to the Government of Afghanistan is moving along as planned and that it will not be permanent.  For example, in the December 2010 Lietzau declaration, the government writes:

In order to expedite transition of the DFIP to the GIRoA for purposes of consolidating insurgents detained for "crimes against the security ofthe state," [Combined Joint Interagency Task Force] 435 intends to construct at least one additional detainee housing unit adjacent to the DFIP during the next year. This additional detention capacity will enable U.S. forces to continue to conduct detention operations on a limited basis during the ongoing surge in military operations in Afghanistan and pending the transfer of non-Afghan detainees to their home countries or to third countries. U.S. Forces will eventually transition this additional detention capacity to the GIRoA, consistent with the conditions-based approach discussed above.

In today's order, Judge Bates was reserved in his assessment of the facts petitioners urge are new, writing that he had "some doubts about the consequence of the additional evidence" under the relevant precedents. But ultimately, he wrote, the issue would be "better explored  through full consideration of the evidence and the parties' positions."