Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
is authorized to detain [a properly designated enemy belligerent] for the duration of the conflict in Afghanistan, even if [he] poses no threat of returning to the field of battle."[1] However, this conclusion has not been endorsed by every district court judge who has considered the issue.[2]
Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009)
In April 2009, District Court Judge John D. Bates found in the case of Al Maqaleh v. Gates that the constitutional writ of habeas may extend to non-Afghan detainees currently held by the United States at the Bagram Theater Internment Facility in Afghanistan, when those detainees had been captured outside of Afghanistan but were transferred to Bagram for long-term detention as enemy combatants. Judge Bates held that the circumstances surrounding the detention of the petitioners in Al Maqaleh were "virtually identical to the detainees in Boumediene—they are [non-U.S.] citizens who were ... apprehended in foreign lands far from the United States and brought to yet another country for detention."[3] Applying the factors discussed in Boumediene as being relevant to a determination of the extraterritorial scope of the writ of habeas corpus, Judge Bates concluded that the writ extended to three of the four petitioners at issue in Al Maqaleh, who were not Afghan citizens. The constitutional writ was not found to extend to a fourth petitioner who was an Afghan citizen, however, because review of his habeas petition could potentially cause friction with the Afghan government.[4] This ruling has been appealed. Presuming that the ruling is upheld, it could have significant ramifications for U.S. detention policy, as at least some foreign detainees held outside the United States or Guantanamo could seek review of their detention by a U.S. court. On September 14, 2009, the DOD announced modifications to the administrative process used to review the status of aliens held at Bagram, which would afford detainees greater procedural rights. The modified process does not contemplate judicial review of administrative determinations regarding the detention of persons at Bagram.[5]
Criminal Cases
Although numerous cases have been brought in federal civilian court involving persons who allegedly engaged in terrorist activity, relatively few involve persons who were captured abroad by U.S. forces during operations against either Al Qaeda or the Taliban, and only one case has been tried in civilian court involving a person involved in the September 11, 2001, terrorist attacks. This section discusses notable rulings made in criminal cases involving Zacharias Moussaoui, who was tried and convicted for his role in the September 11, 2001, terrorist attacks, but was never officially designated as an "enemy combatant"; John Walker Lindh, thus far the
- ↑ Al-Adahi, 2010 WL 811280, at *4.
- ↑ See Basardh v. Obama, 612 F.Supp.2d 30, 34 (D.D.C. 2009)(Huvelle, J.) ("the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle").
- ↑ Al Maqaleh, 604 F. Supp. 2d at 209 (D.D.C. 2009).
- ↑ Id. at 229-230.
- ↑ Under this new system, detainees would undergo a case review within 60 days of incarceration, with periodic review occurring roughly every six months thereafter. Further, U.S. military members shall act as personal representatives to assist detainees during the review process. Letter from Phillip Carter, Dep. Asst. Sec. Defense for Detainee Policy, to Sen. Carl Levin, Chairman of Sen. Armed Serv. Comm., July 14, 2009, available at http://www.scotusblog.com/wp/ wp-content/uploads/2009/09/US-Bagram-brief-9-14-09.pdf; Gerry J. Gilmore, "Bagram Detention Facility to Implement Case Review Panels," American Forces Press Service, September 14, 2009, http://www.defenselink.mil/ news/newsarticle.aspx?id=55831.
Congressional Research Service12
