District Court holds that detainees brought from other countries to Afghanistan can seek U.S. habeas review.

• Author: Crook, John R.

The United States reportedly holds more than six hundred detainees, mainly Afghans suspected of having been Taliban fighters, in a Spartan and makeshift detention facility at Bagram Air Base, about 30 miles north of Kabul, Afghanistan. (1)

In Apri12009, U.S. District Court Judge John Bates ruled that three non-Afghan detainees from Yemen and Pakistan held for more than six years at Bagram are entitled to contest their detentions through habeas corpus actions in U.S. courts. (2) The U.S. government opposed habeas corpus relief, contending that circumstances at Bagram differed fundamentally from those identified by the Supreme Court in allowing habeas relief for Guantanamo Bay detainees in Boumediene v. Bush. (3) In the government's view, the court had no jurisdiction over petitions by aliens held in a war zone in a foreign country where the United States did not enjoy de facto or de jute sovereign rights. The district court disagreed, framing the issue as follows:

The issue at the heart of these cases is whether these petitioners may, in the wake of Boumediene v. Bush, 128 S.Ct. 2229 (2008), invoke the Suspension Clause of the Constitution, Art I. [section] 9 cl. 2. If so, then section 7(a) of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600, is unconstitutional as applied to these petitioners and they are entitled to seek the protection of the writ of habeas corpus. But if not, then these petitions must be dismissed as respondents have urged. (4) In the district court's view, the situation before it was like that confronting the U.S. Supreme Court in Boumediene.

The specific constitutional question posed by these four cases is whether petitioners--foreign nationals designated as enemy combatants, captured and held abroad at Bagram--are entitled to invoke the protections of the writ of habeas corpus in U.S. courts. This is essentially the same "specific question" the Supreme Court faced in Boumediene: "whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation's security, may assert the privilege of the writ and seek its protections." And that question involves at its core the issue of the reach of the Suspension Clause, j ust as it did in Boumediene. The facts may vary from petitioner to petitioner, but the only material difference between the petitioners in Boumediene and the petitioners here is where they are held--at the military base at...