Fadi Maqaleh v. Chuck Hagel
407 U.S. App. D.C. 323
D.C. Cir.2013Background
- Petitioners are five non-U.S. citizens detained by U.S. forces at or near Bagram Airfield (Afghanistan); several were prior appellants in Al Maqaleh II.
- Congress authorized detention of enemy combatants under the AUMF; the Military Commissions Act (2006 MCA §7) removed habeas jurisdiction for certain aliens detained abroad.
- This court previously held in Al Maqaleh II that the Suspension Clause did not extend to Bagram and dismissed habeas jurisdiction; petitioners contend changed circumstances warrant revisiting that decision.
- Since Al Maqaleh II the U.S. built new detention facilities, created Detainee Review Boards (DRBs), and transferred Afghan detainees and the DFIP facility to Afghan control in 2013; the Government’s custody of some appellants remains asserted.
- District courts dismissed amended habeas petitions after evaluating Boumediene’s three-factor test (citizenship/status; nature of site; practical obstacles); these dismissals were appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Suspension Clause reaches Bagram (habeas jurisdiction) | Al Maqaleh: Boumediene factors now favor extension to Bagram given changed facts; DRB clearances, longer U.S. presence, and alleged evasion | Gov: Boumediene/Al Maqaleh II control; Bagram is in active theater, U.S. control not permanent, practical obstacles weigh against jurisdiction | Court: Adheres to Al Maqaleh II — Suspension Clause does not run to Bagram; petitions dismissed for lack of jurisdiction |
| Adequacy of status‑determination process (DRBs) | Appellants: DRB procedures still inadequate and worse than CSRTs; denial of counsel testimony and procedural errors | Gov: DRBs are materially more protective than prior UECRBs and closer to habeas-like process; procedures do not change jurisdictional outcome | Court: DRBs are more protective than UECRBs but still do not alter the Boumediene analysis; this prong is weaker for petitioners than in Al Maqaleh II |
| Nature/permanence of U.S. control over Bagram | Appellants: Transfers, continued detention of non‑Afghans, and agreements suggest U.S. intends long‑term control | Gov: U.S. control lacks permanency like Guantanamo; MOU and transfers show movement toward Afghan control; ESPA does not guarantee permanent U.S. bases | Court: Physical situs remains within an active war zone and U.S. control lacks Guantanamo‑level permanence; this factor does not support extension |
| Practical obstacles and foreign‑relations/separation concerns | Appellants: JCIP and U.S. participation show habeas proceedings manageable; Afghan officials’ letter favors jurisdiction | Gov: Active hostilities make judicial oversight disruptive to military operations and foreign relations; courts lack competence in foreign‑policy nuance | Court: Practical obstacles in an active theater and separation‑of‑powers/foreign‑relations concerns weigh overwhelmingly against extending habeas |
| Mootness of Hamidullah’s appeal | Hamidullah: Transfer to Pakistan does not necessarily moot his petition because of possible continuing U.S. control or conditions | Gov: Declares transfer relinquished U.S. custody and control; case moot | Held: Remanded to district court to resolve factual dispute about custody before resolving mootness |
| Alleged executive evasion (detain abroad to avoid habeas) | Appellants: Evidence and declarations show transfers and site choices were intended to evade habeas | Gov: Allegations speculative and unparticularized; do not show capture or prior custody within U.S. jurisdiction | Court: Declines to add manipulation as a separate Boumediene factor; speculative evidence insufficient; eviction‑style transfers from U.S. jurisdiction would be a different (compelling) case |
Key Cases Cited
- Al Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010) (prior panel holding Suspension Clause did not extend to Bagram)
- Boumediene v. Bush, 553 U.S. 723 (2008) (establishing three‑factor test for extraterritorial reach of Suspension Clause)
- Johnson v. Eisentrager, 339 U.S. 763 (1950) (holding habeas did not extend to certain aliens detained abroad)
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (AUMF authorizes detention of enemy combatants)
- Munaf v. Geren, 553 U.S. 674 (2008) (habeas as remedy for unlawful executive detention and limits on relief)
- Rasul v. Bush, 542 U.S. 466 (2004) (statutory habeas jurisdiction for Guantanamo detainees)
- Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011) (release to foreign custody and mootness/collateral‑consequences analysis)
- United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990) (distinction between citizens and nonresident aliens for constitutional protections)