Small Wars Journal

Court Decisions on Bagram Detainees

Mon, 05/24/2010 - 4:36pm
We all are aware that war leads to difficult situations. In regard to detainees, we've seen terrorists released only to strike again. Yet in the interest of justice we are concerned about detaining potentially innocent people. Difficult times, difficult answers. In summary, some detainees at Bagram are trying to use American courts to chisel their way out.

Last year, a group of people were asked to join in offering an opinion to the court. Those were: Special Forces Association, U.S. Army Ranger Association, Senator Lindsey Graham, Col. (ret) Abraham German, Wade Ishimoto, Prof. Andrew Nichols Pratt, Dr. Dennis Walters, Rear Admiral (ret) George Worthington, Michael Yon and Senator Ryan Zinke.

The good attorneys who are trying to keep us from getting blown up by repeat offenders emailed today. The above parties received the following message from Attorneys David Rivkin and Carlos Ramos Mrosovsky:

Dear Gentlemen,

We are very happy to report a tremendous success in the Maqaleh litigation before the D.C. Circuit. Last Friday, the panel of three judges handed down their decision, as well as an opinion by Chief Judge Sentelle, which reversed the district court and ordered that the Bagram detainees' habeas petitions be dismissed. We have attached Judge Sentelle's opinion for your review.

It appears that our amicus brief was right on target. While both the government and counsel for the detainees made "bright line" arguments -- that is, they argued that habeas rights should always or should never apply on U.S. military bases overseas -- the court refused to accept either extreme position. Instead, it focused on the "practical factors" which were emphasized in our brief. In this regard, the most important language appears on page 22 of the decision: " . . . we hold that the third factor, that is 'the practical obstacles inherent in resolving the prisoner's entitlement to the writ . . . weighs overwhelmingly in favor of the position of the United States." The court then concluded that the fact that Bagram is located within an active theater of war weighed strongly against extending habeas rights to detainees held there. Given the court's emphasis on the "practical difficulties" side of the analysis, we feel confident that the involvement of amici who could speak with ultimate credibility as to those difficulties cannot but have made an immense impact.

At this stage, it is too early to know whether counsel for the detainees will seek a final appeal to the Supreme Court. Even if she does so, however, we believe that, given the unanimous nature of the D.C. Circuit panel's decision and its well-reasoned character, the Supreme Court is most unlikely to grant this request. Overall, the D.C. Circuit's Maqaleh decision represents a significant victory.

Thank you again for your participation in this amicus briefing project. Please do not hesitate to contact us if you have any questions.

Best regards,

David & Carlos