Does Rasul Control as to Proxy Detention in Somalia?

In response to my post yesterday about looming habeas litigation alleging that the U.S. operates a proxy detention operation in Somalia, Steve Vladeck raises the interesting possibility that the MCA'06 would not apply, that Boumediene thus is beside the point, and that Rasul instead would control.  Click through to see it in context, but here's the main passage:

Bobby assumes that whether Abu Ali (the 2004 D.D.C. decision sustaining jurisdiction in a proxy detention case) applies to non-citizens held outside the territorial United States turns on the scope of the Suspension Clause in light of Boumediene.  I'm not so sure that's true.  Congress in the Military Commissions Act of 2006 did not take away statutory habeas jurisdiction over all non-citizens held outside the United States, but rather only over petitions by "an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (emphasis added).  In other words, the MCA only withdraws habeas jurisdiction over individuals who are formally detained by the United States under the auspices of the AUMF. Based on what we know about the Somalia detention operation, there seems to be at least an argument that this is not such a case... Ultimately, for non-citizens who are detained outside the United States for other purposes (whatever they may be), the MCA simply doesn't apply, and instead the question is the same as that which the Court addressed in Rasul, i.e., whether the federal courts may exercise jurisdiction over a proper respondent.

The government of course will deny it is constructively detaining Hassan.  But let's say the court asserts jurisdiction and then finds that the U.S. is indeed detaining him.  There are several possible next steps.  One is that the government would attempt to moot the issue by seeking to bring Hassan to the U.S. for prosecution (ala Abu Ali) or by pressuring the Somalis to simply release him.  Either of those courses of action will generate strong political heat, and in any event may seem a terrible idea from a security vantage point (especially outright release), so much so that I'm a bit doubtful that either would occur.  Another possibility is that the Administration would work to get custody and then transfer Hassan to GTMO for detention or prosecution by commission, knowing that there would then for sure be habeas jurisdiction.  This would make the political right happy, but generate huge pushback from the left, and again I don't see it as likely to happen.  A third possibility is that we would get actual custody and send him to Afghanistan, yet for reasons Larkin noted earlier today, that very likely would result in habeas in any event.  Or, the administration could simply argue in the alternative that (i) it is not constructively detaining Hassan in Somalia but (ii) if the court concludes otherwise, such detention would indeed be pursuant to a conclusion that he is an enemy combatant within the meaning of the MCA.  I assume they'd much prefer not to make that argument in light of the optics/political impact.  But would it be such an innovation?  Recall that the public record suggests that the government believes Hassan to be an al Qaeda figure, not some local al-Shabab notable.  And recall that we've already killed his purported boss, in a JSOC operation in Somalia. If the litigation produces a ruling rejecting the denial of constructive custody, then it seems to me the government will be obliged to actually defend that custody on the merits unless it can arrange one of the aforementioned unlikely alternative dispositions.  And since that defense would almost surely take the form of an enemy combatant-type status determination, the MCA would then come into play, bringing us back to Boumediene eventually. But what if that's wrong?  That is, what if Steve is right that Rasul controls?  Then at long last we'd confront one of the most interesting features of the Rasul decision.  Stevens famously, or perhaps notoriously, articulated two quite distinct rationales for his holding in that case.  One was that GTMO was special.  The other was that all that matters is whether the ultimate custodian of a detainee is in a federal court's territorial jurisdiction.  The former leads to the same analysis as Boumediene, in the end, when other locations of detention come into play.  The latter, in contrast, doesn't really leave room for debate--all detentions at any location would seem to be covered, so long as the chain of command (whether DOD or CIA) runs back to U.S. territory, which it always will.  That, in turn, would surely get the attention of Congress, and in short order we'd be looking at legislation expanding the jurisdiction-limiting language of the MCA so as to at least put all such circumstances in the Boumediene rather than the Rasul bucket....