Parwan and Al Maqaleh

As Ben pointed out yesterday, the Washington Post report about the possibility that non-Afghan detainees held at Parwan will be repatriated to their home countries is significant news. Apart from its import for U.S. detention policy generally, the development, if true, may have bearing on the factual underpinnings in Al Maqaleh v. Gates, the case examining whether the Suspension Clause extends to non-Afghan detainees held in the U.S.-run detention facilities in Afghanistan. I’ve discussed this case in a few prior posts. The Post reports:

administration is considering the repatriation of most, if not all, of the non-Afghan detainees held at the main American-run prison in Afghanistan, an effort to oversee their transfer before U.S. officials relinquish control of the facility, according to administration officials. The foreign prisoners, who number close to 50, were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to U.S. and foreign officials.

The 50 prisoners discussed in the article undoubtedly include the three petitioners whose habeas petitions are currently pending before Judge Bates—Fadi Al Maqaleh, Amin Al-Bakri, and Redha Al-Najar.  If the United States moves the non-Afghan detainees from Parwan, as the article suggests it might, the Government could file a supplemental motion to dismiss the detainees’ petitions on the theory that the district court would then lack a justiciable case or controversy under Article III.  The Government has not yet made any such motion, although it did recently file a notice of supplemental authority, in which it made two points relating to the recently enacted NDAA.  (Ben and Bobby’s review of the NDAA provisions in this area is here.)  First, section 1021 of the NDAA “affirm[ed]” the AUMF’s grant of authority for:

Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the laws of war.’ Section 1021(b) defines the ‘covered persons’ detainable under the AUMF to include a ‘person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.’ Section 1021(c)(1) then confirms that ‘covered persons’ may be detained under the laws of war ‘until the end of the hostilities authorized by’ the AUMF.

The Government then discusses the status review procedures that were also enacted in the new law, as section 1024 of the NDAA.  That section mandated that the Secretary of Defense shall provide Congress with a report “setting forth the procedures for determining the status of persons detained pursuant to [the September 18, 2001 AUMF]” and that the procedures for such long-term detentions require two elements:  (1) a military judge must preside over the proceedings for the determination of status of an unprivileged enemy belligerent, and (2) an unprivileged belligerent may, at his election, be represented by military counsel at those proceedings. The Government then draws attention to the section of President Obama’s NDAA signing statement that addresses this provision:

The President’s signing statement with respect to the NDAA explains that “consistent with congressional intent as detailed in the Conference Report,” the Executive Branch “will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.”

The existing review process being considered in Al Maqaleh is outlined in a declaration appended to the Government’s May 2011 motion to dismiss.  That process--at least as of May last year--does not mandate that a military judge oversee the status determination proceeding.  Rather, it is overseen by a board of three field-grade officers.  Detainees are appointed a “personal representative,” but there is no mention of the availability of non-appointed legal counsel in the declaration.  Petitioners’ U.S.-based habeas counsel have stated the lack of access to counsel as one of the flaws in the existing process, and have asserted they have been repeatedly denied access to the petitioners.  The Government's view, as articulated in its reply brief in support of its motion to dismiss, is that permitting the detainees access to even elective (i.e. non-government-appointed) counsel would be disruptive in “an active theater of war.”  Specifically, “Counsel access . . . would directly implicate the type of practical obstacles that weighed against extending the writ to Bagram [in the D.C. Circuit’s view of the Al Maqaleh case in its 2010 opinion]." It will be interesting to see what exactly is next in the case before Judge Bates.  We’ll keep an eye out. Update: additional links added.