A Cert Petition in Maqaleh [UPDATED]

A couple of weeks ago, several non-Afghan detainees at Bagram Air Force Base, Afghanistan filed a cert petition with the Supreme Court after the D.C. Circuit affirmed the district court’s ruling that it lacked subject matter jurisdiction to review the prisoners’ habeas actions. The prisoners, citizens of states not at war with the United States---such as Yemen or Thailand---have been at Bagram for over a decade after they were brought there from abroad. The more than-50-page petition opens with two questions:

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366 Stat. 2600 (2006), violates the Suspension Clause in its application to citizens of countries other than the United States or Afghanistan whom the Executive captured outside of either country, far from any recognized battlefield, and has imprisoned for more than a decade without charge or reliable process under its exclusive custody and control at Bagram Air Base in Afghanistan.
2. Whether the court below erred in relying on Johnson v. Eisentrager, 229 U.S. 763 (1950), to dismiss Petitioners’ habeas corpus actions, without according proper deference to this Court’s subsequent holding in Boumediene v. Bush, 553 U.S. 723 (2008).

Relying heavily on Boumediene v. Bush, 553 U.S. 738 (2008), which held that foreign nationals imprisoned by the Executive at the U.S. Naval Station at Guantanamo Bay could petition courts for habeas review, the petition opens by noting the matter is of “urgent and national importance” and imploring the Court to grant review. The petition then proceeds to advance six separable and independent arguments as to why the Court should grant review. First, that the D.C. Circuit misapplied Boumediene’s multi-factor test by giving controlling weight to the government’s claim of practical difficulties to giving habeas review when the factors are not independently dispositive or of fixed weight. Second, that the D.C. Circuit misinterpreted the “practical difficulties” factor in Boumediene’s multi-factor test by looking at outdated and inapposite language from Eisentrager. Third, that the D.C. Circuit further misapplied the practical difficulties factor by failing to consider that the government’s actions caused all of the potential difficulties. Fourth, that the D.C. Circuit failed to give sufficient credit to the general inadequacy of process given to the Bagram prisoners as compared to the Guantanamo prisoners in Boumediene. Fifth, that the D.C. Circuit inappropriately viewed citizenship in a binary framework of either U.S. citizens or foreign nationals when those of foreign citizenship should be further distinguished between citizens of enemy states and citizens of non-enemy states. And finally, that the D.C. Circuit inappropriately concluded that giving the prisoners an avenue to pursue their habeas claims would lead to a slippery slope resulting in jurisdiction for all Bagram prisoners, because Bagram contains jurisdictionally distinct and separable categories of prisoners. The petition concludes by, again, noting that the prisoners have had no access to any judicial review and asking the Court to take up the issue. UPDATE: Both the Washington Post and Politico are reporting that Fadi Al-Maqaleh was released on Monday, ending what was a decade long detention at Bagram Air Base. Al-Maqaleh, along with his fellow Yemenite Amin al-Bakri---who is apparently sick with leukemia---was repatriated on Tuesday. It is unclear what bearing, if any, the release would have on the other Bagram detainees named on the cert. petition, and thus whether it raises any mootness issue for the cert. petition.