[JURIST] Judge John Bates of the US District Court for the District of Columbia [official website] ruled [opinion, PDF; order, PDF] Thursday that three detainees being held at Bagram Air Base [official website; GlobalSecurity backgrounder] in Afghanistan can proceed with habeas corpus challenges to their detention. The court's order rejects three of four motions brought by the US government to dismiss the habeas petitions of four foreign nationals, including one Afghan national, captured outside of Afghanistan and brought to Bagram, where they are currently held. The court's decision focused on whether the detainees, Fadi Al Maqaleh, Amin Al Bakri, Redha Al Najar, and Afghan national Haji Wazir, could invoke the Constitution's Suspension Clause [text]. Applying the multi-factor test for application of the Suspension Clause developed by the US Supreme Court [official website; JURIST news archive] in Boumediene v. Bush [opinion, PDF; JURIST report], Bates wrote:

This Court's role, and this decision, is nonetheless quite narrow, and is limited today to assessing whether the Suspension Clause extends to these four petitioners and hence whether they are entitled to seek habeas corpus in this Court. Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene – they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be "enemy combatants," a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the "practical obstacles" inherent in resolving a Bagram detainee's entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war. But those obstacles are not as great as respondents claim, and certainly are not insurmountable. And importantly, for these petitioners, such practical barriers are largely of the Executive's choosing – they were all apprehended elsewhere and then brought (i.e., rendered) to Bagram for detention now exceeding six years.

Based on those conclusions driven by application of the Boumediene test, the Court concludes that the Suspension Clause extends to, and hence habeas corpus review is available to, three of the four petitioners. As to the fourth, his Afghan citizenship – given the unique "practical obstacles" in the form of friction with the "host" country – is enough to tip the balance of the Boumediene factors against his claim to habeas corpus review. When a Bagram detainee has either been apprehended in Afghanistan or is a citizen of that country, the balance of factors may change. Although it may seem odd that different conclusions can be reached for different detainees at Bagram, in this Court's view that is the predictable outcome of the functional, multifactor, detainee-by-detainee test the Supreme Court has mandated in Boumediene.

The court's Thursday order follows a Wednesday order [JURIST report] by the same court granting a habeas petition filed by a Yemeni Guantanamo Bay [JURIST news archive] detainee, ordering his release from prison. The DC District Court has been the venue for many habeas challenges, especially for Guantanamo detainees suspected of involvement with terrorism. In December, the court allowed habeas petitions [JURIST report] filed by two Guantanamo detainees to proceed until military commission charges against them were referred. Also in December, Judge Richard Leon of the DC District Court ruled that the government could continue to hold two detainees [JURIST report] who had filed habeas petitions challenging their detention, finding the government had met its burden of showing that the men were being lawfully detained under the court's definition of "enemy combatant." In November, Leon ordered the release of five Algerian detainees [JURIST report] in the first rulings on habeas petitions since the Boumediene ruling granting them the right to challenge their detention.