Carlos Ramos-Mrosovsky, Baker & Hostetler LLP*
An effective amicus brief on behalf of those with first-hand experience of the issues at stake can be a powerful asset to the judiciary. The United States Court of Appeals for the D.C. Circuit decision last week that persons designated as unlawful enemy combatants and detained by the U.S. military at Bagram Air Base in Afghanistan cannot seek habeas review of their detentions demonstrates this point very well.
The result in Maqaleh v. Gates was not a foregone conclusion. The controlling precedent from the Supreme Court was Boumediene v. Bush, 128 S. Ct. 2229 (2008), which held that detainees at Guantanamo Bay could bring habeas petitions. Boumediene announced that three factors should be considered in determining whether habeas will be available to detainees held as unlawful enemy combatants outside of the United States. These factors are: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made, (2) the nature of the sites where apprehension and detention took place, and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ of habeas corpus. See Boumediene, 128 S. Ct. at 2259. Continue reading