As the debate over whether to send more American troops to Afghanistan intensifies, our war efforts could be hindered by an unlikely source: the U.S. judicial branch. Federal judges are considering whether foreign al-Qaeda and Taliban supporters captured by the U.S. military and held at Bagram airbase in Afghanistan can sue the U.S. government to be released from custody. On October 30, Fadi al Maqaleh, a Yemeni citizen currently detained in Afghanistan, argued in a brief to the D.C. circuit court that he has the right under our Constitution to challenge his confinement in U.S. federal court. Despite his campaign promises to abandon the detention policies of his predecessor, President Obama has adopted the same position as President Bush and is trying to block al Maqaleh’s law suit from proceeding. On Monday, the Obama administration filed a brief urging the D.C. circuit court to dismiss the case.
Permitting enemy militants to sue their U.S. captors would overhaul the military’s entire detention system and severely disrupt the U.S. mission in Afghanistan. But one judge has already ruled in favor of al Maqaleh. In a stunning decision this spring, Judge John D. Bates of the D.C. district court declared that al Maqaleh has a constitutional right to bring a claim challenging his custody. The Obama administration immediately appealed to the D.C. circuit court, where the case is currently pending.
Maqaleh v. Gates is a watershed case because al Maqaleh is one of approximately 600 enemy detainees being held at Bagram. Most are Afghans who were captured on the battlefield and who might rejoin the fight if released. As an essential part of wartime strategy, capturing and detaining enemy fighters has long been considered indispensible for weakening the other side’s ground forces. (For example, the United States detained more than 3 million German soldiers in World War II.) A ruling for al Maqaleh would mean that — for the first time in our history — foreign-enemy litigants in an active war zone could flood our courts asking judges to order the U.S. military to release them from custody.
The case is also important because Bagram is one of the most crucial logistical bases in Afghanistan. Thirty miles north of Kabul, it comprises nearly 4,000 acres, and much of the military’s supplies for the region pass through, including weapons, equipment, and food. Located in the middle of a battleground, the base has been attacked several times since the war began in 2001. As fighting in Afghanistan escalates, Bagram remains one of the largest and most vital military facilities in the fight against Taliban and al-Qaeda militants. Requiring the airbase to facilitate detainee trials, counsel visits, and court preparation would pose a significant security burden.
Al Maqaleh argues that Article I of the Constitution bestows on him a right to challenge his detention, a right known as habeas corpus. The Obama administration contends that al Maqaleh — as an enemy foreigner, captured abroad and held in a war zone — has no legal right, under any statute or the Constitution, to challenge his detention. Indeed, the Military Commissions Act of 2006, which bipartisan congressional majorities passed and President Bush signed into law, explicitly bars any U.S. court from hearing cases brought by alien detainees.
The Supreme Court, however, struck down part of the Military Commissions Act in the groundbreaking 2008 case Boumediene v. Bush. In a 5–4 opinion, the court declared that detainees held at the Guantanamo Bay Detention Camp have a constitutional right to challenge their captivity in federal court. The decision hinged on the unique, century-long control that the U.S. exercises over the Cuban land — sovereignty so absolute that the Supreme Court concluded, “in every practical sense Guantánamo is not abroad.”
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The decision prompted a vigorous dissent from Justice Antonin Scalia, who strenuously disagreed that Guantanamo detainees may dispute their confinement: “What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”
As Scalia predicted, the Boumediene decision has put the judicial branch on a collision course with the president and Congress. Al Maqaleh now asks that the Boumediene ruling be extended halfway around the world to Bagram Airbase. The Obama administration argues that even if the right to habeas corpus reaches Guantanamo (because of U.S. sovereignty over that land), it surely must not extend to an active war zone in Afghanistan (where no similar sovereignty exists).
There are three reasons the D.C. circuit court should reverse Judge Bates’s decision. First, nothing in the text of the Constitution grants enemy foreigners held in an active war zone the legal right to sue their captors. Indeed, legal precedent instructs that enemies held abroad have no such right. In a post–World War II 1950 case, Johnson v. Eisentrager, the Supreme Court considered whether German war criminals imprisoned in Landsberg, Germany, were entitled to habeas corpus. The court held that they were not: There has been “no instance where a court, in this or any other country where the [habeas] writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right.” (The Eisentrager precedent was not dispositive in the Boumediene case because of America’s unusual sovereignty over Guantanamo Bay.)
Second, the Constitution specifically grants the two elected branches of government the power to formulate military policy. The president is the commander in chief of the armed forces, and Congress may declare war and provide for its funding. This allocation of power provides accountability. Voters are particularly concerned about policies affecting our troops, as shown by the heated debate about boosting forces in Afghanistan. The two branches that are accountable to the American people, therefore, should generally make military decisions, without being undermined by the politically insulated judicial branch. When the executive formulates military strategy and Congress provides for its funding, both branches must consider the public will. But when a federal judge — with lifetime tenure — defies those choices, the American people’s power to self-govern is diminished.
Third, judges do not have the military training or expertise to know the damage that could result from allowing detainees to sue their captors. The executive branch attests that permitting enemies to bring such lawsuits could be crippling: It would have “serious adverse consequences for the military mission in Afghanistan,” according to the Justice Department. The result would be “disruption, distraction, burden, and loss of prestige of the command.” In reaching this conclusion, presumably the executive branch has drawn on the expert opinions and classified information of the Department of Defense, the CIA, and the National Security Agency. Federal judges — with no particular national-security training — are in no position to second-guess experts on this matter.
Let’s leave the Afghanistan war in the hands of generals.
– Stephanie Hessler is an adjunct fellow at the Manhattan Institute. She served as a constitutional lawyer for the Senate Judiciary Committee, where she advised on terrorist-detention policy.