Al Maqaleh v. Gates

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 7, 2010 Decided May 21, 2010

No. 09-5265

FADI AL MAQALEH, DETAINEE AND AHMAD AL MAQALEH, AS
NEXT FRIEND OF FADI AL MAQALEH,
APPELLEES

v.

ROBERT M. GATES, SECRETARY, UNITED STATES
DEPARTMENT OF DEFENSE, ET AL.,
APPELLANTS

Consolidated with 09-5266, 09-5267

Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cv-01669-JDB)

Neal Kumar Katyal, Deputy Solicitor General, U.S.
Department of Justice, argued the cause for appellants. With
him on the briefs were Beth S. Brinkmann, Deputy Assistant
Attorney General, and Douglas N. Letter and Robert M. Loeb,
Attorneys.

David B. Rivkin Jr., Lee A. Casey, and Carlos
Ramos-Mrosovsky were on the brief for amici curiae Special
Forces Association, et al. in support of appellants.
 2

Tina Monshipour Foster argued the cause for appellees.
With her on the brief were Barbara J. Olshansky and Ramzi
Kassem.

George Brent Mickum IV was on the brief for amici
curiae Constitutional Law Scholars in support of appellees and
affirmance.

Walter Dellinger and Matthew Shors were on the brief
for amici curiae Non-Governmental Organizations in support of
appellees.

Paul M. Smith and Emily Berman were on the brief for
amicus curiae Retired Military Officers in support of appellees.

Douglas W. Baruch was on the brief for amici curiae
Professors of International Human Rights Law and Related
Subjects in support of appellees.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Three detainees at Bagram Air
Force Base in Afghanistan petitioned the district court for
habeas corpus relief from their confinement by the United States
military.1 Appellants (collectively “the United States” or “the
government”) moved to dismiss for lack of jurisdiction based on
§ 7(a) of the Military Commissions Act of 2006, Pub. L. No.
109-366, 120 Stat. 2600 (2006) (“MCA”). The district court

1
A fourth petition consolidated with these three in the district
court was dismissed by the district court for lack of jurisdiction and is
not a part of this interlocutory appeal.
 3

agreed with the United States that § 7(a) of the MCA purported
to deprive the court of jurisdiction, but held that this section
could not constitutionally be applied to deprive the court of
jurisdiction under the Supreme Court’s test articulated in
Boumediene v. Bush, 128 S. Ct. 2229 (2008). The court
therefore denied the motion to dismiss but certified the three
habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b).
Pursuant to that certification, the government filed a petition to
this court for interlocutory appeal. We granted the petition and
now consider the jurisdictional question. Upon review, and
applying the Supreme Court decision in Boumediene, we
determine that the district court did not have jurisdiction to
consider the petitions for habeas corpus. We therefore reverse
the order of the district court and order that the petitions be
dismissed.

I. Background

A. The Petitioners

All three petitioners are being held as unlawful enemy
combatants at the Bagram Theater Internment Facility on the
Bagram Airfield Military Base in Afghanistan.2 Petitioner Fadi
Al-Maqaleh is a Yemeni citizen who alleges he was taken into
custody in 2003. While Al-Maqaleh’s petition asserts “on
information and belief” that he was captured beyond Afghan
borders, a sworn declaration from Colonel James W. Gray,
Commander of Detention Operations, states that Al-Maqaleh
was captured in Zabul, Afghanistan. Redha Al-Najar is a
Tunisian citizen who alleges he was captured in Pakistan in
2002. Amin Al-Bakri is a Yemeni citizen who alleges he was

2
As the distinction generally makes little difference, we will
use “Bagram” to refer to both the Internment Facility and the Military
Base, unless the context indicates otherwise.
 4

captured in Thailand in 2002. Both Al-Najar and Al-Bakri
allege they were first held in some other unknown location
before being moved to Bagram.

B. The Place of Confinement

Bagram Airfield Military Base is the largest military
facility in Afghanistan occupied by United States and coalition
forces. The United States entered into an “Accommodation
Consignment Agreement for Lands and Facilities at Bagram
Airfield” with the Islamic Republic of Afghanistan in 2006,
which “consigns all facilities and land located at Bagram
Airfield . . . owned by [Afghanistan,] or Parwan Province, or
private individuals, or others, for use by the United States and
coalition forces for military purposes.” (Accommodation and
Consignment Agreement for Lands and Facilities at Bagram
Airfield Between the Islamic Republic of Afghanistan and the
United States of America) (internal capitalization altered). The
Agreement refers to Afghanistan as the “host nation” and the
United States “as the lessee.” The leasehold created by the
agreement is to continue “until the United States or its
successors determine that the premises are no longer required
for its use.” Id. (internal capitalization altered).

Afghanistan remains a theater of active military combat.
The United States and coalition forces conduct “an ongoing
military campaign against al Qaeda, the Taliban regime, and
their affiliates and supporters in Afghanistan.” These operations
are conducted in part from Bagram Airfield. Bagram has been
subject to repeated attacks from the Taliban and al Qaeda,
including a March 2009 suicide bombing striking the gates of
the facility, and Taliban rocket attacks in June of 2009 resulting
in death and injury to United States service members and other
personnel.
 5

While the United States provides overall security to
Bagram, numerous other nations have compounds on the base.
Some of the other nations control access to their respective
compounds. The troops of the other nations are present at
Bagram both as part of the American-led military coalition in
Afghanistan and as members of the International Security
Assistance Force (ISAF) of the North Atlantic Treaty
Organization. The mission of the ISAF is to support the Afghan
government in the maintenance of security in Afghanistan. See
S.C. Res. 1386, U.N. Doc. S/RES/1386 (Dec. 20, 2001); S.C.
Res. 1510, U.N. Doc. S/RES/1510 (Oct. 13, 2003); S.C. Res.
1833, U.N. Doc. S/RES/1833 (Sept. 22, 2008). According to the
United States, as of February 1, 2010, approximately 38,000
non-United States troops were serving in Afghanistan as part of
the ISAF, representing 42 other countries. See International
Security Assistance Force, International Security Assistance
Force and Afghan National Army Strength & Laydown,
http://www.nato.int/isaf/docu/epub/pdf/placemat.pdf.

C. The Litigation

Appellees in this action, three detainees at Bagram, filed
habeas petitions against the President of the United States and
the Secretary of Defense in the district court. The government
moved to dismiss for lack of jurisdiction, relying principally
upon § 7(a) of the Military Commissions Act of 2006. The
district court consolidated these three cases and a fourth case,
not a part of these proceedings, for argument. After the change
in presidential administrations on January 22, 2009, the court
invited the government to express any change in its position on
the jurisdictional question. The government informed the
district court that it “adheres to its previously articulated
position.”
 6

The district court, recognizing that the issue of whether
the court had jurisdiction presented a controlling question of law
as to which there were substantial grounds for difference of
opinion, certified the question for interlocutory appeal under 28
U.S.C. § 1292(b). Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 54-
56 (D.D.C. 2009). We accepted the case for interlocutory
review, In re Gates, No. 09-8004, 2009 U.S. App. LEXIS 17032
(D.C. Cir. July 30, 2009), bringing the jurisdictional issue before
us in the present appeal.

II. Analysis

A. The Legal Framework

While we will discuss specific points of law in more
detail below, for a full understanding, we must first set forth
some of the legal history underlying the controversy over the
availability of the writ of habeas corpus and the constitutional
protections it effectuates to noncitizens of the United States held
beyond the sovereign territory of the United States. The
Supreme Court first addressed this issue in Johnson v.
Eisentrager, 339 U.S. 763 (1950). In Eisentrager 21 German
nationals petitioned the district court for writs of habeas corpus.
The Eisentrager petitioners had been convicted by a military
commission in China of “engaging in, permitting or ordering
continued military activity against the United States after
surrender of Germany and before surrender of Japan.” Id. at
766. Because, during that period, the United States and
Germany were no longer at war, hostile acts against the United
States by German citizens were violations of the law of war.
Petitioners were captured in China, tried in China, and
repatriated to Germany to serve their sentences in Landsberg
Prison, a facility under the control of the United States as part of
the Allied Powers’ post-war occupation. Id. None ever entered
the United States, nor were any held in the United States.
 7

Petitioners sought habeas relief, alleging that their
confinement was in violation of the Constitution and laws of the
United States and the Geneva Convention. Id. at 767; see also
Eisentrager v. Forrestal, 174 F.2d 961 (D.C. Cir. 1949). The
district court held that under Ahrens v. Clark, 335 U.S. 188
(1948), statutory jurisdiction over habeas petitions did not
extend to aliens who were neither confined nor convicted in the
district of the court and whose custodians were beyond
geographic boundaries of the district in which the court sat. The
court dismissed the writ. The petitioners appealed. The Court
of Appeals reversed the district court’s judgment.

The Court of Appeals read Ahrens as having left open
the governing questions of the controversy before it, and held
that since “[t]he right to habeas corpus is an inherent common
law right,” Eisentrager v. Forrestal, 174 F.2d at 965, a
jurisdictional statute could not deprive anyone of whatever
would be the fundamental right to habeas corpus because of the
provision in Article I of the Constitution that the “Federal
Government cannot suspend the privilege, except when, in cases
of rebellion or invasion, the public safety may so require.” 174
F.2d at 965-66 (citing U.S. CONST. Art. I, § 9, cl. 2).

The court reasoned that as “Congress could not
effectuate by omission that which it could not accomplish by
affirmative action,” if the existing jurisdictional act had the
effect of depriving a person entitled to the writ of his substantive
right, the act would be unconstitutional, and therefore the court
must construe it “if possible to avoid that result.” Id. at 966. The
court ruled that the district court that had jurisdiction over the
superior officers of the immediate jailer would have jurisdiction
to hear the petition and grant or deny the writ. Id. at 967. The
Secretary of Defense became the relevant official. He sought
certiorari from the Supreme Court. The Supreme Court granted
review and reversed. By way of introduction to its reasoning,
 8

the Court noted that “[w]e are cited to no instance where a court,
in this or any other country where the 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.”
Eisentrager, 339 U.S. at 768.

The Court went on to hold that the writ was unavailable
to the enemy aliens beyond the sovereign territory of the United
States. The Court did not end its discussion with the language
concerning sovereignty, however. It noted that trial of the writ
“would hamper the war effort and bring aid and comfort to the
enemy.” Id. at 779. The Court further noted that such trial
would constitute “effective fettering of a field commander,” by
allowing “the very enemies he is ordered to reduce to
submission to call him to account in his own civil courts and
divert his efforts and attention from the military offensive
abroad to the legal defensive at home.” Id.

The Eisentrager case remained the governing precedent
concerning the jurisdiction of United States courts over habeas
petitions on behalf of aliens held outside the sovereign territory
of the United States until the Court revisited the question in
Rasul v. Bush, 542 U.S. 466 (2004). In Rasul the petitioners
were aliens (not from enemy nations) who were captured abroad
during hostilities between the United States and the Taliban.
The United States transported them to the naval base at
Guantanamo Bay, Cuba, which the United States holds under a
1903 lease agreement specifying that: “the United States
recognizes the continuance of the ultimate sovereignty of the
Republic of Cuba over the [leased areas].” Id. at 471 (quoting
the lease agreement). Thus, the habeas corpus petitioners were
foreign nationals, not from nations currently in a state of war
with the United States, taken by the United States military, and
transported to locations outside the sovereign territory of the
United States. Relying on Eisentrager, the district court
 9

dismissed the case for lack of jurisdiction. Rasul v. Bush, 215
F. Supp. 2d 55 (D.D.C. 2002). This court affirmed. In Al Odah
v. United States, 321 F.3d 1134 (D.C. Cir. 2003), we called it
“the heart of Eisentrager,” that the writ cannot be “made
available to aliens abroad when basic constitutional protections
are not.” Id. at 1411. The detainees petitioned for certiorari to
the Supreme Court. The Supreme Court granted review.

The district court and the Court of Appeals had accepted
the government’s argument that the relevant facts of Rasul were
not distinguishable from those in Eisentrager in any material
way. The Supreme Court, while not overruling Eisentrager,
explained that the lower courts had misinterpreted the earlier
Supreme Court decision. The Rasul Court stated that the
consolidated cases before it “present the narrow but important
question whether United States courts lack jurisdiction to
consider challenges to the legality of the detention of foreign
nationals captured abroad in connection with hostilities and
incarcerated at the Guantanamo Bay Naval Base, Cuba.” 542
U.S. at 470. The Court explained that the Eisentrager decision
dealt primarily with constitutional jurisdiction, with little to say
as to the “petitioners’ statutory entitlement to habeas review.”
Id. at 476 (emphasis in the original). More specifically, the
Rasul Court opined that the Eisentrager Court was construing
the effect of Ahrens v. Clark. The posture of the petitions before
the Eisentrager Court was that the Court of Appeals had
concluded that the Ahrens decision created a “statutory gap”
which the Court of Appeals in Eisentrager had seen as an
unconstitutional gap to be filled by reference to “fundamentals.”
Rasul at 478 (quoting 174 F.2d at 963). The Supreme Court in
Eisentrager agreed that the Ahrens decision controlled as to
statutory jurisdiction but did not agree with the Court of Appeals
that the gap was unconstitutional. The Rasul Court treated the
Ahrens analysis as being essential to the decision in Eisentrager,
and held that Ahrens has been overruled by Braden v. 30th
 10

Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), in
which, according to the Rasul Court, the Supreme Court held
“contrary to Ahrens, that the prisoner’s presence within the
territorial jurisdiction of the district court is not ‘an invariable
prerequisite’ to the exercise of district court jurisdiction under
the federal habeas statute.” Id. at 478.

The Rasul Court reasoned that because Braden overruled
the statutory predicate to Eisentrager’s holding, Eisentrager did
not compel a holding that the courts lack jurisdiction to issue the
writ. The Rasul Court then held that the habeas statute did
extend geographically to the base at which the petitioners were
held in Guantanamo. “At common law, courts exercised habeas
jurisdiction over the claims of aliens detained within sovereign
territory of the realm . . . .” Id. at 481. Citing Lord Mansfield
from 1759, the Rasul majority stated that “there was ‘no doubt’
as to the court’s power to issue writs of habeas corpus if the
territory was ‘under the subjection of the Crown.’” Id. at 482
(citing King v. Cowle, 2 Burr. 834, 854-55, 97 Eng. Rep. 587,
598-99 (K.B.)). The Court noted that no one questioned the
district court’s jurisdiction over the custodians of the petitioners
and “therefore [held] that § 2241 confers on the district court
jurisdiction to hear petitioners’ habeas corpus challenges to the
legality of their detention at the Guantanamo Bay Naval Base.”
Id. at 484. Finally, the Court concluded that

[w]hat is presently at stake is . . . whether the federal
courts have jurisdiction to determine the legality of the
Executive’s potentially indefinite detention of
individuals who claim to be wholly innocent of
wrongdoing.

542 U.S. at 485. The Court “[a]nswer[ed] that question in the
affirmative, . . . reverse[d] the judgment of the Court of Appeals
and remand[ed] the[] cases for the district court to consider in
 11

the first instance the merits of the petitioners’ claims.” Id.

Responding to the Rasul decision, Congress passed the
Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat.
2739 (2005) (DTA), which President Bush signed into law on
December 30 of that year. Among other things, that Act added
a new provision to the Habeas Act which provided that:

Except as provided in section 1005 of the [DTA]3, no
court, justice, or judge shall have jurisdiction to hear or
consider –

(1) an application for a writ of habeas corpus
filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay,
Cuba; or

(2) any other action against the United States or
its agents relating to any aspect of the detention
by the Department of Defense of an alien at
Guantanamo Bay, Cuba, who

(A) is currently in military custody; or

(B) has been determined by the United
States Court of Appeals for the District
of Columbia Circuit . . . to have been
properly detained as an enemy
combatant.

3
The reference to § 1005 as an exception to the jurisdiction
stripping provision refers to subsections of the DTA which provided
for exclusive judicial review of Combatant Status Review Tribunal
determinations and military commission decisions by the United
States Court of Appeals for the District of Columbia Circuit.
 12

In June of 2006, the Supreme Court decided Hamdan v.
Rumsfeld, 548 U.S. 557 (2006), which reversed another decision
of this court. See Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir.
2005). In Hamdan, the Supreme Court held that the DTA did
not operate to strip the federal courts of jurisdiction to hear
petitions for writs of habeas corpus on behalf of Guantanamo
detainees that were pending at the time of the DTA’s enactment.
Therefore, the Supreme Court reversed this court’s dismissal of
the petitions and remanded again for further proceedings.

In October of 2006, in response to the Hamdan decision,
Congress passed the Military Commissions Act of 2006 (MCA),
Pub. L. No. 109-366, 120 Stat. 2600 (2006). That Act, among
many other things, included a further amendment to the habeas
statute. The new amendment reads:

(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas
corpus filed by or on behalf of an alien detained by the
United States who has been determined by the United
States to have been properly detained as an enemy
combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3)
of the DTA], no court, justice, or judge shall have
jurisdiction to hear or consider any other action against
the United States or its agents relating to any aspect of
the detention, transfer, treatment, trial, or conditions of
confinement of an alien who is or was detained by the
United States and has been determined by the United
States to have been properly detained as an enemy
combatant or is awaiting such determination.
 13

Congress went on to explicitly state:

The amendment made by subsection (a) shall take effect
on the date of the enactment of this Act, and shall apply
to all cases, without exception, pending on or after the
date of the enactment of this Act which relate to any
aspect of the detention, transfer, treatment, trial, or
conditions of detention of an alien detained by the
United States since September 11, 2001.

This clearer statement of congressional intent to strip the courts
of habeas jurisdiction set the stage for an inevitable
determination of the constitutionality of such a stripping in light
of the Suspension Clause, U.S. CONST. Art. I, § 9, cl. 2. That
case came to us in Boumediene v. Bush, 476 F.3d 981 (2007).
A divided panel held that the statute was constitutional.

In Boumediene, we reasoned that the Rasul decision had
not overruled Eisentrager, and therefore the earlier case
remained precedentially binding upon us. We read Eisentrager
as holding that constitutional habeas rights did not extend to any
aliens who had never been in or brought into the sovereign
territory of the United States. We further reasoned that
Congress’s power to regulate our jurisdiction permitted
Congress to strip the courts of any jurisdiction to hear habeas
claims for aliens who had no constitutional right to habeas relief,
without regard to the Suspension Clause. The Supreme Court in
Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229 (2008),
reversed our decision.

At the outset, the Supreme Court agreed with our court
that the Military Commissions Act, 28 U.S.C. § 2241(e), did in
fact “deprive[] the federal courts of jurisdiction to entertain the
habeas corpus actions” by the detainees held at Guantanamo
Bay. 128 S. Ct. at 2244. The Court therefore faced the
 14

constitutional questions

whether petitioners are barred from seeking the writ or
invoking the protections of the Suspension Clause either
because of their status, . . . designation by the Executive
Branch as enemy combatants, or their physical location
. . . at Guantanamo Bay.

Id.

In a thorough and detailed opinion, the Court undertook
its inquiry into the constitutional questions on two levels. First,
it explored the breadth of the Court’s holding in Eisentrager
(still not overruled) in response to the argument by the United
States that constitutional rights protected by the writ of habeas
corpus under the Suspension Clause extended only to territories
over which the United States held de jure sovereignty. Second,
it explored the more general question of extension of
constitutional rights and the concomitant constitutional
restrictions on governmental power exercised extraterritorially
and with respect to noncitizens. In so doing, the Court set forth
a “broad historical narrative of the writ [of habeas corpus] and
its function . . . .” Id. at 2248. While the Court concluded that
the historical record did not provide a clear answer, it accepted
the government’s position that the United States did not exercise
de jure sovereignty over Guantanamo Bay, but took notice of
“the obvious and uncontested fact that the United States, by
virtue of its complete jurisdiction and control over the base,
maintains de facto sovereignty over this territory.” Id. at 2253
(citing Rasul, 542 U.S. at 480). However, the Court further
concluded that “the Government’s premise that de jure
sovereignty is the touchstone of habeas jurisdiction. . . . is
unfounded.” Id.
 15

The Court reasoned that the adoption of a bright-line rule
based on de jure sovereignty would be inconsistent with a long
line of Supreme Court cases exploring “the Constitution’s
geographic scope.” Id. In explaining this proposition, the Court
explored the series of opinions known as the “Insular Cases,” in
which the Court had “addressed whether the Constitution, by its
own force, applies in any territory that is not a state.” Id. at
2254 (citing De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v.
United States, 182 U.S. 222 (1901); Armstrong v. United States,
182 U.S. 243 (1901), Downes v. Bidwell, 182 U.S. 244 (1901);
Hawaii v. Mankichi, 190 U.S. 197 (1903); Dorr v. United States,
195 U.S. 138 (1904)). The Boumediene Court recalled the
practical doctrine drawn from the Insular Cases and applied in
such later decisions as Reid v. Covert, 354 U.S. 1 (1957), and
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990),
applying the Constitution by its own force in territories which
were destined for apparent statehood, but recognizing a more
practical and selective application of constitutional protection of
rights in territories temporarily held by the United States, or in
acts by the United States government outside United States
territory altogether.

More directly pertinent to the issue before us today, the
Court stated that “nothing in Eisentrager says that de jure
sovereignty is or has ever been the only relevant consideration
in determining the geographic reach of the Constitution or of
habeas corpus.” 128 S. Ct. at 2258. The Court explained that
such a holding would have been inconsistent with the Insular
Cases and Reid. Seeing no need to create such a conflict
between its holdings, the Court found what it called “a common
thread uniting the Insular Cases, Eisentrager, and Reid: the idea
that questions of extraterritoriality turn on objective factors and
practical concerns, not formalism.” Id.
 16

Applying the “common thread” to the question of the
jurisdiction of United States courts to consider habeas petitions
from detainees in Guantanamo, the Court concluded that “at
least three factors are relevant in determining the reach of the
Suspension Clause.” Id. at 2259. Those three factors, which we
must apply today in answering the same question as to detainees
at Bagram, 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 then detention took place; and
(3) the practical obstacles inherent in resolving the
prisoner’s entitlement to the writ.

Id. Applying these factors to the detainees at Guantanamo, the
Court held that the petitioners had the protection of the
Suspension Clause.

B. Application to the Bagram Petitioners

Our duty, as explained above, is to determine the reach
of the right to habeas corpus and therefore of the Suspension
Clause to the factual context underlying the petitions we
consider in the present appeal. In doing so, we are controlled by
the Supreme Court’s interpretation of the Constitution in
Eisentrager as construed and explained in the Court’s more
recent opinion in Boumediene. This is not an easy task, as
illustrated by the thorough and careful opinion of the district
court. While we are properly respectful of the district court’s
careful undertaking of this difficult task, as we review rulings on
motions to dismiss under Federal Rule of Civil Procedure 12 de
novo, we reexamine the issue and ultimately reach a different
conclusion.
 17

At the outset, we note that each of the parties has
asserted both an extreme understanding of the law after
Boumediene and a more nuanced set of arguments upon which
each relies in anticipation of the possible rejection of the bright-
line arguments. The United States would like us to hold that the
Boumediene analysis has no application beyond territories that
are, like Guantanamo, outside the de jure sovereignty of the
United States but are subject to its de facto sovereignty. As the
government puts it in its reply brief, “[t]he real question before
this Court, therefore, is whether Bagram may be considered
effectively part of the United States in light of the nature and
history of the U.S. presence there.” Reply Br. of the United
States at 7. We disagree.

Relying upon three independent reasons, the Court in
Boumediene expressly repudiated the argument of the United
States in that case to the effect “that the Eisentrager Court
adopted a formalistic, sovereignty-based test for determining the
reach of the Suspension Clause.” 128 S. Ct. at 2257. Briefly
put, the High Court rejected that argument first on the basis that
the Eisentrager Court’s further analysis beyond recitations
concerning sovereignty would not have been undertaken by the
Court if the sovereignty question were determinative. The
Boumediene Court explicitly did “not accept the idea that . . . the
[sovereignty discussion] from Eisentrager is the only
authoritative language in the opinion and that all the rest is dicta.
The Court’s further determinations, based on practical
considerations, were integral to Part II of its opinion and came
before the decision announced its holding.” Id. Second, the
Court rejected the Government’s reading of Eisentrager because
the meaning of the word “sovereignty” in the Eisentrager
opinion was not limited to the “narrow technical sense” of the
word and could be read “to connote the degree of control the
military asserted over the facility.” Id. The third reason is the
one we noted above, that is, that the Court concluded that such
 18

a reading of Eisentrager as proposed by the United States
“would have marked not only a change in, but a complete
repudiation of, the Insular Cases’ (and later Reid’s) functional
approach to questions of extraterritoriality.” Id. at 2258.

True, the second factor articulated in Boumediene for
rejecting the government’s reading of Eisentrager might apply
differently in this case because of differences in the levels of
control over the military facilities. But we must keep in mind
that the second factor is only one of the three reasons offered by
the Boumediene Court for the rejection of “a formalistic,
sovereignty-based test for determining the reach of the
Suspension Clause.” Id. at 2257. Whatever the force of the
second reason offered by the Court in Boumediene, the first and
third reasons make it plain that the Court’s understanding of
Eisentrager, and therefore of the reach of the Suspension
Clause, was based not on a formalistic attachment to
sovereignty, but on a consideration of practical factors as well.
We note that the very fact that the Boumediene Court set forth
the three-factor test outlined above parallels the Eisentrager
Court’s further reasoning addressed by the Boumediene Court in
its rejection of the bright-line de jure sovereignty argument
before it. That is, had the Boumediene Court intended to limit
its understanding of the reach of the Suspension Clause to
territories over which the United States exercised de facto
sovereignty, it would have had no need to outline the factors to
be considered either generally or in the detail which it in fact
adopted. We therefore reject the proposition that Boumediene
adopted a bright-line test with the effect of substituting de facto
for de jure in the otherwise rejected interpretation of
Eisentrager.

For similar reasons, we reject the most extreme position
offered by the petitioners. At various points, the petitioners
seem to be arguing that the fact of United States control of
 19

Bagram under the lease of the military base is sufficient to
trigger the extraterritorial application of the Suspension Clause,
or at least satisfy the second factor of the three set forth in
Boumediene. Again, we reject this extreme understanding.
Such an interpretation would seem to create the potential for the
extraterritorial extension of the Suspension Clause to
noncitizens held in any United States military facility in the
world, and perhaps to an undeterminable number of other United
States-leased facilities as well. Significantly, the court engaged
in an extended dialog with counsel for the petitioners in which
we repeatedly sought some limiting principle that would
distinguish Bagram from any other military installation.
Counsel was able to produce no such distinction. See Transcript
of Oral Argument, pp. 30-47. Again, such an extended
application is not a tenable interpretation of Boumediene. If it
were the Supreme Court’s intention to declare such a sweeping
application, it would surely have said so. Just as we reject the
extreme argument of the United States that would render most
of the decision in Boumediene dicta, we reject the first line of
argument offered by petitioners. Having rejected the bright-line
arguments of both parties, we must proceed to their more
nuanced arguments, and reach a conclusion based on the
application of the Supreme Court’s enumerated factors to the
case before us.

The first of the enumerated factors is “the citizenship and
status of the detainee and the adequacy of the process through
which that status determination was made.” Citizenship is, of
course, an important factor in determining the constitutional
rights of persons before the court. It is well established that
there are “constitutional decisions of [the Supreme] Court
expressly according differing protection to aliens than to
citizens.” United States v. Verdugo-Urquidez, 494 U.S. at 273.
However, clearly the alien citizenship of the petitioners in this
case does not weigh against their claim to protection of the right
 20

of habeas corpus under the Suspension Clause. So far as
citizenship is concerned, they differ in no material respect from
the petitioners at Guantanamo who prevailed in Boumediene.
As to status, the petitioners before us are held as enemy aliens.
But so were the Boumediene petitioners. While the Eisentrager
petitioners were in a weaker position by having the status of war
criminals, that is immaterial to the question before us. This
question is governed by Boumediene and the status of the
petitioners before us again is the same as the Guantanamo
detainees, so this factor supports their argument for the
extension of the availability of the writ.

So far as the adequacy of the process through which that
status determination was made, the petitioners are in a stronger
position for the availability of the writ than were either the
Eisentrager or Boumediene petitioners. As the Supreme Court
noted, the Boumediene petitioners were in a very different
posture than those in Eisentrager in that “there ha[d] been no
trial by military commission for violations of the laws of war.”
128 S. Ct. at 2259. Unlike the Boumediene petitioners or those
before us, “[t]he Eisentrager petitioners were charged by a bill
of particulars that made detailed factual allegations against
them.” Id. at 2260. The Eisentrager detainees were “entitled to
representation by counsel, allowed to introduce evidence on
their own behalf, and permitted to cross-examine the
prosecution’s witnesses” in an adversarial proceeding. Id. The
status of the Boumediene petitioners was determined by
Combatant Status Review Tribunals (CSRTs) affording far less
protection. Under the CSRT proceeding, the detainee, rather
than being represented by an attorney, was advised by a
“Personal Representative” who was “not the detainee’s lawyer
or even his ‘advocate.’” Id. The CSRT proceeding was less
protective than the military tribunal procedures in Eisentrager
in other particulars as well, and the Supreme Court clearly stated
that “[t]he difference is not trivial.” Id. at 2259.
 21

The status of the Bagram detainees is determined not by
a Combatant Status Review Tribunal but by an “Unlawful
Enemy Combatant Review Board” (UECRB). As the district
court correctly noted, proceedings before the UECRB afford
even less protection to the rights of detainees in the
determination of status than was the case with the CSRT.4
Therefore, as the district court noted, “while the important
adequacy of process factor strongly supported the extension of
the Suspension Clause and habeas rights in Boumediene, it even
more strongly favors petitioners here.” Al Maqaleh, 604 F.
Supp. 2d at 227. Therefore, examining only the first of the
Supreme Court’s three enumerated factors, petitioners have
made a strong argument that the right to habeas relief and the
Suspension Clause apply in Bagram as in Guantanamo.
However, we do not stop with the first factor.

The second factor, “the nature of the sites where
apprehension and then detention took place,” weighs heavily in
favor of the United States. Like all petitioners in both
Eisentrager and Boumediene, the petitioners here were
apprehended abroad. While this in itself would appear to weigh
against the extension of the writ, it obviously would not be
sufficient, otherwise Boumediene would not have been decided
as it was. However, the nature of the place where the detention
takes place weighs more strongly in favor of the position argued
by the United States and against the extension of habeas
jurisdiction than was the case in either Boumediene or
Eisentrager. In the first place, while de facto sovereignty is not

4
The Government argues that in our analysis of this first
factor, we should consider new procedures that it has put into place at
Bagram in the past few months for evaluating the continued detention
of individuals. But we will decide this case based on the procedures
that have been in place, not on the new procedures that are being
implemented only now when the case is before the Court of Appeals.
 22

determinative, for the reasons discussed above, the very fact that
it was the subject of much discussion in Boumediene makes it
obvious that it is not without relevance. As the Supreme Court
set forth, Guantanamo Bay is “a territory that, while technically
not part of the United States, is under the complete and total
control of our Government.” 128 S. Ct. at 2262. While it is true
that the United States holds a leasehold interest in Bagram, and
held a leasehold interest in Guantanamo, the surrounding
circumstances are hardly the same. The United States has
maintained its total control of Guantanamo Bay for over a
century, even in the face of a hostile government maintaining de
jure sovereignty over the property. In Bagram, while the United
States has options as to duration of the lease agreement, there is
no indication of any intent to occupy the base with permanence,
nor is there hostility on the part of the “host” country.
Therefore, the notion that de facto sovereignty extends to
Bagram is no more real than would have been the same claim
with respect to Landsberg in the Eisentrager case. While it is
certainly realistic to assert that the United States has de facto
sovereignty over Guantanamo, the same simply is not true with
respect to Bagram. Though the site of detention analysis weighs
in favor of the United States and against the petitioners, it is not
determinative.

But we hold that the third factor, that is “the practical
obstacles inherent in resolving the prisoner’s entitlement to the
writ,” particularly when considered along with the second factor,
weighs overwhelmingly in favor of the position of the United
States. It is undisputed that Bagram, indeed the entire nation of
Afghanistan, remains a theater of war. Not only does this
suggest that the detention at Bagram is more like the detention
at Landsberg than Guantanamo, the position of the United States
is even stronger in this case than it was in Eisentrager. As the
Supreme Court recognized in Boumediene, even though the
active hostilities in the European theater had “c[o]me to an end,”
 23

at the time of the Eisentrager decision, many of the problems of
a theater of war remained:

In addition to supervising massive reconstruction and aid
efforts the American forces stationed in Germany faced
potential security threats from a defeated enemy. In
retrospect the post-War occupation may seem
uneventful. But at the time Eisentrager was decided, the
Court was right to be concerned about judicial
interference with the military’s efforts to contain “enemy
elements, guerilla fighters, and ‘were-wolves.’”

128 S. Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784).

In ruling for the extension of the writ to Guantanamo, the
Supreme Court expressly noted that “[s]imilar threats are not
apparent here.” 128 S. Ct. at 2261. In the case before us,
similar, if not greater, threats are indeed apparent. The United
States asserts, and petitioners cannot credibly dispute, that all of
the attributes of a facility exposed to the vagaries of war are
present in Bagram. The Supreme Court expressly stated in
Boumediene that at Guantanamo, “[w]hile obligated to abide by
the terms of the lease, the United States is, for all practical
purposes, answerable to no other sovereign for its acts on the
base. Were that not the case, or if the detention facility were
located in an active theater of war, arguments that issuing the
writ would be ‘impractical or anomalous’ would have more
weight.” Id. at 2261-62 (emphasis added). Indeed, the Supreme
Court supported this proposition with reference to the separate
opinion of Justice Harlan in Reid, where the Justice expressed
his doubts that “every provision of the Constitution must always
be deemed automatically applicable to United States citizens in
every part of the world.” See 354 U.S. at 74 (Harlan, J.,
concurring in the result). We therefore conclude that under both
Eisentrager and Boumediene, the writ does not extend to the
 24

Bagram confinement in an active theater of war in a territory
under neither the de facto nor de jure sovereignty of the United
States and within the territory of another de jure sovereign.

We are supported in this conclusion by the rationale of
Eisentrager, which was not only not overruled, but reinforced
by the language and reasoning just referenced from Boumediene.
As we referenced in the background discussion of this opinion,
we set forth more fully now concerns expressed by the Supreme
Court in reaching its decision in Eisentrager:

Such trials would hamper the war effort and bring aid
and comfort to the enemy. They would diminish the
prestige of our commanders, not only with enemies but
with wavering neutrals. It would be difficult to devise
more effective fettering of a field commander than to
allow the very enemies he is ordered to reduce to
submission to call him to account in his own civil courts
and divert his efforts and attention from the military
offensive abroad to the legal defensive at home. Nor is
it unlikely that the result of such enemy litigiousness
would be a conflict between judicial and military
opinion highly comforting to enemies of the United
States.

Eisentrager, 339 U.S. at 779. Those factors are more relevant
to the situation at Bagram than they were at Landsberg. While
it is true, as the Supreme Court noted in Boumediene, that the
United States forces in Germany in 1950 faced the possibility of
unrest and guerilla warfare, operations in the European theater
had ended with the surrender of Germany and Italy years earlier.
Bagram remains in a theater of war. We cannot, consistent with
Eisentrager as elucidated by Boumediene, hold that the right to
the writ of habeas corpus and the constitutional protections of
the Suspension Clause extend to Bagram detention facility in
 25

Afghanistan, and we therefore must reverse the decision of the
district court denying the motion of the United States to dismiss
the petitions.

We do not ignore the arguments of the detainees that the
United States chose the place of detention and might be able “to
evade judicial review of Executive detention decisions by
transferring detainees into active conflict zones, thereby granting
the Executive the power to switch the Constitution on or off at
will.” Brief of Appellees at 34 (quotation marks and citation
omitted). However, that is not what happened here. Indeed,
without dismissing the legitimacy or sincerity of appellees’
concerns, we doubt that this fact goes to either the second or
third of the Supreme Court’s enumerated factors. We need
make no determination on the importance of this possibility,
given that it remains only a possibility; its resolution can await
a case in which the claim is a reality rather than a speculation.
In so stating, we note that the Supreme Court did not dictate that
the three enumerated factors are exhaustive. It only told us that
“at least three factors” are relevant. Boumediene, 128 S. Ct. at
2259 (emphasis added). Perhaps such manipulation by the
Executive might constitute an additional factor in some case in
which it is in fact present. However, the notion that the United
States deliberately confined the detainees in the theater of war
rather than at, for example, Guantanamo, is not only
unsupported by the evidence, it is not supported by reason. To
have made such a deliberate decision to “turn off the
Constitution” would have required the military commanders or
other Executive officials making the situs determination to
anticipate the complex litigation history set forth above and
predict the Boumediene decision long before it came down.

Also supportive of our decision that the third factor
weighs heavily in favor of the United States, as the district court
recognized, is the fact that the detention is within the sovereign
 26

territory of another nation, which itself creates practical
difficulties. Indeed, it was on this factor that the district court
relied in dismissing the fourth petition, which was filed by an
Afghan citizen detainee. Al Maqaleh, 604 F. Supp. 2d at 229-
30, 235. While that factor certainly weighed more heavily with
respect to an Afghan citizen, it is not without force with respect
to detainees who are alien to both the United States and
Afghanistan. The United States holds the detainees pursuant to
a cooperative arrangement with Afghanistan on territory as to
which Afghanistan is sovereign. While we cannot say that
extending our constitutional protections to the detainees would
be in any way disruptive of that relationship, neither can we say
with certainty what the reaction of the Afghan government
would be.

In sum, taken together, the second and especially the
third factors compel us to hold that the petitions should have
been dismissed.

CONCLUSION

For the reasons set forth above, we hold that the
jurisdiction of the courts to afford the right to habeas relief and
the protection of the Suspension Clause does not extend to aliens
held in Executive detention in the Bagram detention facility in
the Afghan theater of war. We therefore reverse the order of the
district court denying the motion for dismissal of the United
States and order that the petitions be dismissed for lack of
jurisdiction.

So ordered.