## Facts

- Three non-Afghan citizens (two Yemeni, one Tunisian) were detained by the U.S. military at the Bagram Theater Internment Facility at Bagram Air Force Base in Afghanistan.
- Each detainee was designated an “unlawful enemy combatant” under Bagram’s internal review procedures (Detainee Review Boards).
- The detainees filed habeas corpus petitions in the U.S. District Court for the District of Columbia challenging the legality of their detention.
- The government moved to dismiss for lack of jurisdiction under § 7(a) of the Military Commissions Act of 2006 (MCA), which purported to bar federal habeas jurisdiction over certain alien enemy combatants.
- The district court concluded that applying § 7(a) to these petitions would violate the Suspension Clause, reasoning that the constitutional habeas right recognized in Boumediene extended to these detainees at Bagram, and denied the motion to dismiss.
- The district court certified the jurisdictional question for interlocutory appeal, and the D.C. Circuit accepted the appeal.

## Issues

1. Whether the Suspension Clause, as interpreted in Boumediene, extends to non-citizen detainees held by the United States at Bagram in Afghanistan.
2. Whether federal courts therefore have jurisdiction to hear such detainees’ habeas petitions notwithstanding § 7(a) of the MCA.

## Decision

- The D.C. Circuit reversed the district court’s denial of the motion to dismiss.
- Applying Boumediene’s functional test, the court held the Suspension Clause did not extend to the petitioners’ detention at Bagram.
- Because the Suspension Clause did not apply, § 7(a) of the MCA barred jurisdiction in federal court over the petitions.
- The court remanded with instructions to dismiss the habeas petitions for lack of jurisdiction.

## Legal Principles

- Extraterritorial application of the Suspension Clause turns on a functional, multi-factor inquiry rather than a rule that follows U.S. custody to all locations.
- Boumediene’s factors include: (1) the detainee’s citizenship and status and the adequacy of the status-determination process; (2) the nature of the detention site and the degree and permanence of U.S. control; and (3) practical obstacles to extending habeas, including effects on military operations and separation of powers.
- A detention facility in an active theater of war, located within the territory of a foreign sovereign, and subject to non-permanent U.S. control weighs strongly against extending constitutional habeas jurisdiction.
- Courts may give substantial weight to practical barriers and the risk of judicial intrusion into ongoing military and foreign policy judgments when deciding whether the Suspension Clause applies.

## Conclusion

The D.C. Circuit held that, unlike Guantánamo Bay, Bagram’s location in an active war zone within a foreign sovereign and the practical burdens of litigation there meant the Suspension Clause did not reach these detainees; accordingly, the federal courts lacked habeas jurisdiction and the petitions had to be dismissed under the MCA.


Al-Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010)