On September 14, 2009, the Justice Department filed a brief in the DC Circuit Court of Appeals in three consolidated habeas corpus cases: al Maqaleh v. Gates; al Bakri v. Obama; and al-Najar v. Gates involving “non-Afghan aliens allegedly captured outside of Afghanistan and detained by United States military forces at Bagram Airfield.” The district court had ruled that the habeas protections in Boumediene extended to them. In its appeal, the government argued that Boumediene only applied to Guantanamo where the US enjoyed effective sovereignty, not to Bagram, an active war zone, where it did not. It further cited Johnson v. Eisentrager (1950) where the Supreme Court had ruled that accused civilian German war criminals held at a US military prison in Germany could not petition for habeas in US courts because they had at no time during their detention been held where the US exercised sovereignty.

On the surface the invocation of Eisentrager has merit but the government’s further remarks make clear that it sees the weakness in the analogy. It makes the ad hoc argument that it would be onerous for the US government in a war zone to prove that prisoners had been detained in Afghanistan and that such proof could give intelligence to our enemies. This is simply false on its face. The military files reports about its operations. Afghan insurgents and al Qaeda would almost certainly have a very good idea where their soldiers and operatives had been captured. There is no evidence that such information coming out long afterwards would compromise anything. Finally, federal courts, especially those in the DC Circuit are used to keeping information deemed sensitive secret. There is no reason that such secrecy should not hold here.

The government also argued that extending habeas protections to non-Afghans but not Afghans it held would create friction with the Afghan government. It is not clear why this would be so. It is not clear why the US military holding Afghans indefinitely in Afghanistan would not be an even bigger source of friction. Nor is it clear that the Afghan government has any interest in non-Afghan detainees whether they were captured in Afghanistan or elsewhere. So the government’s point of friction seems largely contrived.

Finally, the government argued that it had review panels, that look a lot like the heavily criticized Guantanamo Combat Status Review Tribunals (CSRTs) that substituted for habeas proceedings. As with the CSRTs, no actual lawyers would be involved.

In effect, what the Obama Administration is doing is asking the federal courts to accept a legal fiction in order to construct a new Guantanamo at Bagram outside the purview of US courts. Indeed the Administration is hiding behind Afghanistan’s quality as a war zone to tell the courts to butt out.

When it comes to military facilities, unlike Guantanamo, that are truly abroad–particularly those halfway across the globe in an active war zone–courts in the United States exceed their role by second-guessing the political branches about the reach of habeas jurisdiction. And courts particularly overstep institutional bounds when, in direct conflict with Congress’ judgment, they selectively provide habeas rights based on the detainees’ nationality or locus of capture.

Unsurprisingly, given this approach, the government never explains why non-Afghans captured outside of Afghanistan should ever be transported to Afghanistan, a war zone, for detention. Nor does it state why it cannot come to an arrangement with the Afghan government over Afghan and non-Afghan prisoners captured inside Afghanistan. After all, the Afghan government hardly raised a ruckus over Mohammed Jawad who was detained by US forces when he was 12 and held at Guantanamo for 7 years on only the flimsiest of evidence. But of course, the concerns of the Afghan government are only a pretext, as is the war itself, to do an end run around the federal courts’ separation of powers concerns and Marbury interests.

Disappointingly, the Obama Administration has not rejected Bush’s extra-legal, anti-Constitutional formulation of the War on Terror and has instead bought into its central premise that there is an extra-judicial space between the Geneva Conventions and the Constitution and US law where only the President rules.