Academic journal article Boston University Law Review

Some Holds Barred: Extending Executive Detention Habeas Law beyond Guantanamo Bay

Academic journal article Boston University Law Review

Some Holds Barred: Extending Executive Detention Habeas Law beyond Guantanamo Bay

Article excerpt

INTRODUCTION

On July 30, 2005, Masood Ahmed Janjua was riding a bus in Pakistan to visit a friend when Pakistani intelligence services abducted him.1 For seven years, the Pakistani government has held Mr. Janjua in various interrogation facilities throughout Pakistan known to practice torture, including a secret facility sometimes used by the CIA.2 Mr. Janjua has never been charged with a crime. He does not know why he is being held. He has never seen the inside of a courtroom or been able to challenge his detention. His family has neither seen nor heard from him since he was abducted, learning of his prior whereabouts only from released prisoners or government officials after Mr. Janjua had already been relocated.3 Before he was abducted, Mr. Janjua ran a successful business school, the College of Information Technology. His wife, Amina, is a leading human rights advocate in Pakistan.4 He has three children, aged fourteen to twenty, and two aging parents who long to be reunited with him.5 His family has been devastated emotionally and financially since his disappearance.6 Pakistani government sources indicate that the Pakistani government has not charged Mr. Janjua and that Mr. Janjua has been and continues to be held by the Pakistanis at the request of the U.S. government.7 Unfortunately, Mr. Janjua's case is not unique; hundreds of individuals have been forcibly disappeared in Pakistan alone.8

The September 11, 2001, terrorist attacks have had a radical impact on the United States and the world. The subsequent war on terror changed the face of modern warfare and created novel legal issues that test the boundaries of separation of powers and sovereignty doctrines. This has been particularly true in the detainee and prisoner-of-war context. With the United States' detention of prisoners in Guantanamo Bay, the Supreme Court and lower federal courts have been forced to grapple with petitions to extend habeas protection to alien detainees held by the United States in offshore facilities.

Federal courts have started to provide some guidance as to when a war-onterror detainee might be afforded habeas rights. In Boumediene v. Bush,9 the Supreme Court held that the Suspension Clause applied to Guantanamo detainees, giving federal courts jurisdiction to hear detainee habeas petitions.10 The Supreme Court analyzed three factors that contributed to its decision to extend the Suspension Clause - the citizenship and status of the detainee and the adequacy of the process that determined that status, the "nature of the sites where apprehension and then detention took place," and the "practical obstacles" faced in resolving the prisoner's invocation of the writ - but acknowledged that those factors might not be exhaustive and that they might apply differently depending on the factual scenario.11 In Al Maqaleh v. Gates, the U.S. Court of Appeals for the D.C. Circuit reiterated the Supreme Court's explanation that the Boumediene factors were not exhaustive.12 The court of appeals applied the factors set forth in Boumediene to deny habeas rights to alien detainees held by the United States at Bagram Air Force Base in Bagram, Afghanistan.13 The court of appeals explained that one factor against extending habeas rights to the detainees was that the United States did not have de facto control over Bagram in the same way it had over Guantanamo Bay.14 Although denying the prisoner's claim, the court emphasized that lack of de facto control over a detainment facility was not decisive; it was merely one factor to consider.15 Thus, the Boumediene factors potentially allow claims to be brought by foreign detainees held offshore in circumstances distinguishable from Bagram.

Another context of extraterritorial detention might also help answer the question of what rights alien detainees held by foreign governments possess. In Arar v. Ashcroft,16 the Second Circuit dealt not with a habeas petition but with a Torture Victim Prevention Act civil tort claim against the U. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.