Today, the DC Circuit Court of Appeals ruled against three detainees held by the U.S. on a military base in Bagram, Afghanistan, holding that the federal courts do not have jurisdiction to review their habeas petitions. People For the American Way Foundation filed an amicus brief in support of the detainees’ position that the federal courts do have such jurisdiction.

 In apparent concern about opening the door to habeas cases from detainees held on U.S. military bases all over the world, the three-judge panel distinguished the United States’ control and sovereignty over the Bagram military base from the de facto sovereignty over Guantanamo Bay – a determinative factor in the Supreme Court’s decision in Rasul v. Bush (2004) which held that Guantanamo detainees could seek habeas relief in U.S. courts. The panel pointed out that the U.S. has exercised its leasehold interest in Guantanamo Bay for over 100 years, while its leasehold interest in Bagram is only a few years old.

More interestingly, the court also accepted the government’s “practical obstacles” arguments on appeal that allowing these cases to proceed in our federal courts would overly burden a military that is engaged in active hostilities in Afghanistan. PFAW Foundation wrote about this very issue, urging the court to take notice of the orderly and unobtrusive manner in which the Guantanamo habeas cases have been disposed since the Supreme Court’s decision in Boumediene in 2008. Those cases are particularly instructive given that 30 of the 38 detainees whose cases were brought before the D.C. district courts by the time of filing were found to have insufficient evidence to support their detentions, belying the notion that those detained as enemy combatants are the worst of the worst. In fact, many are not and worse still, some may even be innocent.