Foreign Nationals Captured Abroad and Detained in a
Third Country as Enemy Combatants For an Extended Period Time Can Seek
Habeas Relief in Federal Court

al Maqaleh, et al. v. Gates et al.
April 2, 2009

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  • A federal judge issued a court opinion concerning the detention of foreign nationals by the U.S. Military in Afghanistan

    The detainees were all held at the Bagram Theater Internment Facility at Bagram Airfield under the control of the U.S. Defense Department.

    The court ruled that the U.S. Supreme Court's 2008 decision in Boumediene v. Bush, (2008) "allows non-Afghans captured beyond Afghan borders," to seek habeas relief and allow them to challenge their detention in federal court. In order to be allowed to invoke the Suspension Clause of the U.S. Constitution to challenge their detentions, however, the court found that they must meet each part of a multi-prong test:

    • The detainees must not be citizens of the country where they are being held (e.g., non-Afghan citizens in this instance)
    • They must not have been captured in the country where they are being detained (here again, in Afghanistan)
    • They must been held for an unreasonable amount of time -- here, over six years -- without adequate habeas process

    One detainee, however, was found not to be entitled to habeas relief, since:

    "his Afghan citizenship -- given the unique "practical obstacles" in the form of friction with the "host" country -- is enough to tip the balance of the Boumediene factors against his claim to habeas corpus review."

    You can read the court's memorandum opinion and order below:


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