Over at Lawfare, Raffaela Wakeman already flagged today’s (unsurprising) D.C. Circuit decision in al Maqaleh v. Hagel, once again dismissing for lack of jurisdiction appeals by detainees held by the United States in Afghanistan (although they are neither from Afghanistan nor were they captured there) who are seeking to obtain habeas relief after and in light of the Supreme Court’s June 2008 decision in Boumediene v. Bush. If this all sounds familiar, it should be; in May 2010, a different panel of the same court unanimously held that the balancing factors identified by Justice Kennedy in Boumediene militated against application of the Suspension Clause to non-citizens detained at Bagram, owing principally to the (1) different nature of the U.S. relationship with the government of Afghanistan; and (2) the proximity of the detention facility to a zone of active combat operations.

Although a lot has changed on the ground in the intervening 43 months, the Court of Appeals reaffirmed its earlier holding today, concluding that the changes in factual circumstances are insufficient to justify a revisiting of “al Maqaleh II,” the May 2010 decision that is otherwise both the law of the circuit and the law of the case. That should be the end of the story, and yet the 43-page (!) opinion prompted two new observations that I share below the fold.

Indeed, more than just reaffirming that decision, though, al Maqaleh III goes out of its way to stress the deference due to the President at least vis-a-vis detention decisions in Afghanistan (as opposed to at Guantánamo). As Judge Henderson explained,

Detention decisions made at Bagram are inextricably a part of the war in Afghanistan. Reviewing those decisions would intrude upon the President’s war powers in a way that reviewing Guantanamo detentions does not. We take exception, then, to the Appellants’ accusation that we are abandoning our post. To the contrary, respect for the separation of powers impels us to stay our hand..

Like the odd length and rhetoric that characterized the rest of Judge Henderson’s opinion (not to mention continuing misrepresentations of what the Supreme Court actually held in Eisentrager), I found this passage striking in two respects: First, it fundamentally conflates the deference due to the Executive Branch on certain merits questions with the jurisdictional question of whether the Suspension Clause applies at Bagram, at least where the detainee is neither a citizen of, nor was captured in, Afghanistan. Nothing in Boumediene‘s three-factor balancing test turns on whether judicial review would “intrude upon the President’s war powers,” a conventional invocation of the political question doctrine; if anything, the third Boumediene factor focuses on practical obstacles, not constitutional ones. (Indeed, Judge Henderson all-but expressly invoked the political question doctrine in various passages, noting that “Foreign affairs are complicated and require a political adroitness courts simply cannot supply.”).

It may well be that, as Judge Tatel concluded for the panel in al Maqaleh II, a faithful application of Boumediene would compel the same result–no habeas jurisdiction for non-citizens at Bagram. But in a decision controlled by prior precedent, this struck me as the most significant “new” material, for it suggests that the political question doctrine might have something to do with the availability of writs of habeas corpus–an argument that not even the Fourth Circuit bought back in the early days of the Hamdi litigation over a decade ago, and that finds no support whatsoever in Boumediene.

Second, and cutting heavily in the other direction, like the passage quoted above, every key analytical element of Judge Henderson’s opinion focused on the continuing nature of U.S. combat operations in Afghanistan, implying that different analysis may well be required if and when ground troops are withdrawn from Afghanistan, perhaps as early as the end of 2014. To be sure, Judge Henderson cites Ludecke (and other decisions) for the proposition that, “Whether an armed conflict has ended is a question left exclusively to the political branches.” But the Boumediene question at issue in these cases isn’t about whether the armed conflict has ended; it’s about the three balancing factors applied by Judge Henderson. And in the very next passage, Judge Henderson stresses that “Because the war in Afghanistan continues, the war-borne practical obstacles identified in Eisentrager still obtain at Bagram.” In other words, Boumediene‘s three-factor test might well cash out differently once the U.S. has withdrawn combat troops from Afghanistan–at least if there are still any detainees in U.S. custody by then. In other words, Boumediene might then require a different jurisdictional result whether or not the political branches have declared that the “war” is “over.”