CONSTITUTIONAL LAW AND POLICY

Facts

Ali Hussein Akbar is a Jordanian citizen who was captured abroad and imprisoned as an enemy combatant at Balad Air Base in Iraq. Balad Air Base is controlled by U.S. military forces. Mr. Akbar filed a writ of habeas corpus, claiming that although he was given the status of enemy combatant, the U.S. had not yet filed formal charges, had not allowed him an opportunity to answer any charges, had not given him assistance of counsel, and had no opportunity to be head before a neutral tribunal. The United States Army, along with the D.O.J., filed a motion to dismiss the habeas corpus petition.

Issue

Whether Mr. Akbar, a non-U.S. citizen enemy combatant, is entitled to be heard on a habeas corpus petition?

Rule

Alien enemy combatants have the right to be heard on a habeas corpus petition if (1) their designation as enemy combatant lacked sufficient process; (2) the sites of apprehension/detention are sufficiently within the control of the U.S., and (3) the obstacles and costs of resolving the habeas corpus petition are not unduly burdensome. Boumediene v. Bush, 553 U.S. 723 (2008).

Analogous Case

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that persons detained in Guantanamo Bay were still protected by, and had access to, some legal rights with one such right being the right to challenge detention. As per this particular Supreme Court ruling, detainees held in US overseas military installations had the right to habeas corpus. Towards this end, the Military Commission Act (MCA) was found to be in violation of the constitution as it essentially suspended this particular right. In Boumediene v. Bush, Bosnian police arrested Lakhdar Boumediene and five other natives of Algeria following a tipoff by U.S. intelligence personnel. The six were arrested on suspicion of being involved in plans to attack the U.S. embassy located in Bosnia. All six were labeled enemy combatants by the U.S. government and carted off to Guantanamo Bay were they were detained. Alleging certain violations of international law, the common law, certain treaties and statuses, as well as the Due Process Clause of the constitution, Boumediene filed a habeas corpus petition....…that Mr. Akbar has the right to be heard on a habeas corpus petition because he is being detained within a facility that is within the control of the U.S.

Third, there exists no foreseeable practical hindrances in the determination of whether or not Mr. Ali Hussein Akbar should be granted right to the writ. This is to say that concerns to the effect that, amongst other things, resources may have to be expended or diverted from other pressing needs are not dispositive. After all, as the Supreme Court indicated in Boumediene v. Bush, 553 U.S. 723 (2008), incremental resource expenditure is a necessary consequence of compliance with various judicial processes. For this reason, the resolution of the habeas corpus petition cannot be deemed too costly or burdensome on this front.

Conclusion

In the final analysis, it would be prudent to note that upon consideration of all three factors used to establish whether non-citizens/aliens designated as enemy combatants have the right to be heard on a habeas corpus petition, the conclusion is reached to the effect that Mr. Akbar is entitled to the…