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Although Sentelle's opinion reads like a very careful, nuanced treatment of Boumediene, and so may seem to be rejecting the extreme arguments made by both sides, there's actually very little middle ground in this case. The Court of Appeals relies heavily on the fact that Bagram is "in theater," and that this means that its analysis doesn't necessarily reach other places outside the United States where we might hold non-citizen detainees. While this is descriptively true, it belies the most significant facts of the case--that the three detainees were neither picked up in Afghanistan nor were they from Afghanistan. The fact that they were held "in theater" resulted only from the Government's decision to move them there. Thus, Maqaleh will stand for the proposition that location of capture is less important than location of detention--and that, so long as the latter is in a zone of active combat operations, there will be no habeas. 

To be fair, the panel went out of its way not to decide whether the same analysis would hold in cases where the Government seemed to be moving the detainees deliberately to avoid judicial review. But (1) how would the detainee ever prove that? And (2) why else would the Government voluntarily move detainees into a zone of active combat operations? Put another way, if this isn't that case, what will be?

At the end of his dissent in Boumediene, Justice Scalia emphasized the perverse incentive that today's decision supports. As he put it, had the executive branch known that Guantanamo would be "special," "the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves." 



Indeed.

Update: Just to clarify, let me note that the one case this logic would not apply to is a case where the detainee is picked up somewhere where there would be habeas jurisdiction (e.g., inside the U.S.). There, precedent is fairly clear that the Government can't transfer to defeat jurisdiction. But any non-citizen picked up anywhere else in the world could be held in Afghanistan, and, according to the D.C. Circuit, beyond the process of U.S. courts.