[A]ny potential for harm to petitioners in continued detention during appellate proceedings does not outweigh the need for a stay. First, the Government intends to seek expedited appellate review of the jurisdictional ruling in the April 2, 2009 Order [surely this does not make it better]. Second, the President has established, by Executive Order, a deliberative process to address questions concerning Executive detention authority and options. See Executive Order 13,493: Review of Detention Policy Options, 74 Fed. Reg. 4901 (Jan. 22, 2009). That Executive Order commands the creation of a Special Interagency Task Force to "conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counter-terrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice." Id. ¶ (e). The Task Force is scheduled to provide preliminary reports to the President and a final report by July of this year. Id. In particular, the Task Force will be reviewing the processes currently in place at Bagram and elsewhere, and will make recommendations to the President regarding those processes.

Here is the problem with that argument -- it accepts that the Obama Administration will consider policies that deny habeas review to detainees captured outside of the battlefield as a permissible policy option. Such a policy would be in conflict with Obama's own statements on the issue in 2008 and would be, in my estimation, bad policy.

It is certainly true that denying such detainees habeas review is not an absurd LEGAL argument - it could be consistent with Boumiedene.

The problem is the underlying policy. Let's understand the main purpose of the appeal here - it is not to delay a holding in the case - it is to reverse the district court's holding in the case - to wit - "to seek expedited appellate review of the jurisdictional ruling in the April 2, 2009 Order." The holding in the case is that detainees placed in a theater of war by the government will not be stripped of habeas rights they would have had but for the government's deliberate action of holding such detainees in a theater of war.

The district court's holding is quite circumscribed. It applies only to persons captured outside a theater of war and transferred to Bagram. In no way is the military's right to hold POWs without subjecting such confinement to judicial scrutiny threatened by this ruling.

In short, Judge Bates' ruling should NOT be an impediment to the enactment of any new Obama Administration detainee policy UNLESS the Obama Administration will seek to establish policies that are like those enacted by the Bush Administration - that is the district court decision is only a problem IF the Obama Administration plans to continue to transfer persons captured in places outside of theaters of war to detention facilities IN theaters of war.

The appeal of this decision is rightly criticized by those who actually understand the implications of the appeal. For those defending it, I have to believe they simply do not understand what it means in terms of policy and politics. They are not well informed on the issue. Unfortunately, I think we have to accept that some will choose not be be informed on these matters.

Speaking for me only