The Trouble With Obama's Appeal Of The Bagram Habeas Ruling

In this diary criticizing Glenn Greenwald, the diarist argues that this passage in the Obama appeal (PDF) makes the decision to appeal understandable:

[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

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    I'm pretty sure (5.00 / 1) (#1)
    by Big Tent Democrat on Sat Apr 11, 2009 at 06:20:53 PM EST
    the folks criticizing Glenn on this do not understand the issues.

    I do not think they are acting in bad faith. But you never know.

    Since geekesque is about used up after Black... (none / 0) (#5)
    by lambert on Sat Apr 11, 2009 at 06:50:12 PM EST
    ... I wonder who the poster will be?! Can't wait...

    I think it is bad faith. (none / 0) (#13)
    by inclusiveheart on Sat Apr 11, 2009 at 08:05:32 PM EST
    Anyone that can argue that Greenwald is "dishonest" because he fails to mention a task force and that as the diarist says:

    In other words these policies are all under review and the final product of the review should be available in approximately three months.

    The diarist deceptively implies that because the Obama Administration has a task force reviewing the policy, the task force will have bearing on the court decisions or can "make it all better" somehow; and just to stir the pot s/he is calling Greewald a liar (in effect) for not addressing and recognizing the significance of the rather insignificant task force review.

    The diarist is engaging in character assasination and an intellectually dishonest argument because they are trying to downplay the significance of the court decisions.  Reminds me of the Black diary.  I'm begining to think someone is giving a class in how to write these diaries.


    If not a class (none / 0) (#16)
    by Big Tent Democrat on Sat Apr 11, 2009 at 08:13:46 PM EST
    significant encouragement. I think I have an idea who that would be . . .

    This person presumably Does Have a name. . . (none / 0) (#20)
    by andgarden on Sat Apr 11, 2009 at 09:11:30 PM EST
    So here's one of the (none / 0) (#21)
    by inclusiveheart on Sat Apr 11, 2009 at 09:23:48 PM EST
    member responses.  What say you?

    Third Way

    I think it is bunk and of course it all centers around character assassination.


    Let's take it in parts (5.00 / 1) (#23)
    by Big Tent Democrat on Sat Apr 11, 2009 at 10:23:04 PM EST
    First is the issue a LEGAL question or a policy question? For if it is legal, the commenter's statement is incirrect when he says:

    "But Greenwald knows that the law is clear: there's no right to petition from Bagram."

    There has been exactly ONE court decision on the Bagram question. It is Judge Bates' decison. So far, the detainees in questio have been found to have a right to petition. to the extent the law is clear, and it is not, the clarity is preciselty the reverse of what this person has stated. There are no decisions on the other side of this question.

    But the truth is this is not a legal question (the legal question is open in reality). It is a policy question. the commenter is comfortable, even pleased, that the Obama Administrationj is conidering adopting as POLICY the view that it will not permit detainees transported to Bagram from outside theaters of war the right they would have otherwise, to seek a writ of habeas corpus:

    "Obama's working on a way to challenge the detention  . . ."

    And "the work" being done includes consideration of denying these detainees the right to petition for writ of habeas corpus. This is terrible and objectionable policy in my opinion. To some, it seems that it is ok. That is their perogative. Greenwald, I and many others objected to such a policy when it was Bush's policy. t is not surprsing that we object to it when it becomes Obama's policy. Now before we get bogged down, let's be clear, it is possible that Obama may propose a policy that includes a habeas writ review, even in court. But it seems he will take the position that such a review can only occur at the sufference of the Executive.

    That is Bushism. It is as simple as that.

    The rest of the comment is incoherent gibberish.


    That diary was pathetic (5.00 / 2) (#2)
    by Steve M on Sat Apr 11, 2009 at 06:23:02 PM EST
    Maybe the administration will decide at some point not to utilize the "black hole" option any more.  We can all be helpful.  But in the meantime, all we know is that they continue to argue that the courts should have no say regarding the prisoners at Bagram.  There is nothing "fundamentally dishonest" at pointing out that those arguments continue to be made.

    Even if the administration decides to "do the right thing" in the end, there's no question that continuing scrutiny by the judiciary plays a part in holding their feet to the fire and preventing them from simply punting on the tough decisions.  The idea that we should just SYFPH for several months until the administration's task force has finished considering the issue is extremely wrongheaded.

    Actually (5.00 / 1) (#3)
    by Big Tent Democrat on Sat Apr 11, 2009 at 06:27:40 PM EST
    I think it is a little worse than that. The filing of the appeal (and the arguing of the position in the first place) casts doubt that the new Obama detention policy will disclaim any right to transfer detainees from outside a theater of war to a theater of war.

    That is quite troubling.

    As you know, my view of "theater of war" is likely more expansive than many folks, including Glenn Greenwald and I believe, yourself.

    Perhaps a court will not agree with my definition. But I would prefer a straightforward argument on the point, if that is what underlies the Obama Administration thinking on this matter.


    according to the bush admin., (none / 0) (#25)
    by cpinva on Sun Apr 12, 2009 at 05:43:29 AM EST
    As you know, my view of "theater of war" is likely more expansive than many folks, including Glenn Greenwald and I believe, yourself.

    in the "war on terror", the theatre is the entire world. afghanistan and iraq just happen to be specific locations that we have sent troops to. that congress has never actually declared war is irrelevant. using that logic, anyone, captured anywhere, is well within the boundries of the theatre of war.

    it sounds as though you've accepted that thesis yourself. if this thesis is correct (and i don't believe it is), the whole case is rendered moot.


    Admin review (none / 0) (#28)
    by BackFromOhio on Sun Apr 12, 2009 at 07:12:52 PM EST
    disrespects, IMO, separation of powers among judiciary, Exec and Congress.  Even if Admin is addressing a policy question, it is the Admin's right to do so in the exercise of the powers of the Executive branch of government, not as a means to sidestep the work of theJudicial branch on a legal question.  

    Why not believe your eyes? (5.00 / 2) (#19)
    by lilburro on Sat Apr 11, 2009 at 08:57:18 PM EST
    I have absolutely no patience for this "wait and see" mentality when enough tracks have been laid for us to know where the train is going.  Mohamed et al. v. Jeppesen for example, was not a fluke - Eric Holder defended Bush's state secrets policy quite recently in an interview with Katie Couric.

    Couric: Having said that, do you believe the state secrets doctrine was abused by the Bush administration?

    Holder: Well, I'm in the process of looking - that is being reviewed now. And so, I'll see what the result of that - review is. And as I said, try to share the results of that review with the American people.

    Couric: What's your gut though?

    Holder: Well, I don't know. On the basis of the two, three cases that we've had to review so far - I think that the invocation of the doctrine was correct. We - we reversed - are in the process of looking at one case. But I think we're likely to reverse it.

    Can anyone name one case in which state secrets made sense?  Al-Haramain v. Obama?  Of course not.  Mohamed et al. v. Jeppesen?  Of course not.

    Finally the diarist expresses some utter ignorance when he quotes the CIA prison shutdown report.  That was always mandated to happen.  But the Executive Orders carved out room so that the CIA could capture someone - somewhere - and after a short period, transfer them elsewhere.  Sending people to Bagram is an obvious option.  The CIA doesn't run Bagram after all - the Army does.  It's practically written in the playbook.

    If the Obama DoJ wants to play cloak and dagger games with their policies, they'll get no credit from me.  Following the Bush line so closely is a total farce.  Holding so many innocent people at Guantanamo now is a farce.

    Remember...they're not doing this because they're confused.  They're doing this because they actually buy into the Bush B.S.

    ASDF (none / 0) (#4)
    by Addison on Sat Apr 11, 2009 at 06:41:22 PM EST
    If the government is the sole reason why individuals are in a theater of war then those individuals should not incur legal penalties that apply to those in a theater of war. It's nonsensical and nonsensical things shouldn't be part of policy.

    I do wonder about the idea that Obama's administration will implement these policies. Potentially the punt to July could represent an inchoate policy; the individual cases and total situation are still under review and they just want to wait until the policy is fully-formed before they "switch" from the Bush system to the new one. That they prefer to have their new set of prosecutorial evaluative processes developed before they have to evaluate people. I can't judge how likely that is, probably not very, but I've been around enough bureaucracy to wonder if that's what's going on.

    Certainly though, if the plan will still be (basically) renditioning people to places where they have fewer rights out of a desire for convenience and opacity -- essentially making rights dependent not on the degree or location of the crime but on where their plane happened to fly once they were caught -- that is dumb beyond words.

    Shouldn't have to punt (none / 0) (#6)
    by lambert on Sat Apr 11, 2009 at 06:50:58 PM EST
    Read GG's quotes from Obama during the campaign.

    Perhaps... (none / 0) (#8)
    by Addison on Sat Apr 11, 2009 at 07:00:21 PM EST
    I assume you mean mainly this Obama campaign quote:

    Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

    What I mean by "punt" is that it might conceivably take the Obama DOJ months to work out a consistent, comprehensive legal means to get rid of the "black holes." They might not be done yet, and want to have those means in place before other action is taken to avoid complications regarding jurisdiction and status.

    Now, this isn't optimal because if people deserve habeas rights they deserve them regardless of a timeline that would make things more convenient for the Obama DOJ (one that would accomplish the "switch" from Bush to Obama policy all at once). However, perhaps it doesn't mean that the black holes will not, ultimately, be abolished.

    So that's what I meant by "punt." I agree that they probably shouldn't have to punt, but wonder if there are complexities involved that makes punting seem necessary to them, regardless of where their policy is headed.

    I don't know. To be honest I guess I'd side on doubtfulness about that, but I can't say I know enough about the DOJ's current internal policy-making to know. It is clear that Glenn is correct that if the black hole exists in Bagram then Obama went back on a very clear statement.


    Permitting habeas review (none / 0) (#24)
    by Big Tent Democrat on Sat Apr 11, 2009 at 10:25:01 PM EST
    to persons entitled to it is only a part of the detention policy.

    But it is an important, even essential part. That dropping it is being considered by the Obama Administration is pretty alarming, even condemanble. If you care about such things. If you don't, then leave it to those who do.


    I do not follow your argument (none / 0) (#7)
    by Big Tent Democrat on Sat Apr 11, 2009 at 06:52:05 PM EST
    You write

    If the government is the sole reason why individuals are in a theater of war then those individuals should not incur legal penalties that apply to those in a theater of war. It's nonsensical and nonsensical things shouldn't be part of policy.

    But then seem to be ok with considering such a policy as long as you do not actually implement such a policy.

    Explain to me the logic of what you are writing there. Why consider a policy you will never (or should never implement?) Why even assume that Obama will consider a policy he has zero intention of implementing?


    Seems clear to me (5.00 / 1) (#14)
    by gyrfalcon on Sat Apr 11, 2009 at 08:06:21 PM EST
    that Obama wants to reserve the right to decide these things to himself.  He may, in fact, decide to do the right thing in the end, but the overwhelming horror of his position on it, if I'm understanding the legal argument here, is that he is also hellbent on preserving it for future presidents.

    Obama amply demonstrated during the campaign that he's a serious control freak in some areas.  OK, fine, we might be able to live with that if you believe he can be "trusted."  But he's also now doing the things that will pass that control on to future occupants of the White House, and NOT doing the things that would invalidate or even so much as cast doubt on Bush's power grabs.

    I suppose it's completely unrealistic to expect any president to give powers back once they've been accumulated.  But that's why Bush should have been impeached, IMHO.

    I'm once again glad I'm already 60, but that may not be short enough to avoid seeing another Bush type inherit this power.

    Thanks a lot, Barack!


    Great post (none / 0) (#27)
    by Ga6thDem on Sun Apr 12, 2009 at 10:08:16 AM EST
    and it's at least consistent. I keep making the point this same point to Republicans who aren NOW complaining about this. I said where were you when Bush was doing this? Crickets.

    What if a Pat Buchanan type gains control in 2012? You don't know what is going to happen in the future and I keep making the point that all of this is really bigger than Obama. Right now he's only enabling the Bush agenda to not only continue but to be carried out perpetually.


    What I was saying... (none / 0) (#9)
    by Addison on Sat Apr 11, 2009 at 07:11:40 PM EST
    ...is that I don't know what policy they are or are not considering. I'm saying that the "punt" could result from them working a good policy and preferring to defer moving folks around and restoring rights until they have a good, airtight policy in place.

    I'm not saying that they may need more time to consider a nonsensical policy. I'm saying that, perhaps, a review of the cases and situation and formulation of a sensible policy is underway and they are punting until it is complete. I'm not saying that they need any more time to consider extending the nonsensical Bush policy.

    If the policy of "black holes" is being considered it's obvious that it shouldn't be. If that is the reason for the "punt" -- and let me be clear I know that it may be -- that is a clear rejection of what Obama has previously said and he has backtracked in a very detrimental way.

    I hope that's clear.


    Pretty weak defense (none / 0) (#10)
    by Big Tent Democrat on Sat Apr 11, 2009 at 07:25:51 PM EST
    Tell me what bad thing would have happened if they had not sought appeal certification?

    The people would have been (5.00 / 1) (#11)
    by inclusiveheart on Sat Apr 11, 2009 at 07:52:07 PM EST
    tried for the crimes they are supposedly being held on which is apparently a bad thing these days.

    Well... (none / 0) (#12)
    by Addison on Sat Apr 11, 2009 at 08:04:48 PM EST
    ...that's sort of the point. I don't know what the DOJ is afraid (maybe without cause) will happen if the court's decision stands before July. I don't know if what they think will happen is accurate. I don't know if what they think will happen is, in fact, something that SHOULD happen. I don't know what the Task Force is talking about specifically. I don't know what the policy will be. I don't know what they're thinking.

    I don't know these things and not many people do. So the exact reason for the punt is something I don't know.

    I'm saying there could be reasons -- a new definition of the theater of war, an attempt to standardize how and what kind of information relating to place of apprehension is compiled and released, etc. -- that are reasons why they'd prefer not to have this happen now.

    I should be clear that I agree with what I understand of the Bates ruling, and side on pessimism, having noted passages like the following:

    And even if petitioners' only connection to Afghanistan is their detention there, experience in the Guantanamo Bay litigation teaches that discovery concerning the habeas claims of detainees alone will likely intrude into the military's operations at Bagram

    Which is not inspiring language, given that it says basically, "even if all our arguments are completely wrong, we'd still say the same thing, just cuz."

    While I do feel there's some room for doubt as to whether the filing is using arguments designed to kill time before July OR is using arguments that represent future policy, I think many critics of the filing -- who feel it represents future policy, perhaps for good reason -- have not explored the government's filing as deeply as they could.

    I'm sorry I can't be more concise than that. But I cut out some adverbs.


    Well (none / 0) (#15)
    by Big Tent Democrat on Sat Apr 11, 2009 at 08:11:26 PM EST
    I'll grant you that the is room to doubt.

    But you must concede it looks bad.

    I think that is all that is being said about this.

    It takes a strange sort of person to attack people who are drawing pretty darn compelling conclusions from has happened and attempt to demonize them.

    I am not saying you are doing this, but there is a vicious case of this going around. that diary and the comment thread was a particularly nasty version of it.

    some want to closing to thin reeds to attack whoever writes a critical word about the Obama Administration. In this case, most of the critics simply have no idea what they are talking about.

    I have to be honest with you, on this issue, Glenn and I know quite abit more than those critics. We have been studying the issue in depth for many years now. This is not a new interest for us.

    f you doubt me, I suggest you read me on Rasul, Hamdan and Boumediene.


    Lastly. (none / 0) (#17)
    by Addison on Sat Apr 11, 2009 at 08:36:27 PM EST
    It absolutely looks bad. The only way it could be "good" is if they didn't actually mean what they wrote. And I am not an expert, that is true, and I've learned a lot about the issue reading Glenn, you, and others on the issue. I would say that anyone who criticizes the government's appeal filing is dead-on. However, what the final policy will look like seems less absolute because one action can have multiple motivations, perhaps one that required they use Bush eraarguments they didn't even believe in (but which had precedent) to increase the chances of buying time. Who knows. It looks bad.

    As you may have seen the only thing I went after Glenn on in the diary you linked was not being more forthcoming about being a critic and searching for things to criticize. He -- and many others, including you -- feel that criticism of a policy strengthens the eventual policy (or widens the available policy choice spectrum). I don't think he should back down from stating that he seeks to criticize, given his view on the positive role critics can play.

    Finally, yes. I think we have all seen that some Obama supporters are attacking experts that they think they're supposed to disagree with. As I wrote on Dkos during an earlier Krugman blowup, which is analogous to this one:

    So economists, simply because they are not politicians, shouldn't bother with talking about economics when it impinges on politics, then?

    Well, that just seems nuts.

    Shall we shut up the meteorologists who are speaking out on the politics of climate change as well? Biologists who advocate for stronger policies vis-a-vis endangered species or threatened biomes should keep their unrealistic traps shut maybe? A health professional shouldn't bother pushing for better AIDS/HIV treatment methods during Republican administrations because he doesn't have "to concern himself with actually implementing policy?"

    Patently ridiculous stuff when applied to others.

    This is a Krugman-only rule you guys are invoking. To pretend otherwise is silly.

    At that time I was calling it the "Krugman STFU Rule." Obviously that was too limited. None of these criticisms of the critics would be applied to folks who are for Obama. And most all of the critics' criticisms would be made regardless of who was president. So it's obvious what's up.


    I would like to discuss the issue (none / 0) (#18)
    by Big Tent Democrat on Sat Apr 11, 2009 at 08:42:55 PM EST
    But with people who know what they are talking about.

    To be honest, there was not a lick of knowledge or insight on the issues in that thread about the Bagram issue.

    It's something I and Glenn and others have frankly, dedicated a lot more time to than most anybody else in the blogs. That is just a fact.

    If Glenn had just started writing about the issue, or if I had, maybe the suspicion of our views would be merited. But dammit, we have been writing about these issues when nobody else gave a sh*t.

    Some of the folks in that thread particularly never gave the issues a second thought. And now they want to talk about it? Now they think they know something about it? Excuse me, they do not.

    A reasoned defense of the Obama DOJ's actions here would be welcome.

    That was not to be found in that diary or thread.


    "Normal" people would be able to (5.00 / 2) (#22)
    by Anne on Sat Apr 11, 2009 at 09:41:56 PM EST
    talk about this, even if they had not studied it as you have; they would be able to be open to learning what the issues are, to asking the questions, analyzing why these issues are important, and what the positions being taken by the administration mean, both for the immediate circumstance, and in the broader sense.

    But what I sense is that many of these people are only interested in protecting and defending Obama against any and all criticism; it is they who keep telling us we just don't understand, that because Obama is behind it, and because he is intelligent and cool and has a good heart, it's all really good - even if it looks terrible.

    They have stopped looking at the underlying issues.  They cannot or will not admit that if it were Bush that was doing this - and for a long time it was - they would be up in arms, sharpening the pitchforks and lighting the torches.  We never objected to the policies and actions because of who was behind them - we objected because the policies were wrong, the consequences horrendous, and the dangers to liberty real.  That has not changed for many of us - that is still our concern.  

    It wouldn't matter, I don't think, if those who are excusing Obama knew all there was to know - because it isn't their knowledge, or lack of it, that is driving them - it is the need to protect him from criticism at all costs.  Blind acceptance.  

    The cult lives.  That's what you're up against.  There is no reasoning with someone like that.


    Any diary directed at Greenwald... (none / 0) (#26)
    by Romberry on Sun Apr 12, 2009 at 06:17:32 AM EST
    ...that starts out with "The Fundamental Dishonesty of..." as part of the title and follows that up with "For readers who trust Greenwald to observe minimum levels of honesty and objectivity" is already a diary found out in the deep grass.

    Greenwald is far, far from alone in his criticism of Obama in this instance, and sadly, this latest instance from the Obama administration seems to be part of an emerging pattern. First FISA, then state secrets used as a bar to an entire trial rather than to force public exclusion of certain evidence, and now habeus which are all issues that Obama has reversed course on and chosen to follow the lead of Bush/Cheney.

    Greenwald does a pretty fair job of eviscerating his critics as to both substance and motive, plus the occasional assist from someone who is not so ready to cast him under the Obama bus.

    From secrecy to prosecuting (or even investigating) torture to seeking ways to avoid the habeus implication of the ruling in Boumediene v. Bush to Wall Street and bankers bailouts and bonuses, the Obama admin is (so far) an utter disappointment to me.

    I don't ascribe to the liberal theories of Obama's "innate goodness" any more than I ascribed to those theories when they were being put forth by Bush supporters in defense of Dubya. I only know what I see.

    As I've said elsewhere recently, I put my faith in no man. I put my faith in the Constitution of the United States and the rule of law. My country comes before any party, any candidate or any leader. Always.