Judge Denies Bagram Detainees Access to Courts
The U.S. Court of Appeals for the District of Columbia today reversed a trial court decision by Judge John Bates, a Bush appointee, and ruled that three detainees who have been held at Bagram AFB in Afghanistan without charges since 2002-2003, are not allowed to bring a habeas corpus action seeking release in U.S. courts. The opinion is here.
Judge Bates ruled in April, 2009 that there was no difference between those held at Bagram and those held at Guantanamo. His decision applied only to about a dozen detainees who were non-Afghans captured outside Afghanistan.
The three men in the case are a Tunisian man who says he was captured in Pakistan in 2002, and two from Yemen. One says he was captured in Thailand in 2002, and the other says he was detained in 2003 also outside Afghanistan.
The Appeals court based its ruling on the fact that "Bagram was on the sovereign territory of another government" and “pragmatic obstacles” of giving hearings to detainees “in an active theater of war.” [More....]
A lawyer for the detainees, Tina Foster, said that if the precedent stood, Mr. Obama and future presidents would have a free hand to “kidnap people from other parts of the world and lock them away for the rest of their lives” without having to prove in court that their suspicions about such prisoners were accurate.
“The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” she said. “We have to remember that Obama is not the last president of the United States.”
As to what it means for the future:
While the Obama administration has stepped up the use of Predator drone strikes to kill terrorism suspects and has relied on other countries, like Pakistan, to hold and interrogate suspects who are captured alive, it is not known whether the United States has directly captured anyone outside Afghanistan or Iraq recently — and, if so, where it has taken them.
A reversal in the Supreme Court is unlikely if Elena Kagan is appointed to the Court because she'd recuse herself, and with a likely 4-4 split remaining, the decision would stand.
It could also be difficult to win a reversal by the Supreme Court, where five of the nine justices supported giving habeas rights to detainees in the Guantánamo case. Among the narrow majority in that case was Justice John Paul Stevens, who is retiring.
The nominee to replace him, Elena Kagan, who as solicitor general signed the government’s briefs in the case, would most likely recuse herself from hearing an appeal of the decision, and a four-four split would allow it to stand.
And for those expecting change from Obama, consider that he took the same position in this case as the Bush Administration. From the opinion:
Appellees in this action, three detainees at Bagram, filed habeas petitions against the President of the United States and the Secretary of Defense in the district court. The government moved to dismiss for lack of jurisdiction, relying principally upon § 7(a) of the Military Commissions Act of 2006. The district court consolidated these three cases and a fourth case, not a part of these proceedings, for argument. After the change in presidential administrations on January 22, 2009, the court invited the government to express any change in its position on the jurisdictional question. The government informed the district court that it “adheres to its previously articulated position.” (my emphasis.)
What's become readily apparent: The Obama Administration is going to keep arguing for indefinite detention. The only thing it's willing to change is the terminology. Remember when it gave up the term "enemy combatent" but insisted those who provide support to al Qaeda outside the U.S. "may be deemed" members of al Qaeda?
[T]he Obama administration sees the president's detention power as global and not limited to a battlefield in Afghanistan, as some human rights groups have advocated.
"Individuals who provide substantial support to al-Qaida forces in other parts of the world may properly be deemed part of al-Qaida itself," the court papers said. "Such activities may also constitute the type of substantial support that . . . is sufficient to justify detention."
Couple this with Obama's push to transfer Guantanamo detainees to Illinois and continue to hold some indefinitely without charges. As we frequently say, this is not closing Gitmo, it's just changing the zip code.
Smoke and mirrors. And in the end, nothing is much different than the Bush Administration.
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