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.

< House Committee Approves Bill Blocking Gitmo in Illinois | NY Judge Rejects Mandatory Minimum in Child P*rn Case >
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    the new boss, (none / 0) (#1)
    by cpinva on Sat May 22, 2010 at 03:56:52 AM EST
    same as the old boss.

    Much better than the old boss (none / 0) (#4)
    by Edger on Sat May 22, 2010 at 09:31:06 AM EST
    Democrats across the country would be screaming for impeachment.

    Of the old boss...


    No, they weren't when the old boss was in charge (5.00 / 1) (#6)
    by ruffian on Sat May 22, 2010 at 09:39:26 AM EST
    More's the pity.

    Your'e right (5.00 / 1) (#7)
    by Edger on Sat May 22, 2010 at 09:42:35 AM EST
    I should have said 'democratic' bloggers...

    that's more like it (none / 0) (#8)
    by ruffian on Sat May 22, 2010 at 09:57:46 AM EST
    What are they saying now? I won't know until they are quoted here. My blood pressure can only take so much.

    They usually go looking (none / 0) (#9)
    by Edger on Sat May 22, 2010 at 10:07:10 AM EST
    for something shiny to oooh and ahhh about. Kind of like the bush 26 percenters did.

    Maybe they are the same people, and just jumped a sinking ship and registered as democrats when they saw the writing on the wall for the GOP.


    I just read the opinion (none / 0) (#2)
    by Big Tent Democrat on Sat May 22, 2010 at 08:40:39 AM EST
    and am not impressed. The discussion of the cases was, well, not really accurate. Most importantly, it seems to me that the question of the adequacy of review of detainee status was given extremely short shrift. I do not know if that is a result of the briefing by counsels or a failing by the Court itself. From the decision:

    "So far as the adequacy of the process through which that status determination was made, the petitioners are in a stronger position for the availability of the writ than were either the Eisentrager or Boumediene petitioners. As the Supreme Court noted, the Boumediene petitioners were in a very different posture than those in Eisentrager in that "there ha[d] been no trial by military commission for violations of the laws of war." 128 S. Ct. at 2259. Unlike the Boumediene petitioners or those before us, "[t]he Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them." Id. at 2260. The Eisentrager detainees were "entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution's witnesses" in an adversarial proceeding. Id. The status of the Boumediene petitioners was determined by Combatant Status Review Tribunals (CSRTs) affording far less protection. Under the CSRT proceeding, the detainee, rather than being represented by an attorney, was advised by a "Personal Representative" who was "not the detainee's lawyer or even his `advocate.'" Id. The CSRT proceeding was less protective than the military tribunal procedures in Eisentrager in other particulars as well, and the Supreme Court clearly stated that "[t]he difference is not trivial." Id. at 2259.

    21 The status of the Bagram detainees is determined not by a Combatant Status Review Tribunal but by an "Unlawful Enemy Combatant Review Board" (UECRB). As the district court correctly noted, proceedings before the UECRB afford even less protection to the rights of detainees in the determination of status than was the case with the CSRT.4 Therefore, as the district court noted, "while the important adequacy of process factor strongly supported the extension of the Suspension Clause and habeas rights in Boumediene, it even more strongly favors petitioners here." Al Maqaleh, 604 F. Supp. 2d at 227. Therefore, examining only the first of the Supreme Court's three enumerated factors, petitioners have made a strong argument that the right to habeas relief and the Suspension Clause apply in Bagram as in Guantanamo."

    Habeas availability is not the only issue here. In Hamdan, Justice Stevens made clear that the Geneva Conventions apply, and the inadequacy of the status determination process can be an independent basis for ordering release.

    I think the result on habeas may be correct, but the failure to address the Geneva rights of the detainees makes this decision simply inadequate.

    I want to write some more on this issue.

    Two questions ... (none / 0) (#10)
    by nyrias on Sat May 22, 2010 at 12:06:38 PM EST
    first .. this is the US Court of Appeal in the District of Columbia. Why would they rule on anything pertaining to the Geneva convention, even if the US government adopted it. Should they limit their attention to US Federal laws?

    Should an international court be more appropriate to address Geneva rights issues?

    Secondly ... does the Geneva convention mandates captured "soldiers" access to their captors own judicial system? I think not.


    Even on the face of it (none / 0) (#5)
    by ruffian on Sat May 22, 2010 at 09:38:10 AM EST
    if they are basing the decision even in part on the fact that Bagram is in a war zone, that means all the government has to do is get you to a war zone to hold you. Easy as pie. At least holding them in Illinois would take away that excuse.

    I hate to be spitting mad on a Saturday, but I guess I better get used to it.

    You had best not read Greenwald re (none / 0) (#11)
    by oculus on Sat May 22, 2010 at 12:27:54 PM EST
    Sen. Obama's oratory then compared to his administration's position re this case.  (Today's column.)

    I don't know what to make of this (none / 0) (#13)
    by Militarytracy on Sun May 23, 2010 at 08:46:33 AM EST
    I really don't.  If our troops pick up someone in Afghanistan they must have adequate evidence to hold them for trial or they must release them.  They can hold them for four days though without such evidence.  Such people are usually tried in Afghan courts now too.  It is part of creating a working system of justice in Afghanistan.  My husband has told me though that in order to have enough evidence, many persons making and planting IEDs have been arrested several times before found guilty and incarcerated.  The military does its best to take this in stride as part of directing the country into a working justice system.  Since our military is all volunteer, it also means to me that our soldiers consider the additional risks that they face worth it in terms of the long term end result.  But our President is hell bent on reserving some very scary special privileges for himself and I don't understand why.  And I also wonder if his special privileges won't eventually undermine the whole mission in Afghanistan and the building of a justice system there.  What example is our President setting for the the President of Afghanistan?

    Bagram is the new Gitmo (none / 0) (#12)
    by Militarytracy on Sun May 23, 2010 at 08:28:49 AM EST
    at least for now.  I also wondered why they halted closing Gitmo after they got Bagram fully online.  Perhaps they have doubts as to how long they may control and hang onto Bagram.

    rules of evidence (none / 0) (#14)
    by diogenes on Sun May 23, 2010 at 05:17:59 PM EST
    Yeah, sure...people are going to step forward in Afghanistan, the land of suicide bombers, to testify against an alleged terrorist.  Especially when the American commitment is highly questionable and we may book out in 2013 or so, leaving our local friends hung out to dry as we did in Vietnam.

    It is a problem (none / 0) (#15)
    by Militarytracy on Mon May 24, 2010 at 09:56:04 AM EST
    The fact that the Taliban kills anyone who would testify against them, and the fact that we may leave at any time and leave anyone who did put up a fight against the Taliban high and dry and dead.