The Obama administration says a lower court got it wrong when, for the first time, it granted habeas corpus rights to detainees at the Bagram Airbase in Afghanistan. In an appeals court ruling filed late today, Solicitor General Elena Kagan argues that long-term detainees held at Bagram, because of their status as legitimate enemy combatants, do not have the right to challenge their detention in federal court. The precedent set by Boumediene v. Bush, she argues, does not apply to the Bagram detainees because habeas rights do not apply to non U.S. citizens detained as enemy forces in a country where the U.S. was engaged in "active hostilities."
US-opening-brief-as-filed.pdf
In April, in a case involving four non-Afghan long-term detainees who were not prisoners of war, Judge John D. Bates held that Guantanamo and Bagram were, to paraphrase the president in another context, similar enough.
Both were full of prisoners about whom legitimate questions had been
raised as to their status; in both cases the way for these prisoners to
challenge their status was weak and unfair; the "objective degree of
control" exerted by the U.S. government over the two facilities was
similar; and it did not matter much that Bagram is located in an active
war zone as authorized by Congress in 2002.
The filing comes a
day after the government announced new procedures for Bagram detainees
to challenge their status, although the details remain unclear. The
goal, it seems, was to implicitly remove one of the key reasons why
Bates ruled in favor of the detainees, which was that the prisoners
lack access to any recourse to challenge their detentions.
In
the brief, the administration disputes Bates's contention that the U.S.
control over GTMO is fundamentally similar to its control over the
Bagram facility. For one thing, they argue, the government's
relationship with Afghanistan is different than its relationship with
Cuba. Remember: the Supreme Court in Boumediene held that habeas rules applied because the U.S. government exercised "de facto sovereignty"
at the GTMO base. the U.S., according to the government, does not
exercise the same degree control over Bagram. It shares the facility
with other countries participating in military engagements, Bagram is
subject to numerous attacks by hostile forces, and it is located in the
country where a legal war is being fought. The 600 or so prisoners held
at the long-term detainment facility at Bagram are not ghosts, the
administration says. They're registered the prisoners with the
International Red Cross, and they are subject to regular review.
The
problem, as Judge Bates noted, was that the detainees claimed they were
not citizens of Afghanistan and not captured in Afghanistan. In Johnson v. Eisentrager, the Supreme Court invalidated the detention of non-German detainees as U.S. detention facilities in Germany. And though Boumediene explicitly
limited itself to GTMO detainees, Bates reasoned that there was no
prohibition from applying its principles to other situations, even if
the Supreme Court hadn't done so.
Here's the government's argument: "Habeas rights under the United
States Constitution do not extend to enemy aliens detained in the
active war zone at Bagram Airfield in Afghanistan. No court has ever
extended the Great Writ so far; the district court's reading of
Boumediene is wrong. The court therefore erred in declaring Section
7(a) of the Military Commissions Act unconstitutional as applied to
these enemy detainees. The court's reading reverses longstanding law,
imposes great practical problems, conflicts with the considered
judgment of both political branches, and risks opening the federal
courts to habeas claims brought by detainees held in other theaters of
war during future military actions."
Essentially, the government claims that Boumediene's analysis of
the citizenship claims of the detainees weighed against a finding that
they can claim habeas rights and instead based their ruling on a
variety of other factors like the procedures afforded to detainees to
challenge their status and the location of the prison.
Here again the government invokes its new procedures -- even if the
Court is sympathetic to a claim that Bagram and GMTO are similar in
many ways, the long-term detainees at Bagram are treated with far more
respect (in essence) that the GTMO detainees ever were. Under the new
procedures, three officers will review each detainee's case, and a
"personal representative" (not necessary a lawyer) with access to
classified information will be instructed to argue the facts from the
perspective of the detainee. The detainees will be able to challenge
evidence, question the government's witnesses, and provide new evidence
that the government will be compelled to investigate. In theory.
Granting habeas rights to Bagram detainees would be baaaad, the
government concludes. "This is the paradigmatic case in which lower
courts should tread cautiously in extending a new and unprecedented
Supreme Court decision beyond the specific context in which it was
announced."
Basically, the administration continues to perpetuate the definition of a class of detainees originally constructed by lawyers for President Bush -- those who aren't prisoners of war and for whom the possibility exists of indefinite detention because they're allegedly a constant threat to the United States. The difference, in the eyes of the Obama administration, is that these folks are going to be better treated and given regular (if not formal) access to a way to challenge their status. We'll see. The detainees here are represented by a stellar cast of lawyers; when they file their response brief, I'll post it. The date for arguments hasn't yet been set.
