Judge Rules Bagram Detainees Can Challenge Confinement

By Jeralyn, Section Terror Detainees
Posted on Thu Apr 02, 2009 at 12:35:53 PM EST
Tags: Bagram, Afghanistan (all tags)

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A federal judge has ruled the detainees at Bagram AFB in Afghanistan can challenge their confinement in U.S. court. The opinion is here (pdf.)

[Judge]Bates noted that the detainees are similar to those held at the U.S. military prison at Guantanamo Bay, Cuba. Those detainees won the right to challenge their confinements in federal court under a landmark Supreme Court ruling last year.

....Bates ruled that while the sites were "not identical," the "objective degree of [U.S.] control" was not "appreciably different." Obstacles to resolving the detainees' rights "are not as great as respondents claim," Bates said of the U.S. position. "And importantly," he wrote, the obstacles "are largely of the Executive's choosing," because the men "were all apprehended elsewhere and then brought (i.e. rendered) to Bagram for detention now exceeding six years."

The Obama Administration had sided with Bush on the case.

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Judge Rules Bagram Detainees Can Challenge Confinement | 10 comments (10 topical)

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Good news, but the government's chicanery (5.00 / 1) (#6)
by scribe on Thu Apr 02, 2009 at 01:01:26 PM EST

and obduracy in the face of justice, reason and history is ... not as surprising as it once was. Every time I see the government's latest twist or turn, trying to escape accountability and law, memory brings back a passage from the first volume of William Manchester's biography of Winston Churchill, The Last Lion. In it, Manchester describes the British Empire's colonial system into which young Churchill was born and raised:

The rights of Roman citizenship were slow to follow. The moment a Union Jack raced up a colonial flagstaff, speech was free and habeas corpus the right of all.

From their repeated intransigence on the topic of habeas corpus, I suppose we can safely deduce that the Anglophilia of the American Ruling Class has its limits.

Good News (none / 0) (#1)
by squeaky on Thu Apr 02, 2009 at 12:37:35 PM EST

: You bet it is good news (5.00 / 1) (#7)
by dallas on Thu Apr 02, 2009 at 01:15:40 PM EST

I'm so happy to see Obama's Bush like ways be challenged by the court.
Now of course Obama will take this all the way to the Supreme Court and we will have to see how they judge. They may judge different than Guantanamo because they ruled Guantanamo was on US soil. They may not see it that way with a base in Afghanistan. I hope they do but we will have to see. Here's hoping.

Is it true (none / 0) (#2)
by Steve M on Thu Apr 02, 2009 at 12:43:39 PM EST

that ALL the Bagram detainees were apprehended outside of Afghanistan? Or does he mean that all of the petitioning detainees fall into that category?

No it is Not True (none / 0) (#3)
by squeaky on Thu Apr 02, 2009 at 12:50:30 PM EST

The government had aggressively fought the suits, arguing that the detainees were held in a dangerous war zone. Bates deferred ruling whether the fourth detainee, an Afghan citizen, can also challenge his detention.
There are about 650 people detained at the Bagram prison, and Bates's ruling would probably not pertain to those picked up in Afghanistan and held there.

Let's see (5.00 / 1) (#5)
by Steve M on Thu Apr 02, 2009 at 01:01:16 PM EST

The opinion confirms that you are exactly right:

And importantly, for these petitioners, such practical barriers are largely of the Executive's choosing -- they were all apprehended elsewhere and then brought (i.e., rendered) to Bagram for detention now exceeding six years. [Emphasis in original]

So it's just 4 detainees out of the 650, although we can probably assume that there are others who are similarly situated.

I think it makes a big difference. The military obviously needs to be able to operate detention facilities in war zones, and there's no historical precedent for making the writ of habeas available at facilities of that type.

But that doesn't mean the government gets to declare, "Yay! Habeas-free zone!" and then send all its prisoners held elsewhere into the war zone to be detained. That's absurd, and as the judge noted, if it's hard to resolve a habeas claim when someone is detained in a war zone then maybe the government shouldn't have moved these people into a war zone.

Now, if I'm a lawyer representing one of the Bagram detainees who actually was captured in the "war zone," I'm going to advance the argument that the normal "no habeas in a war zone" principle shouldn't apply any longer, since the government has admitted that Bagram is a safe facility isolated from war conditions by the fact that it's willing to risk moving detainees from elsewhere to that location. I might not win, but there's some logic to it.

In other words, if you really are in a war zone where the risks are high and you can't possibly allow yourself to be distracted by dealing with court proceedings and the like, then you should act like it, and not play these silly "hide the ball" games.


How does this affect (5.00 / 1) (#9)
by lilburro on Thu Apr 02, 2009 at 01:27:33 PM EST

the government's concept of the endless battlefield (Kagan and Holder accept this concept). LA Times

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
"Do you agree with that?" the senator said.
"I do," Kagan replied.

Seems like the judge here is basically saying that's a joke...military detention then can only be done with people picked up in Iraq, Afghanistan, on any military base, etc... which of course, makes sense...


: Well (none / 0) (#10)
by Steve M on Thu Apr 02, 2009 at 01:41:28 PM EST

there's kind of two different meanings of battlefield being tossed around here. The question about the Philippines goes to the point that someone can be an "enemy combatant" even if they're not captured on a literal battlefield with bullets flying. I'm not 100% on board with this, but Elena Kagan is no neo-con, so there seems to be a broad consensus on this point whether or not I agree.
The other issue goes to where you can lawfully detain someone who is picked up as an enemy combatant or otherwise. If you're holding someone relatively near the battlefield in Afghanistan where they were captured, you can legitimately argue "hey, it's dangerous here on the battlefield, we can't afford to have federal courts butting in." But if you arrest someone and then drag them halfway around the world to the prison of your choice, it's a lot harder to say "we're too busy here to participate in a habeas proceeding." Because you could have moved him to someplace less busy!

It will come down to (none / 0) (#8)
by dallas on Thu Apr 02, 2009 at 01:22:14 PM EST

the Supreme Court and the Enemy Combatant argument.

If you pick up a conspirator in France who is viewed as an Enemy Combatant you can't expect us to have a special prison in every country of the world. That's not my argument, that is the argument Obama will make. It will be up to the Supreme to decide like I said in my post above.


At least the Judicial Branch (none / 0) (#4)
by inclusiveheart on Thu Apr 02, 2009 at 12:51:39 PM EST

will continue from time to time to make itself relevant even if it seems that the other two branches are determined to exclude them from our government and the stewardship of our democracy.