Patterico's Pontifications


Bagram is No Guantanamo

Filed under: Obama,Terrorism,War — DRJ @ 3:24 pm

[Guest post by DRJ]

The DC Circuit court today upheld the Obama Administration’s argument that, unlike Guantanamo detainees, foreign nationals being held by the American military in Bagram, Afghanistan, cannot assert habeas rights in U.S. courts:

“In a major victory for the Obama Administration’s detention policy, the D.C. Circuit Court ruled on Friday that foreign nationals held at a U.S. military prison at Bagram airbase outside of Kabul, Afghanistan, do not have a right to challenge in U.S. courts their continued imprisonment. The ruling overturned a federal judge’s decision that the Supreme Court’s ruling two years ago allowing habeas challenges by prisoners at Guantanamo Bay extends to Bagram, at least for non-Afghan foreign nationals captured outside of Afghanistan and taken there for detention. The three-judge panel was unanimous in Maqaleh, et al., v. Gates (Circuit docket 09-5265). The issue is likely to be taken to the Supreme Court by detainees’ lawyers, but review there is no certainty.

The case, involving two Yemenis and a Tunisian, poses a broadly significant test of how far beyond U.S. shores a constitutional right to challenge U.S. military detention extends — an issue that potentially affects U.S. bases virtually around the globe. Chief Circuit Judge David B. Sentelle wrote the 26-page decision Friday, joined in full by Circuit Judge David S. Tatel and Senior Circuit Judge Harry T. Edwards. Sentelle is a conservative jurist; the other two are liberals. Their ruling overturned a decision by a judicial moderate, District Judge John D. Bates.”

The Court introduced a three-prong test to decide when habeas rights attach outside United States territory: “[T]he process for deciding who is to be detained, the nature of the site where detention occurs, and practical problems of having courts decide the validity of detention.” The link discusses how each prong is analyzed and applied in this case.

The Court also explicitly recognized that civilian court trials and rules “hamper the war effort and bring aid and comfort to the enemy,” and that future U.S. governments may decide to put detainees in foreign places to keep them outside the reach of American courts.

When questioned about this today, Press Secretary Robert Gibbs said the Administration’s lawyers are working on a response. Any chance the lawyers will mention the irony of seeing a Bush policy hailed as an Obama Administration victory?


7 Responses to “Bagram is No Guantanamo”

  1. The Marxist-Leninist’s support for such measures shows just how dangerous it was to allow the Bush administration any leeway on any issue, but this one in particular. They can basically pick up anyone at random and disappear them to their black hole in Afghanistan or wherever. Soon they will be saying they have the power to put out contracts to kill at will.

    duh (0971fe)

  2. When was the last time you refreshed that tin-foil?

    AD - RtR/OS! (9200e9)

  3. duh – Could Wehrmacht privates who were captured in France sue in US courts on a habeas case? Could Luftwaffe pilots who were shot down over Britain?

    Have Blue (854a6e)

  4. Only if they were battling Marxist-Leninist’s when killed/wounded/captured; and we know how they would be treated on the Eastern Front, don’t we?

    AD - RtR/OS! (9200e9)

  5. AD – Interesting that you mention that. The fact is that, while there were exceptions, for the most part the only country that has ever made a real effort to follow Geneva protocols with regard to American soldiers captured as POW’s was Germany during WWII. And a big part of the reason was to guarantee that Germans would be well treated in return. On the East Front both sides knew that the other would not treat their prisoners well and so did not bother treating those they captured well.

    There were Canadian units that did not take a single German prisoner from just after the Battle of Carentan until they reached the German border. (IIRC it was at Carentan that Canadian prisoners were massacred by Germans.)

    Have Blue (854a6e)

  6. “The right of habeas corpus allows prisoners to ask a court to determine whether they are being lawfully imprisoned. Recently, this right has been denied to those deemed enemy combatants. Barack Obama strongly supports bipartisan efforts to restore habeas rights.”–New Messiah Campaign “promise”

    Dave Surls (5890df)

  7. As most of you know, Habeas Corpus rights have never been “given” to enemy combatants– especially unlawful enemy combatants, such as ones not in a regular army and not wearing uniforms, etc..

    The Left’s amnesia on this point is infuriating, and now their hypocricy is stunning– Bagram is good as a de facto Gitmo, but let’s still be against Gitmo?– is that really their position?

    It only proves that they’ve been willing to subvert out legitimate war efforts in the past, only so they could regain political power for the present.

    & now that they have that power, of course they are returning to the way we’ve done war in the past.

    And all the talk about “criminal in chief Bush” must be forgotten.

    KB (c0d5bb)

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