DC Circuit dismisses Bagram detainee habeas petitions

The US Court of Appeals for the District of Columbia Circuit ruled May 21 in al-Maqaleh v. Gates that detainees held at Bagram Air Force Base in Afghanistan cannot bring habeas corpus challenges in US courts. The circuit court reversed the district court’s ruling, which allowed habeas challenges by three Bagram detainees pursuant to the Supreme Court’s test in Boumediene v. Bush. Chief Judge David B. Sentelle, delivering the opinion of the three-judge panel, stated that the district court underestimated the significance of Bagram being located in an area of armed conflict, which differentiates the defendants’ jurisdictional status from those detained at Guantánamo Bay. The court held that the current case is more comparable to 1950’s Johnson v. Eisentrager, where the Supreme Court ruled that US courts had no jurisdiction over war criminals held in a US-administered German prison.

From Jurist, May 21. Used with permission.

See our last post on the detainment scandals.

NYT weighs in on Bagram decision
In a May 31 editorial, “Backward at Bagram,” the New York Times takes some pointed criticisms of the Court of Appeals’ decision striking down the Bagram detainees’ habeas corpus rights:

What makes the ruling especially distressing is that the extravagant claim of executive power upheld by the court—to create a law-free zone at the Bagram lockup—was dreamed up by Mr. Bush and subsequently embraced by President Obama. The appellate court ruled that there was no right to federal court review for the detainees, who say they were captured outside of Afghanistan, far from any battlefield, and then shipped to Bagram to be held indefinitely in harsh conditions.

The decision overturns a narrowly focused 2009 ruling by Judge John Bates of the Federal District Court. His decision was based on the 2008 Supreme Court decision that granted prisoners at Guantánamo Bay, Cuba, a federal court review of their detention [Boumediene]. Judge Bates extended the Supreme Court ruling to non-Afghan detainees at Bagram who had been held for more than six years — a small slice of the 600 to 800 prisoners there.

Judge Bates recognized that Bagram is in an active theater of war, and habeas corpus traditionally has not applied to detainees abroad in zones of combat. But his ruling also recognized that the logic of exempting prisoners of war from judicial review cannot apply to a detainee who is imported to the war zone…

To justify overruling Judge Bates, the appellate judges…dusted off a precedent from 1950 to suggest that granting habeas corpus rights to a small number of Bagram detainees would somehow “hamper the war effort, and bring aid and comfort to the enemy.”

Actually, military commanders and Mr. Obama himself have argued that ensuring fair treatment of detainees advances national security interests by denying Al Qaeda and the Taliban an effective recruiting tool.

The 1950 case, Johnson v. Eisentrager, bears further scrutiny. It concerned 21 German nationals who were apparently serving as military advisors or “volunteers” to the Japanese. It seems unclear even to the Supreme Court justices exactly whose command they were under, and it was deemed “immaterial.” They were tried by a US military commission in Nanking “with express consent of the Chinese Government.” Because they had remained in arms after the German surrender of May 1945, they were convicted of violating the laws of war. They were then transfered to the US-administrated Landsberg Prison in Germany, from where they launched their case.

Does this really apply to the Bagram situation? As noted, there are far more than 21 detainees being held at Bagram, some were not even detained in Afghanistan, and many (probably most) were never collaborating with the Taliban or al-Qaeda to anything approaching the degree that the Germans in the Eisentrager case were collaborating with the Japanese. Smells a little like taking a morally stark case to give the US carte blanche to deny fundamental rights indefinitely.

The editorial also noted:

Under the pressure of a lawsuit, the administration in January provided the names of detainees at the notorious Bagram prison. But it still resists disclosing vital details, including their citizenship, the locations and circumstances of their capture, and how long they have been held. Further, it has yet to release salient details about how the newly revised military process for reviewing the validity of detentions is working in practice. We await the administration’s accounting.

The same day, Times columnist Clyde Haberman offered a Memorial Day meditation on the decision:

What might the fallen soldiers and sailors have felt about a cry heard in the land to treat terrorists not as vile criminals but as “enemy combatants” — in effect, as soldiers themselves?

Well, “enemy combatants” aren’t soldiers—they are a legal fiction created by the Bush administration to avoid having the Geneva Conventions applied to its actions. We’re heartened that Haberman rejects the “enemy combatant” terminology and favors criminal charges to military detainment. But why are these the only acceptable terms to critique the policy? Who will point out that many of the Bagram detainees are probably neither “enemy combatants” nor “vile criminals,” but hapless young Afghans who got caught in the US military’s indiscriminate sweeps?

Bill Weinberg says:

June 3, 2010 at 5:23 am

NYT weighs in on Bagram decision
In a May 31 editorial, “Backward at Bagram,” the New York Times takes some pointed criticisms of the Court of Appeals’ decision striking down the Bagram detainees’ habeas corpus rights:

What makes the ruling especially distressing is that the extravagant claim of executive power upheld by the court—to create a law-free zone at the Bagram lockup—was dreamed up by Mr. Bush and subsequently embraced by President Obama. The appellate court ruled that there was no right to federal court review for the detainees, who say they were captured outside of Afghanistan, far from any battlefield, and then shipped to Bagram to be held indefinitely in harsh conditions.

The decision overturns a narrowly focused 2009 ruling by Judge John Bates of the Federal District Court. His decision was based on the 2008 Supreme Court decision that granted prisoners at Guantánamo Bay, Cuba, a federal court review of their detention [Boumediene]. Judge Bates extended the Supreme Court ruling to non-Afghan detainees at Bagram who had been held for more than six years — a small slice of the 600 to 800 prisoners there.

Judge Bates recognized that Bagram is in an active theater of war, and habeas corpus traditionally has not applied to detainees abroad in zones of combat. But his ruling also recognized that the logic of exempting prisoners of war from judicial review cannot apply to a detainee who is imported to the war zone…

To justify overruling Judge Bates, the appellate judges…dusted off a precedent from 1950 to suggest that granting habeas corpus rights to a small number of Bagram detainees would somehow “hamper the war effort, and bring aid and comfort to the enemy.”

Actually, military commanders and Mr. Obama himself have argued that ensuring fair treatment of detainees advances national security interests by denying Al Qaeda and the Taliban an effective recruiting tool.

The 1950 case, Johnson v. Eisentrager, bears further scrutiny. It concerned 21 German nationals who were apparently serving as military advisors or “volunteers” to the Japanese. It seems unclear even to the Supreme Court justices exactly whose command they were under, and it was deemed “immaterial.” They were tried by a US military commission in Nanking “with express consent of the Chinese Government.” Because they had remained in arms after the German surrender of May 1945, they were convicted of violating the laws of war. They were then transfered to the US-administrated Landsberg Prison in Germany, from where they launched their case.

Does this really apply to the Bagram situation? As noted, there are far more than 21 detainees being held at Bagram, some were not even detained in Afghanistan, and many (probably most) were never collaborating with the Taliban or al-Qaeda to anything approaching the degree that the Germans in the Eisentrager case were collaborating with the Japanese. Smells a little like taking a morally stark case to give the US carte blanche to deny fundamental rights indefinitely.

The editorial also noted:

Under the pressure of a lawsuit, the administration in January provided the names of detainees at the notorious Bagram prison. But it still resists disclosing vital details, including their citizenship, the locations and circumstances of their capture, and how long they have been held. Further, it has yet to release salient details about how the newly revised military process for reviewing the validity of detentions is working in practice. We await the administration’s accounting.

The same day, Times columnist Clyde Haberman offered a Memorial Day meditation on the decision:

What might the fallen soldiers and sailors have felt about a cry heard in the land to treat terrorists not as vile criminals but as “enemy combatants” — in effect, as soldiers themselves?

Well, “enemy combatants” aren’t soldiers—they are a legal fiction created by the Bush administration to avoid having the Geneva Conventions applied to its actions. We’re heartened that Haberman rejects the “enemy combatant” terminology and favors criminal charges to military detainment. But why are these the only acceptable terms to critique the policy? Who will point out that many of the Bagram detainees are probably neither “enemy combatants” nor “vile criminals,” but hapless young Afghans who got caught in the US military’s indiscriminate sweeps?

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