"The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.
In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release. (...)
The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.
The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.
The Obama administration's decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration's policy of indefinitely detaining "enemy combatants" without trials."
"Almost six years ago, Mr. Al Bakri, a citizen of a friendly nation, Yemen, was abducted by Respondents during a brief business trip to Thailand -- thousands of miles from any battlefield. Since their illegal seizure of Mr. Al Bakri, Respondents have secreted him between various locations known only to them in order to evade their legal obligations under domestic and international law. At their sole discretion, Respondents finally rendered Mr. Al Bakri unlawfully to Bagram Air Base, Afghanistan, where they continue to hold him subject to their complete jurisdiction and control."
I have no idea whether, under (what look to me to be) the most obvious precedents, someone like Amin Al Bakri is entitled to habeas rights. (In what follows, I am only discussing those prisoners at Bagram who, like Al Bakri, were not captured on or near a battlefield.) In Eisentrager, the Supreme Court held that the enemy aliens who had brought that case were not entitled to petition for habeas corpus. In Boumediene, the Court found that some Guantanamo detainees were. Here is the Court in Boumediene discussing Eigentrager:
"In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner:
“(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” 339 U. S., at 777.
Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ."
"The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s]." Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing "Regulations Governing the Trial of War Criminals" in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34–40.
In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review."
On this score, Bagram detainees are even worse off than detainees at Guantanamo, as far as I can tell. (From the NYT about a year ago: "Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said.") Insofar as this consideration motivated the Court, it would seem to support the extension of habeas rights to Bagram detainees.
"Other military and administration officials said the growing detainee population at Bagram, which rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part a result of a Bush administration decision to shut off the flow of detainees into Guantanamo after the Supreme Court ruled that those prisoners had some basic due-process rights."
If I were either the Obama administration or the Court, I would hold that anyone our government detains for any substantial period of time (say, a couple of weeks -- long enough to exclude cases in which, say, DEA agents capture someone in Colombia and turn that person over to the Colombian government ASAP, but not longer than necessary) has the right to file for habeas corpus unless s/he was detained in the course of military conflict. I'm not sure how the boundaries between military conflict and everything else should be defined, but I think it cannot possibly extend to the kidnapping of people over two thousand miles away, in a peaceful country.