Saturday, April 11, 2009

Obama Administration Will Appeal Court Ruling Which Allows Habeas Petitions for Certain Captives in Afghanistan

The Obama administration has announced that it will appeal a recent Federal District Court decision, which held that three captives at Bagram Air Force Base in Afghanistan could challenge their status as "enemy combatants" in United States courts. The District Court held that the Supreme Court's ruling in Boumediene v. Bush, which allows Guantanamo Bay detainees to file habeas corpus petitions, also gives Bagram detainees access to United States courts. The Obama administration opposes the petitions and has announced that it will appeal the District Court's ruling.

Civil liberties advocates blasted the Bush administration for subjecting Guantanamo Bay captives to indefinite detention and for denying them access to federal courts. The outrage over Guantanamo Bay among President Obama's liberal base and among the populations of certain United States allies (particularly in Europe) probably explains why President Obama's first set of executive orders included a provision directing the closure of the controversial detention facility.

The Obama administration, however, has taken the position that Supreme Court's reasoning in Boumediene does not confer habeas rights to Bagram detainees. This is the same argument that the Bush administration made.

This logic, however, could support the capture and transfer of individuals to Bagram, where they could face prolonged and indefinite detention and denial of access to United States courts. Bagram could become the functional equivalent of Guantanamo Bay.

Even though Bagram differs from Guantanamo Bay because Afghanistan (unlike Cuba) is the site of a war, the particular detainees subject to the District Court's ruling were allegedly captured outside of Afghanistan and taken there for detention. Supreme Court precedent, however, has allowed the government to deny habeas rights to individuals detained in the "theater of war." The District Court, however, held that the government could not prevail under this exception because its own conduct and decisions placed the petitioners within the vicinity of a war.

The Constitutional Law Blog has more coverage of the legal issues.


Fan of Dissenting Justice said...

Interesting Post.

Geoff Johnson said...

I'm not completely surprised by this and the other state secrets/detention/wiretapping statements and decisions coming out of the Obama administration of late, but obviously the lack of surprise doesn't make it any less of a problem. I am glad to see that you and a number of other legal scholars are speaking out forcefully against some of the recent stances the administration is taking on this key issues.

One of the real problems surrounding this which will bear watching is the tendency of many liberal Obama supporters to suddenly parrot the old arguments of Bush supporters. Things like, "hey, we don't see the intelligence/secret documents/etc., I trust Obama to get this right." That's obviously an incredibly dangerous argument, and many folks who voted for Obama got angry about it when Bush supporters used it, but are now far more comfortable with it that their guy is in office. While I voted for Obama and do "trust" him more than Bush, I still find such arguments extremely naive and unprincipled, and I think legal bloggers in particular need to be on the lookout for arguments from liberals/progressives that tend to enable abuses of executive authority by the Obama administration. Bagram or Guantanamo, Obama or Bush, we should still be opposing abuses of presidential power vociferously.

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