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Old 04-02-2009, 02:18 PM   #1
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Arrow Detention at Afghan Base Is Subject to U.S. Courts

Detention at Afghan Base Is Subject to U.S. Courts

The New York Times
April 3, 2009

WASHINGTON — A federal judge on Thursday ruled that some prisoners held by the American military in Afghanistan have a constitutional right to challenge their imprisonment in United States civilian courts, delivering a rebuke to a claim of unfettered executive power advanced by both the Bush and Obama administrations.

In 53-page ruling, Judge John D. Bates of the United States District Court for the District of Columbia said that three detainees at the United States Air Force base at Bagram are “virtually identical” to detainees at the Navy base at Guantánamo Bay, Cuba, and so they have the same legal rights that the Supreme Court last year granted prisoners held there.

All three detainees are non-Afghan citizens who said they were captured outside Afghanistan and have been imprisoned for years without trials. Arguing that they are not enemy combatants, the detainees want a judge to review the evidence against them and order their release under the right known as “habeas corpus.”

Judge Bates’s decision closely tracked the Supreme Court’s reasoning in its landmark 2008 decision that prisoners at Guantánamo have a constitutional right to habeas corpus.

The constitutional right of habeas corpus was “forged to guard against” executive abuses like the “arbitrary exercise of the government’s power to detain,” wrote Judge Bates, who was appointed by former President George W. Bush.

Judge Bates’ ruling was limited, however. He said that whether any particular overseas detainee has habeas corpus rights would depend on a case-by-case analysis of several factors, including citizenship, location of capture, length of detention, and the degree to which the United States military has total control over its prisons.

And he did not rule that a fourth prisoner — also captured outside Afghanistan, but holding Afghan citizenship — had a right to habeas corpus, citing concerns that such a ruling could lead to friction with the Afghan government. Instead, the judge asked for additional briefings on that detainee’s case.

Of the 600 detainees at Bagram, the majority of them are believed to be Afghans, although the United States has not released a detailed accounting of their identities and nationalities. Tina Foster, an attorney representing the Bagram detainees, said there are “dozens” of other known cases in which non-Afghans captured abroad were transported to Bagram over the years, but it is not clear how many are still there.

Judge Bates’ decision rejected the executive branch’s arguments that federal courts have no jurisdiction to hear lawsuits filed on behalf of foreign detainees in Afghanistan. That position was first articulated by the Bush administration. In February, the Obama administration told Judge Bates that it had the same view.

Dean Boyd, a Justice Department spokesman, said the administration was still reviewing the decision.

The ruling could complicate the Obama administration’s efforts to formulate a policy about terrorism detainees. In one of Mr. Obama’s first acts as president, he ordered the prison in Guantánamo Bay closed within a year and began a review of the evidence against each of the roughly 240 detainees still being held there. But Mr. Obama pointedly did not extend that policy to other military detention facilities around the world, most notably Bagram.

David Rivkin, a former associate White House counsel in the George H. W. Bush administration, called the ruling an “exceedingly bad decision which proves the worst fears that people like myself had” after the 2008 Supreme Court decision granting habeas rights to Guantanamo detainees.

Mr. Rivkin predicted that Judge Bates’ ruling would be overturned on appeal, but warned that if it did not, then “the United States’ ability to detain enemy combatants for the duration of hostilities worldwide” will be “gravely undermined.”

But Ms. Foster, who praised Judge Bates’ decision as “a very good day for the Constitution and the rule of law,” said that the Bagram ruling means that the changes to the Bush administration’s detention policies must go beyond merely closing Guantanamo. The decision, she said, means that habeas corpus “extends beyond Guantanamo to any place where the United States seeks to hold individuals in a legal black hole.”
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Old 04-02-2009, 04:14 PM   #2
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If we're to claim any sort of moral high ground in this conflict, we as a coalition, including the United States, must seek to exemplify the standards and principles that we espouse as desirable in other nations. First and foremost must be an unimpeachable adherence to the rule of law and the principles it defends. 'Not yet illegal', or 'pending judicial ruling' do not mean certain courses of action are alright to pursue. Those of us serving in the military do so at the behest of our national governments, who in turn represent and answer to the populations of our respective nations. Society's collective conscience has shown a distaste and revulsion towards the sorts of legally and morally ambiguous situations demonstrated in the treatment of detainees in the war on terror.

I'm pleased to see U.S. federal courts finally making substantive rulings on these issues in the favour of the rule of law. If these detainees do not fit in any current legal category, that needs to be determined, ruled on, and determinations reached as to what exactly that means. That's the only way that we as citizens can ultimately have oversight as to what the government is doing in our name with regards to these detainees.
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