Since coming to power in a blaze of reforming glory, promising to close Guantánamo within a year, stop the CIA from running offshore torture prisons, and restore the Geneva Conventions to prisoners seized in wartime, the Obama administration has proceeded to make a number of poor decisions in relation to its predecessors’ reviled "War on Terror" policies.
One was the decision to invoke the state-secrets privilege to quash a lawsuit against Boeing subsidiary Jeppesen for its role as the CIA’s travel agent in a case brought by a number of prisoners subjected to "extraordinary rendition," although this was understandable if the floodgates were not to be opened with regard to everyone involved in the Bush administration’s lawless policies rather than, say, the senior officials who authorized the crimes. Another, I believe, was the refusal to substantially redefine the terms of reference for "enemy combatants," while the administration was scoring a propaganda point by dropping the use of the term.
There are, of course, many challenges to come – not least, the question of prosecutions for senior officials (from President Bush down), which Obama is clearly unwilling to tackle – but so far the poorest decision came in February, when, in its first response to habeas corpus claims filed on behalf of four prisoners held in the U.S. prison at Bagram airbase, the Justice Department responded to a request by District Court Judge John D. Bates, asking if the new administration would like to review the position maintained by the Bush administration – essentially, that the prisoners in Bagram have no rights – by stating simply, in a one-paragraph response, "This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position."
What made this decision so poor was that the situation in which these men found themselves was essentially the same as that experienced by the prisoners in Guantánamo. The men in question – Redha al-Najar, a Tunisian seized in Karachi, Pakistan; Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand; Fadi al-Maqaleh, a Yemeni; and Haji Wazir, an Afghan businessman seized in the United Arab Emirates – were all captured between five and seven years ago and transferred to Bagram, where only an administrative accident – or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo – prevented them from joining the 779 men in the offshore prison in Cuba.
Moreover, what made the Bagram prisoners’ situation even worse was that, whereas the prisoners in Guantánamo had, over the years, secured habeas corpus rights (the right to challenge the basis of their detention in a court) and the right to meet with and be represented by lawyers, none of these privileges had been extended to the prisoners in Bagram. Their isolation meant that, increasingly, the prison in Afghanistan – which was, and is, under the complete control of the U.S. military – was nothing less than Guantánamo’s dark mirror, or, as Judge John D. Bates suggested in a review of the men’s cases in January, "a ‘black hole’ for detainees in a ‘law-free zone.’"
At the time, Judge Bates was only hinting that he thought it might be necessary to extend habeas rights to these particular prisoners in Bagram. In February, of course, the Obama administration thought that it had crushed his nascent dissent, when it declared, with an imperiousness that was reminiscent of Dick Cheney and David Addington, that the reach of the law did not extend to Bagram.
However, last Thursday, after studying closely the differences between the prisoners held at Bagram – in other words, between foreigners captured in other countries and "rendered" to Bagram, Afghans captured in other countries and "rendered" to Bagram, and Afghans captured in Afghanistan – Judge Bates ruled [.pdf] that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, "the detainees themselves as well as the rationale for detention are essentially the same."
What this involved, to recap on Boumediene, was that the government had no right to revoke the Suspension Clause of the U.S. Constitution, under the Military Commissions Act of 2006, to prevent the prisoners from seeking "the protection of the writ of habeas corpus," because, as the Supreme Court made clear, "At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest."
The Supreme Court also noted that "the judiciary – not the executive – must decide when and where the Suspension Clause applies," and, also drew on a case from 1803, which stated, "The writ of habeas corpus itself is an indispensable mechanism for monitoring the separation of powers. … The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain."
Judge Bates added that the military’s justification for holding the prisoners at Bagram involves a review process that is both "inadequate" and "more error-prone" than the tribunal process used at Guantánamo (which has, of course, been condemned by former officials who worked on it, including, in particular, Lt. Col. Stephen Abraham), and concluded that the U.S. military’s control over Bagram "is not appreciably different than at Guantánamo."
His précis of the review process was, in fact genuinely disturbing, as he quoted from a government declaration which stated that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does not even allow the prisoners to have a "personal representative" from the military in place of a lawyer (as at Guantánamo), and that "Bagram detainees represent themselves." In addition,
"Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an ‘enemy combatant’ designation – so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.
"This Court need not determine how extensive the process must be to stave off the reach of the Suspension Clause to Bagram. It suffices to recognize that the UECRB process at Bagram falls well short of what the Supreme Court found inadequate at Guantánamo."
Judge Bates also explained that, although Bagram is "located in an active theater of war," and that this may pose some "practical obstacles" to a court review of their cases, these obstacles "are not as great" as the government suggested, are "not insurmountable," and are, moreover, "largely of the executive’s choosing," because the prisoners were specifically transported to Bagram from other locations.
As with the Supreme Court’s ruling in Boumediene, Judge Bates was also concerned by the length of time that the prisoners have been held without an adequate review of their cases. As he explained, "the Supreme Court’s observation in Boumediene is equally powerful here: ‘the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.’"
Nevertheless, although Judge Bates ruled that the three foreign prisoners could challenge the basis of their detention, he refused to extend habeas rights to the Afghan prisoners who make up the majority of the 670 or so prisoners held in Bagram, agreeing with the government’s claim that to do so would cause "friction" with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government. As a result, he also refused to extend habeas rights to Haji Wazir, even though he was captured outside Afghanistan, although he did not dismiss his claim outright, and wondered whether there was any other mechanism whereby he might seek habeas relief.
On SCOTUSblog, Lyle Denniston noted that this part of the ruling "seemed to suggest a potential impact of the ruling for detainees in places other than Bagram," as Judge Bates stated that one possible route, about which he requested further briefing, involved ascertaining whether Congress "usurped" the constitutional authority of the federal courts, in the Military Commissions Act of 2006, when it prohibited habeas claims by any prisoner in U.S. custody, anywhere in the world, who was held as an "enemy combatant."
In conclusion, then, this was an extraordinarily important result for those who have been struggling for years to secure rights for the prisoners in Bagram – in particular, Tina Foster and Barbara Olshansky of the International Justice Network, who first filed the cases in October 2006. Judge Bates gave the government until April 23 to respond to his question about Congress usurping the federal courts’ constitutional authority, and gave Haji Wazir’s lawyers until May 7 to respond to the government’s brief. As for Redha al-Najar, Fadi al-Maqaleh, and Amin al-Bakri, their cases now move to a detailed review, with Judge Bates taking the cases of al-Najar and al-Maqaleh, and Judge Ellen Segal Huvelle taking the case of al-Bakri.
Expect sparks to fly, as, in addition to being held for up to seven years without charge or trial, it appears that some, if not all, of these men passed through a secret prison network in Afghanistan, which involved brutal torture, before they even arrived at Bagram.