Do Bagram Detainees Have Habeas Rights? Gov't Says No

The Obama administration says a lower court got it wrong when, for the first time, it granted habeas corpus rights to detainees at the Bagram Airbase in Afghanistan. In an appeals court ruling filed late today, Solicitor General Elena Kagan argues that long-term detainees held at Bagram, because of their status as legitimate enemy combatants, do not have the right to challenge their detention in federal court. The precedent set by Boumediene v. Bush, she argues, does not apply to the Bagram detainees because habeas rights do not apply to non U.S. citizens detained as enemy forces in a country where the U.S. was engaged in "active hostilities."

US-opening-brief-as-filed.pdf

In April, in a case involving four non-Afghan long-term detainees who were not prisoners of war, Judge John D. Bates held that Guantanamo and Bagram were, to paraphrase the president in another context, similar enough. Both were full of prisoners about whom legitimate questions had been raised as to their status; in both cases the way for these prisoners to challenge their status was weak and unfair; the "objective degree of control" exerted by the U.S. government over the two facilities was similar; and it did not matter much that Bagram is located in an active war zone as authorized by Congress in 2002.

The filing comes a day after the government announced new procedures for Bagram detainees to challenge their status, although the details remain unclear. The goal, it seems, was to implicitly remove one of the key reasons why Bates ruled in favor of the detainees, which was that the prisoners lack access to any recourse to challenge their detentions.

In the brief, the administration disputes Bates's contention that the U.S. control over GTMO is fundamentally similar to its control over the Bagram facility.  For one thing, they argue, the government's relationship with Afghanistan is different than its relationship with Cuba. Remember: the Supreme Court in Boumediene held that habeas rules applied because the  U.S. government exercised "de facto sovereignty" at the GTMO base.   the U.S., according to the government, does not exercise the same degree control over Bagram. It shares the facility with other countries participating in military engagements, Bagram is subject to numerous attacks by hostile forces, and it is located in the country where a legal war is being fought. The 600 or so prisoners held at the long-term detainment facility at Bagram are not ghosts, the administration says. They're registered the prisoners with the International Red Cross, and they are subject to regular review.

The problem, as Judge Bates noted, was that the detainees claimed they were not citizens of Afghanistan and not captured in Afghanistan.  In Johnson v. Eisentrager, the Supreme Court invalidated the detention of non-German detainees as U.S. detention facilities in Germany.  And though Boumediene explicitly limited itself to GTMO detainees, Bates reasoned that there was no prohibition from applying its principles to other situations, even if the Supreme Court hadn't done so.
 
Here's the government's argument: "Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan. No court has ever extended the Great Writ so far; the district court's reading of Boumediene is wrong. The court therefore erred in declaring Section 7(a) of the Military Commissions Act unconstitutional as applied to these enemy detainees. The court's reading reverses longstanding law, imposes great practical problems, conflicts with the considered judgment of both political branches, and risks opening the federal courts to habeas claims brought by detainees held in other theaters of war during future military actions."

Essentially, the government claims that Boumediene's analysis of the citizenship claims of the detainees weighed against a finding that they can claim habeas rights and instead based their ruling on a variety of other factors like the procedures afforded to detainees to challenge their status and the location of the prison.

Here again the government invokes its new procedures -- even if the Court is sympathetic to a claim that Bagram and GMTO are similar in many ways, the long-term detainees at Bagram are treated with far more respect (in essence) that the GTMO detainees ever were. Under the new procedures, three officers will review each detainee's case, and a "personal representative" (not necessary a lawyer) with access to classified information will be instructed to argue the facts from the perspective of the detainee.  The detainees will be able to challenge evidence, question the government's witnesses, and provide new evidence that the government will be compelled to investigate.  In theory.

Granting habeas rights to Bagram detainees would be baaaad, the government concludes. "This is the paradigmatic case in which lower courts should tread cautiously in extending a new and unprecedented Supreme Court decision beyond the specific context in which it was announced."

Basically, the administration continues to perpetuate the definition of a class of detainees originally constructed by lawyers for President Bush -- those who aren't prisoners of war and for whom the possibility exists of indefinite detention because they're allegedly a constant threat to the United States. The difference, in the eyes of the Obama administration, is that these folks are going to be better treated and given regular (if not formal) access to a way to challenge their status. We'll see. The detainees here are represented by a stellar cast of lawyers; when they file their response brief, I'll post it. The date for arguments hasn't yet been set.