Pretty soon it'll be ObamaLaw too, but a federal judge has ordered access to U.S. courts for three long-time detainees held at the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan. Judge John D. Judge Bates writes that the case "closely parallels" the issues that led the Supreme Court, in its seminal Boumediene decision, to grant the right of habeas corpus review to the Gitmo detainees. Bates writes:
Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene -- they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be "enemy combatants," a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the "practical obstacles" inherent in resolving a Bagram detainee's entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war.
The constitution says this about habeas: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Boumediene, as you'll recall, invalidated a clause in the Military Commissions Act of 2006 that stripped from the federal courts their ability to hear habeas petitions from Guantanamo detainees. The government argued in this case that Boumediene's invalidaton was narrowly targeted ("as applied") to the facts of that case, not to detainees elsewhere, like at Bagram. (There was a long and arcane discussion about the status of GItmo as a U.S. territory and whether it was subject, inter alia, to district court jurisdiction.)