Obama Administration Adopts (At Least for Now) The View that Bagram Detainees Have No Habeas Rights:
The BLT has the scoop. From the statement of Acting Assistant Attorney General Michael Hertz:
"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."As the BLT indicates, though, "President Obama has ordered a task force led by the attorney general and the defense secretary to review overall policy on detainees. A report is due in six months. A Justice Department spokesman declined to speculate on whether the government's position may change following the review." Stay tuned.
I fail to see the material difference between Bagram and Gitmo, though I'm sure Judge Randolph could explain it to me.
Perhaps there's a lesson in here somewhere?
Sure. Because this is something he couldn't possibly have studied before he took office. You know, while he was a Senator for four years. But it would have been hard to run on Hope 'n' Change if your policies were the same as the guy in office.
it's a point i've made to my fellows on the right for months.
i'd except obama, as the dem candidate to talk the talk against buschco policies, while RUNNING for office. it is an entirely different thing to actually follow through and dismantle all the secret, icky, aggressive crap we do (and need to do) to fight the war on terror.
Obama is not an idiot. He is quite aware of the constitution and the bill of rights, and also that it aint a suicide pact, as has been noted.
there are a lot of things i fear from the obama admin. But getting all squishy with terrorists aint one of them, all campaign rhetoric aside.
if dennis kucinich had been elected, i'd worry.
Although I do not have a fully formed and researched theory of my own to distinguish between Guantanamo and Bagram -- and I have not yet read the government brief or the Bagram petitions -- I am instinctively less comfortable with U.S. courts exercising habeas jurisdiction over combatant detention in a battlefield theater. (If I consider hypothetical situations such as a purported Al Qaeda operative being snatched in the Philippines and renditioned to Bagram, I get much less certain.)
My impression of Boumediene v. Bush was that the majority opinion there ultimately rested on a finding that the United States effectively has sovereignty over Gitmo because of its particular history. I don't see how that necessarily extends to wherever U.S. military forces fight and fly the flag.
Overall, since I haven't made up my own mind completely, I am curious about how this develops.
Or is it time for a new narrative yet? Next time the NetRoots are in opposition, it might be useful to remember this moment as strategy is framed, so as to look less ridiculous.
Good, cuz that's where the gitmo folks are goin.
I fail to see the material difference between Bagram and Gitmo, though I'm sure Judge Randolph could explain it to me.
No need to wait. We have a perpetual lease on Guantanamo under the 1903 Cuban American Treaty giving us sovereign control. We have temporary control of Bagram, but no sovereign treaty rights. It's a huge distinction.
Yeah- huge. Totally, completely, 1000% convincing.
If we demand Senators be given full access to classified materials, Aubrey is going to throw a fit about Leahy and Feingold.
OK, I get it. As long as we have a *perpetual* lease, we bound by the Constitution, the Geneva Convention, International Law, and all that jazz. If we just have a *term* lease, we can do whatever the hell we want.
Wow.
Thanks for clearing that up for me.
It's simple - Guantanamo is secure from external attacks. Bagram is in az battle zone and subject to attacks with intent of rescuing or killing prisoners.
In other words, lawfare has caused us to take the stupid choice.
Why am I not surprized?
its not hypothetical, this is from scotusblog
A straightforward solution to that problem might be to build military detention facilities in, say, West Texas or Nebraska. We certainly have a history of keeping enemy prisoners in prior wars within our own country.
The proper answer to the domestic NIMBY demagoguery is, shut up and make a patriotic sacrifice.
So what happens if the US is invaded, and some of the invading forces are taken prisoner?
We keep them as securely as possible, of course.
In the country lockup until they make bail.
Military EPW camps traditionally don't release prisoners on bail, AFAIK. Even the Guantanamo detainees who have had habeas hearings have not been released on bail.
Ex Parte Quirin, of course, came to the Supreme Court on a habeas petition.
The Quirin soldiers were being punished as unlawful combatants, not being held as POWs. However, some POWs were held on U.S. soil during WWII. Though very few brought habeas petitions, this seems to have been because doing so would have been hopeless on the merits, not because there was any jurisdictional bar to a court hearing their petitions.
At least one POW, captured in Italy and held in the U.S., did bring a habeas petition, and his case made it to the Ninth Circuit. In re Territo, 156 F.2d 142 (9th Cir. 1946). The POW claimed to be a U.S. citizen. The court upheld his detention on the merits, without deciding whether he was a citizen or not, and without expressing any concerns about its jurisdiction to hear a habeas petition from an enemy POW held on U.S. soil.
Compared to...?
In attempting to distinguish the situation in Eisentrager from Gitmo, the Boumediene Five distinguished Gitmo from Bagram:
Of course, if the Boumediene Five can rewrite the habeas corpus common law and the Constitution to assert control over Gitmo, I see nothing keeping them from rewriting or reversing Eisentrager to extend judicial control over the Afghan battlefield.
Even the Obama DoJ can so far see that this is an exceedingly bad idea.
Hmmm... in World War II, one of them escaped and hid out for many days in what is now my back yard.
No thanks. Guantanamo was a great solution until SCOTUS blew it up.
No thanks.
Hmmm... Since I have no problem with detention facilities being sited in my state, guarded with reasonable care by our military, I guess I'm just more patriotic than you are.
We are, after all, at war. That means we civilians must be willing to make sacrifices and take risks. In practice, I think the risks of housing a few hundred prisoners within our large and powerful nation would be quite modest.
Yeah, right. It has been a very long time since I volunteered for and went to Vietnam, so my patriotism points must be running out.
Geez
Nevertheless, it is hard to find a better site for holding these guys than Guantanamo.
BTW... you are of course right that we civilians should be willing to sacrifice because we are at war. The problem with housing prisoners here rather than Guantanamo is simple: it's dumb.
Putting aside some problems with this comparison, I think it does highlight a weakness of the Court's habeas jurisprudence. The suspension clause is in Art. I, Sec. 9. The Constitution is structured so that Art. I, Sec. 8 grants powers to Congress and Art. I, Sec. 9 places restrictions on those powers. For example, Art. I, Sec. 8, cl. 1 gives Congress power to impose duties and imposts, but Art. I, Sec. 9, cl. 1 restricts that power when it comes to the importation of slaves. Similarly, Art. I, Sec. 8, cl. 1 gives Congress power to lay and collect taxes, but Art. I, Sec. 9, cl. 4 restricts that power for direct taxes. Etc.
Structurally, then, the suspension clause is a restriction on government power. This means that the writ should apply wherever and whenever the government acts. Just as Congress cannot pass a bill of attainder against Osama bin Laden, so it can't suspend the writ once he's captured.
The situtation with regard to Guantanamo is what it is. The courts predictably ruled against the government on that one after a drawn-out series of cases. It is no secret that the primary reason for siting the facility in Gitmo was to avoid judicial review. We can certainly find other secure sites stateside, now that the play for a law-free-zone there has lost in court.
In the context of Bagram, if you read back over this thread you will see that I raised the possibility in response to another commenter's concern that the site of Bagram within Afghanistan is inherently insecure. If that is the case, I suggested West Texas or some similar place as a pragmatic alternative.
BTW, my questioning of your relative patriotism was not serious -- unless you seriously argue that you are too afraid of the risks of housing several hundred prisoners securely somewhere within our borders, where we routinely incarcerate millions. I don't really think you are unpatriotic; I just think your were BSing about your purported fear. So in that sense, I apologize for the remark about your patriotism, and in any case I respect your military service and its motivation.
It may be unfortunate, but have no fear; the replacement for Gitmo is a safer, gentler place named Bagram Theater Internment Facility.
‘Theater’, as in kabuki —the Army is anything if not prepared.
On a more serious note, that is entirely a product of the SCOTUS. From a humanitarian standpoint it would have been better if internment was in the US and the Justices butted out of the ‘techniques’ debate. What happens in Iraq will never be known. . . and that's not good.
Yep... in the struggle for power between the executive and the court, GTMO was rubbing in SCOTUS' faces. So I guess we might expect them to make a self-serving, if damaging to the war effort, ruling.
Lawyers are, as a class, morons.
Not true! They just speak with forked tongues:)
But evidently you have class. Or at least a class, which is a start.
At this point, without educating myself more, I am not making any predictions about how this might turn out if it reaches the Supreme Court. But I don't read Justice Kennedy's opinion as a sign he would extend general habeas jurisdiction to Bagram.
I do disagree that Boumediene was either "self-serving" or "damaging to the war effort."
Ironically, if the war were just beginning and Gitmo had no history of being a scene of interrogation abuse or a hideout from the rule of law, it might make sense to use it today purely for purposes of physical security. But that history, comprising a prime recruiting poster for Al Qaeda, cannot be undone. Even the Bush administration stopped shipping significant numbers of detainees there from Bagram once the legal handwriting was on the wall a few years ago.
Operating Guantanamo now is a net negative for the national security interests of the United States. It did not have to be that way. Talk about "dumb."
Yeah. I hadn't gotten to Feingold yet.
You have a problem with objecting to our elected morons leaking classified stuff?
Or is it only a problem if you think you can use it to get to Bush?
That is hardly a legal argument.
It is also flawed. GTMO became notorious not for its unique abusive tactics (it had few), but because it was a visible symbol. In other words, it became an Al Qaeda recruiting poster (if it really did) because of the actions of anti-Guantanamo activists.
It has been asserted that the prisoners have habeas righta, 5th amendment rights to due process and against self-incrimination, 6th amendment rights to a speedy and public trial, the right to confront accusers, and assistance of counsel. Why doesn't they 8th amendment prohibition against excessive bail apply?
Your willingness to deny these prisoners bail reveals you to be just another facist intent on shredding our constitution.
Yes, that's why Gitmo became such a cause. For that reason, anyplace would become a cause, since activists can direct their ire anyplace. To claim that Gitmo has some unique status because of some bogus claims of mistreatment which would not be the case elsewhere is nonsense. It presumes the activists would not make bogus claims of mistreatment when some other location is under the 'scope.
The mistreatment at Gitmo has been evident all along -- that was the purpose of the program.
That is hardly a legal argument.
It is also flawed. GTMO became notorious not for its unique abusive tactics (it had few), but because it was a visible symbol.
That particular observation was not intended as a legal argument, but a policy argument against keeping Guantanamo open.
In fact, the abuses at Guantanamo, such as those Alberto Mora made a stand against, were sufficiently heinous to earn notoriety. (Although some of the most egregious examples of torture seem to have occurred elsewhere at the CIA black sites.)
If all prisoners had always been kept in humane conditions open to inspection, their treatment would not have such propaganda value. There would still be propaganda, but it would be less credible. Also, we would not have weakened our moral standing in future conflicts to insist on legal and proper treatment for our own troops, as Judge Crawford recently noted. (That is one reason that some of the strongest opposition to abusive treatment has come from within our military.)
Sorry, I just reject the idea that it's either legally okay or sound policy to torture or otherwise violate the law if we only keep it secret.
Well, if we catch some guy and keep him "in the war zone" for, say, FIVE YEARS, then it becomes a live question as to whether the feds are taking advantage of the "war zone" to exercise tyrannical power.
Whether this makes any difference under existing habeas jurisprudence, I dunno, but it should. As the sovereign seeks more diligently to find hideyholes in which to exercise indefinite, unreviewable detention, the jurisprudence should follow.
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I'm sorry, but the word "hypocrites" is coming to mind.
It's interesting to me now that Balkinization has cut off comments (on most posts -- Tamanaha left his on) just when they would be most likely to have regular readers asking, "so was torture and indefinite detention only bad under Bush?"
My most charitable explanation is that Lederman's gig at OLC is making them hold off, in the faith that Marty won't let anything terrible happen ... for very much longer ... surely ....
Not a good excuse, IMHO, but better than sheer hypocrisy.
I agree, and I think it's important to keep paying attention, and speaking up.
The treaty, as I recall, is limited to naval operations (refueling ships is mentioned) and forbids commercial activity. We no longer need to and do so replenish ships' coal bins at Guantanamo; we house prisoners from a half-world away and operate fast-food restaurants. If a Cuban government acceptable to Florida's anti-Castro zealots assumes power, I expect the United States to depart Guantanamo promptly if asked. I believe a U.S. President admitted some time ago that the primary reason for continued occupancy of Guantanamo is political and punitive. We should hope our country would be better than this.
But I really think the hunt for Obama's hypocrisy is way too eager given the realities of the situation, especially on the part of folks on the right who have been manufacturing excuses for the Bush administration's hypocrisy, lies, and crimes for seven years now. I think Obama has in fact made some bad mistakes already, keeping Gates and Petraeus on the job being the worst, but I haven't seen anything that would lead me to believe he's insincere.
And especially not in comparison to the failings of his critics on the right.
However, if a Democratic government took over, the US most likely would turn it over if asked, as it did in the Philippines.
Really? What's wrong with them?
I don't think Petraeus should be setting policy, as he effectively was allowed to do in the vacuum of Bush's last two years, but he's a good general, and if it's *possible* to have a good outcome in Iraq &Afghanistan -- and if we *want* to devote the resources to bring that about, which I'm none too sure of -- then I can't think who'd be better to do it.
Cf. Ricks's new book The Gamble, which I've read and which is more tough-minded about Petraeus and our "military adventure in Iraq" than some of his critics are evidently allowing it to be (probably w/out having read the book).
Two utterly pointless wars in Iraq and Afghanistan, the most bloated, wasteful defense budget in our history, and complicity in the crimes of the Bush administration -- that's what.
And Petraeus isn't nearly as good a general as you think he is -- he's another George McClellan. The guy thing that 16 months is too soon for us to leave Iraq when the reality is that it's idiotic for us to stay in Iraq another 16 weeks.
Why are we there exactly? What are the military objectives?
The reality is that we're there because the previous administration thought it was a good idea to rape Iraq. There never were any valid military objectives, and there aren't any now -- we're in Iraq because criminals and fools like Bush, Cheney, Gates, and Petraeus want us there for reasons their own -- and because Obama has yet to figure out just exactly how foolish and criminal they really are.
He'll either learn the hard way or they'll ensnare him in a worse mess than we're in already. It's been seven years and our strategic situation has done nothing but get worse. Anyone thinks Iraq represents a "victory" is deluding themselves -- Iraq was and is a total waste of time, resources, and lives. Afghanistan isn't much better given the complete lack of a coherent strategy.
Iraq was a pointless war, but we're there, and the "Pottery Barn" analogy has some merit. You don't kick down someone's door, spray automatic fire, kill the dad, and then say "oops sorry, wrong war" and walk away. Afghanistan/Pakistan are actually directed at al-Qaeda and their Taliban allies, which I fail to consider "pointless."
And Petraeus isn't nearly as good a general as you think he is -- he's another George McClellan.
For that analogy to make any sense, it would need some explaining. McClellan polished his troops and was afraid to risk them in combat. Petraeus got his soldiers into the streets and the neighborhoods, taking increased casualties as a result. Casey, with his plan to pull our troops into the FOBs, would be a better McClellan figure.
The argument vs. pulling out of Iraq is simply the fear of bloody civil war -- remember Rwanda? I don't think that's a dispositive argument; it involves predicting the future, and I'm not sure how much of a commitment we can politically continue to support.
But the decisions will have to be made on a more sophisticated, fact-based level than "criminals and fools" - "idiotic to stay" - etc.
Analogy?
The guy is a self-serving, egotistical martinet with a deeply flawed understanding of strategy. I didn't intend anything more than that, but McClellan got a lot more of his troops killed than Petraeus has, while Petraeus is actually better at wasting the lives of his troops for nothing. McClellan twice put the Union Army in a position to end the war, though he also frittered away the opportunity in both cases. The only objective Petraeus has is the military equivalent of masturbation.
As for the bloody civil war argument, that just proves my point: your fears concerning future political events in other nations are not a valid military objective. Iraq was a pure war of aggression, a crime. And if that's really what you're worried about, why aren't you arguing for redeploying our forces to Israel, Darfur, Sri Lanka, and the Congo?
The clearest thing about both Iraq and Afghanistan is that everything we've done in both places from the start has only made a bad situation worse. That was true in 2004, and even more so now.
O-tay, then.
And if that's really what you're worried about, why aren't you arguing for redeploying our forces to Israel, Darfur, Sri Lanka, and the Congo?
Because we did not create those situations by invading those countries, removing their governments, and disbanding their armies.
So essentially the argument is the best way to help a rape victim is to force her to marry the rapist?
The single most helpful thing we could do for Iraq is to leave. Maybe give them 10% of what it has cost us to maintain the occupation as reparations. As it stands, all we're doing is inflicting more damage on them.
And we aren't there for the sake of Iraq in any case. That is the last thing that anyone actually cares about, especially those who've most vociferously supported this festering fiasco. We're there for the sake of domestic political agendas and vacuous delusions about Iran, Israel, and a host of other things, like the idiotic Global War On Nothing in Particular and Everything in General.
You may be right, but your tone doesn't suggest you're especially open to any contrary evidence.
I doubt that the political factions are really interested in a negotiated settlement; my inference from Ricks &other sources is that they're basically waiting for the U.S. to leave, upon which they think they can settle things w/ force.
Petraeus's answer seems basically to amount to babysitting the Iraqis until they chill out. What's less acceptable politically -- keeping the lid on a civil war, with constant drain on our resources (esp. the opportunity cost), or lots more dead Iraqis? That's Obama's question to answer.
And we aren't there for the sake of Iraq in any case
The fallacy of origins. Why we *went* there and what our duty is *now* are by no means logically interdependent.
Well as someone who opposed the war and more or less predicted exactly how to would go fro9m the start, I'd have to admit that my patience wore out back in 2003.
In point of fact, ALL of the evidence over the last seven years supports my view, while the proponents of this fiasco have been ignoring and misrepresenting the facts from the start. It's not me that has a problem being open to contrary evidence here -- I saw 911 coming back in 1987, and haven't been confused about much of anything since. I'll stack my analysis over the last seven years up against anybody. I haven't written a lot about the military situation because there are things that I don't want to talk about in public, but one of the major motivations behind the work I've done on the legal issues of the Bush war crimes is my understanding of the underlying strategic situation.
That is contrary to the reports I have read. Most Iraqis don't want us to leave yet, because they fear sectarian violence. However, they are getting more confident with time.
Wouldn't it be a hoot if we liberated tens of millions of people from a brutal dictator and they created the first Arab democracy in the region?
What most Iraqis want, unfortunately, is likely to matter less than what most Iraqis with guns want. As usual in such situations.
But I certainly hope for the best.
If the Iraqis go to a repressive theocracy, or a totaltiarian form of government, then we have a problem.
All of the things those "racists" have been saying about the middle east are true.
But the racists can't be right, can they?
Hopefully the rest of us will get a chance to watch the two of you work this out.
Meanwhile, the core reality is that we succeeded in replacing a secular thug with an Islamist thug. The former was an enemy of Iran, and the latter is a friend of Iran. We solved Iran's biggest problem, a problem they tried very hard to solve on their own, and could not.
"Racism" has nothing to do with it. Europeans have not always been liberal democrats. We went through a good long spell of killing off religious and political opponents before developing the rule of law and something like a sense of individual rights ... and even then, we got two world wars.
The Iraqi factions do not trust one another, and I can't really say they're wrong not to. Violence in their situation is not an irrational, bestial activity (no more so than it ever is, anyway). If you're a ____ convinced that your enemy the ____ won't compromise but instead will try to exterminate you, then what's the rational thing to do?
We have a problem. If the Iraqis don't take up democracy, it will be proof that the good folks of the middle east can never handle the concept. Considering all that went to offering it to them on a silver platter.
Now, it may be true that democracy is never going to work outside the west, with its Greco-Roman, Anglo-Saxon, Judeo-Christian traditions. Or where it has been forcefully imposed--Japan.
But to say so was to be a racist.
Unfortunately, if the Iraqis can't manage it, the racists would look to be right.
Which is kind of interesting, given that the lefties were all about proclaiming that you have to give slack to other cultural traditions--democracy isn't for everybody--and basically saying what the supposed racists were saying.
What if they're both right?
Of course, the supposed racists would have been looking at, if not particularly carefully, cultural history and not genes, and the lefties who promote democracy everywhere it would inconvenience US foreign policy were looking at a way to discredit US policy in Iraq.
Different sources, same result.
We'll see.
Certain people like to promote the idea that Japan had no experience with democratization until we imposed it on them. But like so many other claims you make (examples can be seen via here), this claim is false:
Yeah, that's really what happened! Which clearly explains why Nouri al-Maliki, on his own, launched a military attack into Basra to defeat the Iranian backed militias there. And that's why this "thug" is not torturing and killing zillions of Sunni's, like Saddam did to Shias. And why this "Islamist thug" is an enemy of both Islamist Iran and Islamist Al Qaeda.
Both sides in that battle have ties with Iran. You're greatly oversimplifying a complex picture.
If you don't believe what I said about Maliki, pay attention to McCarthy:
And here:
More:
And then there's this:
If you think Maliki is not a close ally of Iran, you're kidding yourself.
We need to leave first. He's patient. He's been waiting for a long time. He's willing to wait a little longer.
Yes, he's such an "enemy" of Iran that he's visiting Iran frequently and calling for "expansion of economic and trade ties with Iran." And that's exactly the kind of relationship Saddam had with Iran, right?
Thinks are not as simple as it would appear. Iraqi's are Arabs, while Iranians are predominantly Persian. It's not like there hasn't been thousands of years of enmity there.
Maliki was democratically elected, and while he talks with Iran, he is not an Iranian puppet. He would be an idiot not to. However, most Iraqi Shias have a healthy distrust of Iran.
Uh huh.
And how about your "Islamist thug" characterization?
So what? So was Hamas. Leaders who are "democratically elected" are not always going to be our friends.
No. I'm suggesting that the real costs of the war are still invisible to most Americans.
Yes. But not enough "distrust" to keep Malaki from calling for "expansion of economic and trade ties with Iran."
What you said before is that he's an "enemy" of Iran. I seem to detect some backpedaling. By the way, I never said he is "an Iranian puppet." I said he's a friend of Iran. Because that's what's demonstrated by the facts.
That's what I called him because that's what he is. Here's some information about his background:
And here's some information about Dawa:
(Emphasis added.) CIA station chief William Buckley was also killed by terrorists who demanded the release of the Dawa 17. And when hundreds of Marines were blown up in Beirut, Maliki was running the Dawa branch in Damascus, about 50 miles away. At the time, Dawa and Hezbollah were closely aligned, and Maliki is still a supporter of Hezbollah.
Maliki's connections with anti-American suicide terrorism are far clearer than any such alleged connection on the part of Saddam. As I said, we replaced a secular thug who was an enemy of Iran with an Islamist thug who is a friend of Iran.
From your link:
Saying that someone is "one of the most moderate leaders" of Dawa is like saying someone is "one of the most moderate leaders" of Hamas, or Hezbollah. It doesn't mean much.
And it's a good idea to keep in mind who you're quoting. Amer Taheri is a neoconservative (link, link). Shortly after he wrote the words you (and I) cited, he was invited to the White House to give Bush advice. So while he is giving us truthful information about Maliki's background, he has a strong motivation to put the best face on it, by calling Maliki a "moderate." And compared to some other people, I'm sure he is. But that doesn't contradict anything I said about him being a friend of Iran. It's true that Maliki would not go as far as being a puppet of Iran, but he's still infinitely closer to Iran than Saddam was.
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