Habeas Rights At Bagram

From last Friday’s NYT:

“The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release. (…)

The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.

The Obama administration’s decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration’s policy of indefinitely detaining “enemy combatants” without trials.”

I am very much of two minds about this. I explain why below the fold.

On the one hand, had anyone asked me in, say, 1991 whether Iraqi prisoners whom we were holding in Kuwait were entitled to file habeas petitions in US court, I would have said: of course not. They are entitled to lots of things, many of them detailed in the Geneva Conventions. But it would have seemed bizarre to me to suggest that they were entitled to habeas rights.

I still feel this way about those detainees at Bagram who were captured on or near an actual battlefield. To say that I do not think they are entitled to habeas rights is not to say that I do not think they are entitled to anything. Afghanistan is a signatory to the Geneva Conventions. Its soldiers are entitled to the rights of prisoners of war. Any civilians we capture are likewise entitled to those rights until “a competent tribunal” determines that they are not prisoners of war.

However, not everyone at Bagram was captured in or near a battlefield. Consider, for instance, Amin Al Bakri (pdf):

“Almost six years ago, Mr. Al Bakri, a citizen of a friendly nation, Yemen, was abducted by Respondents during a brief business trip to Thailand — thousands of miles from any battlefield. Since their illegal seizure of Mr. Al Bakri, Respondents have secreted him between various locations known only to them in order to evade their legal obligations under domestic and international law. At their sole discretion, Respondents finally rendered Mr. Al Bakri unlawfully to Bagram Air Base, Afghanistan, where they continue to hold him subject to their complete jurisdiction and control.”

I have no idea whether, under (what look to me to be) the most obvious precedents, someone like Amin Al Bakri is entitled to habeas rights. (In what follows, I am only discussing those prisoners at Bagram who, like Al Bakri, were not captured on or near a battlefield.) In Eisentrager, the Supreme Court held that the enemy aliens who had brought that case were not entitled to petition for habeas corpus. In Boumediene, the Court found that some Guantanamo detainees were. Here is the Court in Boumediene discussing Eigentrager:

“In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner:

“(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” 339 U. S., at 777.

Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”

It was important, in Boumediene, that the detainees who had brought suit were held at Guantanamo: a site that belonged to Cuba, but that was under complete US control. This is not true of Bagram. The practical obstacles to granting habeas rights are also (I assume) greater in the case of detainees at Bagram. One might distinguish detainees at Bagram from those at Guantanamo on either of those grounds.

On the other hand, the “status of the detainee and the adequacy of the process through which that status determination was made” were also important to the Court in Boumediene:

“The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8-10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing “Regulations Governing the Trial of War Criminals” in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34-40.

In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”

On this score, Bagram detainees are even worse off than detainees at Guantanamo, as far as I can tell. (From the NYT about a year ago: “Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said.”) Insofar as this consideration motivated the Court, it would seem to support the extension of habeas rights to Bagram detainees.

If I were either on the Supreme Court or in the Obama administration, one other consideration would weigh strongly with me. The best reason not to extend habeas rights to non-citizens at Bagram, I think, is that it is a prison in the middle of a war zone, many of whose prisoners are prisoners of war. As I said above, I do not think that prisoners of war (in the normal sense of that term) are entitled to habeas rights. Moreover, other things equal, I would rather not have federal courts scrutinizing the workings of prisons run by the military in the middle of a war zone. I think it’s a good thing that we have a system of military justice set up for that purpose, and my presumption would be that it, rather than the federal courts, should deal with prisoners in theaters of war.

However, it was neither me nor the federal courts that muddied the distinction between the jurisdictions of the federal and military courts, thereby making it impossible for the federal courts to simply defer to the military in these matters. It was the Bush administration. They were the ones who sent CIA agents all over the world kidnapping people, flew those people from places like Thailand into a war zone, and then turned around and said: heavens, you cannot scrutinize what we did — you’d be interfering with the conduct of the military in wartime!

As far as I can tell, it was not the military that captured Amin Al Bakri. He was not captured within a thousand miles of a battlefield. He was moved to a battlefield. And some detainees were moved to Bagram rather than Guantanamo precisely because the Court had ruled that detainees at Guantanamo had rights the Bush administration did not want to give them:

“Other military and administration officials said the growing detainee population at Bagram, which rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part a result of a Bush administration decision to shut off the flow of detainees into Guantanamo after the Supreme Court ruled that those prisoners had some basic due-process rights.”

If I were either the Obama administration or the Court, I would hold that anyone our government detains for any substantial period of time (say, a couple of weeks — long enough to exclude cases in which, say, DEA agents capture someone in Colombia and turn that person over to the Colombian government ASAP, but not longer than necessary) has the right to file for habeas corpus unless s/he was detained in the course of military conflict. I’m not sure how the boundaries between military conflict and everything else should be defined, but I think it cannot possibly extend to the kidnapping of people over two thousand miles away, in a peaceful country.

If the Bush administration had not decided to start kidnapping people and moving them into military prisons in war zones, we would not have had to decide these questions. We could have assumed that the people in those prisons were actual prisoners of war, especially if the Bush administration had also allowed the Army to set up the kinds of tribunals it usually uses to decide which people were rightly detained and which were not.

Now, unfortunately, the Courts have to decide whether or not to allow the government a way of circumventing the law and the Constitution, at least as regards non-citizens: kidnapping them abroad, moving them into the middle of a war zone, and then arguing that any judicial intervention into their captivity would constitute interference with the military’s conduct of a war. The Bush administration was reckless enough to use the military as a kind of legal shield. It is up to the Courts to prove them wrong.

All that said, I don’t see this decision by the Obama administration as a complete calamity. The question whether detainees at Bagram have habeas rights is, I think, genuinely difficult. Moreover, habeas rights are not the only remedy for these cases. If the Obama administration establishes a decent system for deciding which Bagram prisoners were rightly detained and which were not, a system within which the prisoners have roughly the same rights as the plaintiffs in the Eisentrager case, I will be content — especially if they also declare that the Bagram inmates are prisoners of war and treat them accordingly, and double especially if they make it clear that according to the US, people who are imprisoned by the government must either fall under one of the Geneva Conventions or be tried in civilian court (or be deported, or some other normal thing.)

Because what matters most to me is that there be no category of people who have no legal rights, and no place where we can hold them with impunity; and that people we imprison should have the right to contest their detention in a fair proceeding, unless we have granted them the rights afforded prisoners of war under the Geneva Conventions.

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