Justice Extends to Bagram, Guantanamo's Dark Mirror

Since coming to power in a blaze of reforming glory, promising to close Guantanamo within a year,
to stop the CIA from running offshore torture prisons, and to 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 US 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 Guantanamo. 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 Guantanamo - 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 Guantanamo 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 US
military - was nothing less than Guantanamo's Dark Mirror, or, as Judge
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 Guantanamo 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 US
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 Guantanamo
(which has, of course, been condemned by former officials who worked on
it, including, in particular, Lt. Col. Stephen Abraham), and concluded that the US military's control over Bagram "is not appreciably different than at Guantanamo."

His precis 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 Guantanamo), 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 Guantanamo.

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 US 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.