by publius
Good news on the national security front – a federal district court granted habeas rights yesterday to certain detainees being held at Bagram Airfield in Afghanistan (pdf here). In doing so, the court applied – and relied on – the Supreme Court’s landmark Boumediene case from last year. (For those interested, hilzoy has written extensively on the Bagram detainees).
My quick take is that (1) the opinion is actually quite narrow; and (2) the result is correct – indeed, any other result would have essentially overruled Boumediene.
First, although I expect to hear shrieks about activist judges, the opinion was quite narrow – applying to only four of the hundreds of Bagram detainees. Unlike most of the detainees, these four had been captured in other countries and shipped to Afghanistan for detention. In this respect, they are essentially identical in status to the Gitmo detainees.
The opinion did NOT grant habeas (or even consider it) for the more traditional prisoners captured on the Afghanistan battlefields. Like hilzoy, I tend to agree that habeas shouldn’t extend to them – assuming of course that this group is clearly identified as traditional prisoners of war entitled to Geneva Convention rights. (Notably, this opinion creates incentives to draw these types of clearer lines to avoid habeas litigation).
But anyway, everyone should keep in mind that the opinion is narrow in scope.
Second, the court’s result is basically compelled by Boumediene. In a nutshell, Boumediene held that the kangaroo review procedures under the MCA/DTA were an insufficient substitute for traditional habeas protections – and therefore unconstitutional. The government doesn’t necessarily have to provide habeas to vindicate constitutional rights – but it’s gotta provide somethin’ in its place. And this didn’t cut it, the Court found.
Boumediene, however, applied only to Gitmo detainees – and there was an open question about whether the case would reach beyond Gitmo to detention facilities in other countries. Yesterday’s decision said "yes it does" – and that’s what makes it so significant.
And that decision seems clearly correct. In fact, it’s a no-brainer once you accept Boumediene (as a district court must). The four detainees in question are identical to the Gitmo detainees (actually, they have a stronger case). For one, they had not been captured on the Afghanistan battlefields, but had been shipped in from other countries. In addition, they were provided even less procedural protections than the Gitmo detainees enjoyed – in a facility controlled just as completely by the United States.
In fact, if the district court had reached the opposite conclusion, it would have effectively overruled Boumediene. Specifically, it would have allowed the administration to avoid Boumediene's holding by shipping every Gitmo detainee to Bagram. From a purely policy perspective, this seems absurd given that it would create incentives to build detention centers near active theaters of war simply to avoid legal review and messy constitutional requirements.
Fortunately, the district court did the right thing – though its effect may prove fleeting on appeal. Indeed, the final result will likely depend on whether Justice Kennedy's Cocoa Puffs tasted funny that morning.
…proceeding towards justice by teeny-tiny steps.
“You can always count on Americans to do the right thing – after they’ve tried everything else.”
— Winston Churchill.
An exaggeration (about always eventually doing the right thing), of course, but semi-true.
And now I’m off all day for a medical apt. and accompanying errands.
Good luck Gary.
OT, but speaking of activist judges and important rulings, how about that Iowa SC?
Read the opinion. It is an absolute masterpiece.
Gary: What Eric said.
And this is very good.
Specifically, it would have allowed the administration to avoid Boumediene’s holding by shipping every Gitmo detainee to Bagram.
Yah, if it’s ultimately affirmed, this seems to me the crucial point.
Tho I can certainly see Roberts Alito etc. writing that “absent any evidence of evil intent,” etc., reversed and rendered. Because of course, a habeas applicant would have access to the thought processes of the sovereign like that.
“Good luck Gary.”
Not to make this thread, too, about me, followup here for anyone interested.
Heartening decision.
This from Charlie Savage’s coverage caught my attention:
Pardon me for declining to believe that, given the extent to which we’ve been lied to. I’m also disgusted that there’s still not a full accounting of prisoners held there, and that we still haven’t recognized or treated the Afghan prisoners as prisoners of war.
But it’s good that Boumediene is being upheld. Given how likely it was that it would be, and the Obama Dept. of Justice’s having declined to move an iota off the Bush DoJ position on the issue, if they fail to appeal I’ll even be willing to consider this might be an actual example of those “they really wanted to lose” scenarios the Obama defenders have proposed. But if they do appeal, then they’re Dicks, and I really can’t imagine how anyone will defend them.
Even if they don’t appeal, they will have more time, particularly given the narrow nature of the ruling.
“Pardon me for declining to believe that, given the extent to which we’ve been lied to.”
I’m doubtful it’s a much larger number, not because I trust American officials, but for the following reasons: most of the CIA plane movements of secret prisoners have been tracked and followed. Plane numbers have been identified. It’s difficult to fly a plane without a flight plan. And most prisoners couldn’t start out from military planes on military bases (which would be far easier to conceal than civilian flights).
So I’m inclined to doubt that the number of foreign prisoners would be over around a hundred, at most.
Mind, I’m not remotely sure of this: I could be wrong, specifically by underestimating the number of prisoners who could be picked up and transported to a U.S. military field somewhere in the world. I’m only saying I’m inclined to doubt that the number is over a hundred.
But it is what I’m inclined to guess. And my narrower guess would be under fifty. Maybe even under thirty. Though, on the high end, maybe as many as two hundred. I’m inclined to go with a conservative figure, though, so long as I’m guessing.
Kidnapping people from most other countries also isn’t easy to get away with unnoticed, and we’d not be much inclined to take prisoners already captured by a foreign government, since most such prisoners would be taken by a government already willing to hold them. (Mind, I’m talking about numbers at Bagram; we’ve definitely shipped a bunch more secret prisoners over the years to Egypt, Syria, and other countries willing to take them at one time or another.)
Lastly, the CIA simply hasn’t been very competent about some of their kidnappings. Note the Milan fiasco.
“Kidnapping people from most other countries also isn’t easy to get away with unnoticed”
To be clear, it takes a whole bunch of personnel: the CIA used 24 American employees in Milan, plus cooperative Italians. To pick up one guy. Mounting such an operation isn’t done casually, or every week.
Liberal Japonicus doesn’t seem to have been around the last couple of days, so I don’t know if he’ll see this, but regarding European troops and Afghanistan. As I said, it has nothing to do with Iraq these days.
S’truth.
@Gary: your points about flight-spotting and the personnel required for some kinds of CIA kidnapings are well taken. But many prisoners have been acquired as transfers from other countries’ security services (particularly Pakistan’s), requiring very little in the way of U.S. personnel, and through the U.S. military, which is conducting waronterra operations all over the world. Many hundreds of prisoners were taken in and around Somalia, for instance, and imprisoned in Kenya and elsewhere (again, with no full accounting).
My major point isn’t how far the true number is from twelve, but how little trust we should have in such assertions and the disgraceful reality that there is still no independent accounting of prisoners held.
@Joe: Even if they don’t appeal, they will have more time, particularly given the narrow nature of the ruling.
More time to do what? Can you elaborate?