The Bagram Loophole.


Lyle Denniston reports that attorneys for three non-Afghan detainees at Bagram who were captured in third countries and are looking to assert habeas rights in U.S. courts are filing a new suit. Despite the fact that the Boumediene case grants habeas rights to detainees held at Guantanamo Bay, a few months ago, the D.C. Circuit ruled that because Bagram was located in an ongoing theater of war and is not located on a place of "de-facto U.S. sovereignty" like the naval base at Guantanamo Bay, Boumediene didn't apply.

There was a third condition, though -- the fact that it wasn't clear that the government deliberately transferred those detainees to Bagram to avoid the watchful eye of the courts. As I reported at the time, the D.C. Circuit Court hinted in their ruling that had that been the case, they would have to reconsider their decision. They didn't say that would automatically grant non-Afghan detainees captured outside Afghanistan habeas rights if transferred to Bagram, but they did say that "perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present." Preventing that manipulation was at the heart of the Supreme Court's Boumediene decision -- and it was part of the grounds on which the attorneys for the detainees argued their case, warning that denying habeas rights to their clients would be "granting the Executive the power to switch the Constitution on or off at will.”

So, fast-forward to this week, Denniston reports that the lawyers for the three detainees have filed suit again, arguing that media reports about the government considering transferring detainees to Bagram they plan to retain after the facility is handed over to the Afghans and house detainees there for interrogation are evidence of that very kind of manipulation. Interestingly enough, the Taliban have reportedly been critical of the handover because they think they will be treated worse by Afghan authorities than by American ones. And that's after widespread reports of abuse and at least two detainees dying after being tortured by U.S. authorities.

I haven't been able to access the docket, so I haven't been able to look at which media reports these groups are citing. However, I think there's one circumstance under which the U.S. could transfer detainees from say, Gitmo to Bagram without incurring the wrath of the courts -- if they did so after a detainee lost their habeas case. Since their petition for habeas was denied, the U.S. couldn't be accused of trying to avoid court review by sending them there.


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