Last year Judge John Bates ruled that detainees at Bagram who had been captured in third countries had a right to petition U.S. courts for release, just like detainees at Guantanamo. It's important to understand how narrow this ruling was -- it didn't mean that anyone pulled off an Afghan battlefield had a right to habeas corpus. It meant that only those detainees that had been captured in, say, Somalia or Yemen and transferred to Bagram had a right to petition the courts for release. The argument of human-rights activists was that these individuals, not being captured on a battlefield, couldn't simply be transferred to a war zone in order for the government to take advantage of it's broader detention authority in a theater of war. The government has successfully won its appeal of Bates' ruling.
Basically, the D.C. Circuit Court ruling today (via Lyle Denniston) says that it's fine for the government to do so. The judges argued that "Bagram, indeed the entire nation of Afghanistan, remains a theater of war” and that unlike the U.S. Naval base at Guantanamo, the government does not retain the same kind of "de-facto sovreignty" over the territory surrounding Bagram. It's a big victory for the Obama administration, but as Glenn Greenwald notes, not a great victory for due process.
The petitioners argued that this kind of ruling would allow the government to "evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will.” The ruling dismisses this as mere hypothetical, stating, "We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation." In other words, until we know for certain the government has begun transferring people from third countries to Bagram in order to "switch the Constitution on and off at will," there's no reason for the courts to deal with it.
That just seems naive to me, particularly since two of the petitioners in this case make uncontested claims of being captured outside Afghanistan, with American military officials saying the third was captured within Afghanistan's borders. One human-rights expert suggested to me that presumably, since they weren't captured in the United States or transferred from Gitmo, they already weren't within the reach of U.S. courts. Practically speaking, though, if this ruling stands, all the government has to do to avoid court review for anyone it captures anywhere in the world outside the U.S. is to send them to Bagram, which really would make it Obama's Gitmo. We're beyond cute journalistic euphemisms here; the point of Gitmo was to put terror suspects beyond the reach of U.S. courts. Now the government knows it has a place where it can do just that.
Of course, we're not supposed to be in Afghanistan forever, so there's a natural time limit on Bagram being useful in this manner. Right?
-- A. Serwer