Judge John Bates has ruled that three detainees at Bagram Air Base in Afghanistan have the right to challenge their detention in U.S. courts. There were four plaintiffs, but the judge ruled that because the fourth was an Afghan citizen, the U.S. had a right to detain him even though like the other three, he was captured outside of Afghanistan and brought there for detention. 

Judge Bates, who was appointed by George W. Bush and was Deputy Independent Counsel to Ken Starr during the Whitewater investigation, said that the logic of the Boumediene v. Bush decision compelled him to rule that the three non-Afghan detainees had Habeas rights. In his ruling, Bates wrote that the process used to determine the three detainees were "enemy combatants" was "inadequate" and "significantly less than the Guantanamo detainees in Boumediene received." Bates also wrote that "[a]lthough the site of detention at Bagram is not identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United States there is not appreciably different than at Guantanamo."

Here is where we start getting into the problem facing the Obama administration: On the one hand, the military's ability to detain enemy belligerents in time of war is longstanding. On the other, the Obama administration inherited a situation at Bagram where the Bush administration was attempting to skirt the Supreme Court's ruling by transferring terrorism suspects to where they thought U.S. courts might not have jurisdiction. So it's difficult to set two different standards for detainees at Bagram, one for foreign detainees, and one for those captured there, and as of now the Obama administration has pretty much taken a similar position to its predecessor's that it can hold just about anyone it wants for as long as it wants.

Discussing Bates' ruling, Ken Gude, a human rights expert at the Center for American Progress, says that “there are some practical problems with trying to apply this rule broadly, whether it’s to military detention centers in Afghanistan or Iraq or in some future conflict...these are not frivolous problems." Gude added that "[t]his is really kind of crying out for action by the Obama administration and Congress. They should get together and try to figure out a way to make this more manageable." Whatever the Obama administration decides, one hopes that it will simply prosecute terrorist suspects rather than shoehorning them into military detention and then declaring they can be held indefinitely.

Via the BBC. 

-- A. Serwer

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