So in my last post on the latest Bagram habeas ruling, I wrote that "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." It's actually more complicated.
There's a reason why the government might not choose to simply start pouring detainees captured outside of Afghanistan into Bagram. Part of the reason the court ruled the way it did was that the detainees were captured before Gitmo detainees had habeas rights, which meant the government couldn't have transferred them to Bagram for the express purpose of avoiding habeas review. In fact, the court implies that had the government done that in this case, they might have ruled differently, and they might do so in the future should a case of that nature reach them. "Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present." So if the executive branch did deliberately move someone to a war zone to avoid habeas review, the court might issue a different ruling.
Here's the question, though. A foreign national in a foreign country is already outside the jurisdiction of U.S. courts. Would it be considered a "manipulation by the executive" to transfer any foreign national not captured on a battlefield in Afghanistan to Bagram? Or only if they were in an area in which the U.S. has de-jure or de-facto sovereignty?
“Ultimately it’s not settled,” said Ken Gude, a human-rights expert with the Center for American Progress, adding that in this instance, he agreed with the ruling. "Extending habeas into detainees in a detention center in a combat zone, and it’s not hard to see the negative practical implications of that, if any detainee in Iraq or Afghanistan or any future conflict … it just wouldn’t work,” Gude says.
The ACLU on the other hand, was critical of the ruling. In a statement, staff attorney Melissa Goodman said that "locking up people who were picked up far from any battlefield for years without telling them why, without giving them access to lawyers and without giving them a fair chance to contest the evidence against them is unlawful and un-American."
My view is the court could have dealt with this issue without extending habeas rights to actual battlefield captures. Either way it seems like the relevant question as to whether Bagram really does become Obama's Gitmo -- a legal black hole in which detainees can be placed to avoid the reach of the courts -- depends on how "manipulation by the executive" is ultimately interpreted, by the administration, and the courts.
-- A. Serwer