THE BATES RULING. [draft]

Daphne Eviatar has a good piece on yesterday’s ruling that granted three detainees at Bagram Air Base the right to challenge their detention. She gets to the crux of the problem:

“It shows that the courts are not going to take cosmetic rhetoric as a substitute for a legal basis for detention,” said Foster. “The rhetoric that we’re in a war on terror and that Afghanistan is in the middle of a war zone doesn’t change the fact that the U.S. government brought people who had nothing to do with the conflict in Afghanistan or the war on terror to be held in its custody in the middle of Afghanistan.”

On the other hand, the judge did make clear that the factors the Supreme Court set out in Boumediene to determine when prisoners have habeas rights could lead to different outcomes for different prisoners.

There’s absolute hysteria on the right from Ed Morrisey, who didn’t bother to read the ruling. Morrisey writes, ” A federal judge ruled today that terrorists captured on foreign battlefields and held by the military should have access to American courts,” before shrieking that “This is, simply put, a war by the judiciary on American conduct of war.” How very Yoo: when it comes to war, there’s no such thing as checks and balances. I would try to explain to you why Morrisey cites the Geneva Convention provisions relating to prisoners of war, but I can only conclude that while the folks at Hot Air were snickering about the semantics of “enemy combatants” they didn’t bother to learn that the term has legal implications, among them denying suspected terrorists and insurgents the distinction of being a POW. POWs, after all, have rights pertaining to their treatment.

In any case, Judge Bates ruling absolutely does not say that “terrorists captured on foreign battlefields” should have access to American courts. What it says is that the U.S. cannot apprehend suspects from a third country and then transfer them to Guantanamo for the purposes of denying them due process. The ruling does not say that detainees captured in a zone of active military combat have Habeas rights. The detainees in question were not captured in a zone of active combat, they were brought there and put in military detention because the military indeed has the authority to detain people captured on the battlefield. It’s not clear whether the Obama administration will appeal or not, but if they don’t, they will have to face the task of distinguishing which detainees have what rights. In his ruling, Bates writes:

It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the same specter of limitless Executive power the Supreme Court sought to guard against in Boumediene — the concern that the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely.

That seems quite clear to me. But then again, I bothered to read it.