Two years ago, Judge John Bates ruled that the writ of habeas corpus extended to three non-Afghan detainees at the Bagram detention facility in Afghanistan. This did not extend to detainees captured in the "theater of combat," in Afghanistan but those who had been apprehended outside the country. His reasoning was based on the 2008 Boumediene decision, 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."
The D.C. Circuit Court overturned Judge Bates' ruling, arguing that because Bagram is located in an ongoing theater of war, the U.S. did not exercise the same degree of "de-facto sovereignty" that it does over Guantanamo Bay. The detainees' lawyers argued that this would allow the executive branch to arbitrarily render new captures to Bagram, where they could avoid court scrutiny, but the D.C. Circuit ruling implied that if they did so, they might reconsider their ruling. The three detainees in question had been transferred prior to the Boumediene ruling, so their lawyers couldn't prove they had been placed their to avoid court review.
Yesterday, though, as Josh Gerstein reported, Bates is giving the petitioners another shot. He'll allow them to present evidence that the factors that the D.C. Circuit based its 2010 ruling on have changed and now weigh in favor of granting habeas rights to the three detainees in question. This doesn't mean that the detainees in question have habeas rights, but it does mean that they'll get another chance to argue that they do under the law. Even if the case were ultimately decided in the petitioners' favor, this wouldn't extend habeas rights to detainees literally captured on the battlefield, as opposed to a figurative global war on terror "battlefield" with no legal limits.
Bates is not easily caricatured as some hippie liberal. A veteran, he was appointed by President George W. Bush, and was deputy independent counsel during Ken Starr's Whitewater investigation. Most recently, he dismissed the ACLU/CCR lawsuit seeking to enjoin the Obama administration from killing American-born radical cleric Anwar al-Awlaki without due process.
