Yesterday in my post on the new review process for detainees in Afghanistan I mistakenly said that the process would apply to Afghan nationals only, given the Bates ruling that foreign nationals captured in third countries in Afghanistan had Habeas rights. The administration made clear in its filing to the U.S. District Court yesterday that it has no intention of allowing any detainees at Bagram -- regardless of nationality -- to claim Habeas rights. The new review boards then would be in lieu of Habeas rights for those whom Judge Bates previously ruled are entitled to them. They aren't much different from the Combatant Status Review Tribunals developed by the previous administration that were found unconstitutional. The briefing reads:
[A]n enemy alien apprehended and detained by the military overseas in an active war zone at the very least bears an extremely heavy burden before he may sue his captors civilly and require the federal courts to second guess the judgment of both political branches with respect to the reach of habeas jurisdiction.
Of course the detainees who were extended Habeas rights in the Bates ruling weren't apprehended and detained in an active war zone. They were apprehended and detained elsewhere, and then sent to an active war zone in order to avoid judicial review. The sum of the administration's argument is, basically, that becauseBagram is in an active war zone, the courts can't say a thing. It's one thing to say that the military has the authority to detain those captured in an active war zone -- it's another to say that as soon as you ship someone from a third country to an active war zone they have no rights.
That's what Bush was doing following the Supreme Court's Bourmediene ruling that determined detainees at Guantanamo Bay had Habeas rights--trying to game the system by sending detainees captured in third countries to Bagram. The question is, why is the Obama administration watching their back? Has the new administration been turning Bagram into the new Gitmo -- transferring detainees captured in third countries there so they can be held indefinitely without any oversight from the courts whatsoever?
This is one of the reasons the ACLU has been demanding that the government make public the names, nationalities, and places of capture of detainees currently held at Bagram. Until that happens, we won't know whether the Obama administration is, like their predecessors, making an end run around the Constitution.
-- A. Serwer
