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Tilting at Windmills

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February 24, 2009
By: Hilzoy

Habeas Rights At Bagram

From last Friday's NYT:

"The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush's legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release. (...)

The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.

The Obama administration's decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration's policy of indefinitely detaining "enemy combatants" without trials."

I am very much of two minds about this. I explain why below the fold.

On the one hand, had anyone asked me in, say, 1991 whether Iraqi prisoners whom we were holding in Kuwait were entitled to file habeas petitions in US court, I would have said: of course not. They are entitled to lots of things, many of them detailed in the Geneva Conventions. But it would have seemed bizarre to me to suggest that they were entitled to habeas rights.

I still feel this way about those detainees at Bagram who were captured on or near an actual battlefield. To say that I do not think they are entitled to habeas rights is not to say that I do not think they are entitled to anything. Afghanistan is a signatory to the Geneva Conventions. Its soldiers are entitled to the rights of prisoners of war. Any civilians we capture are likewise entitled to those rights until "a competent tribunal" determines that they are not prisoners of war.

However, not everyone at Bagram was captured in or near a battlefield. Consider, for instance, Amin Al Bakri (pdf):

"Almost six years ago, Mr. Al Bakri, a citizen of a friendly nation, Yemen, was abducted by Respondents during a brief business trip to Thailand -- thousands of miles from any battlefield. Since their illegal seizure of Mr. Al Bakri, Respondents have secreted him between various locations known only to them in order to evade their legal obligations under domestic and international law. At their sole discretion, Respondents finally rendered Mr. Al Bakri unlawfully to Bagram Air Base, Afghanistan, where they continue to hold him subject to their complete jurisdiction and control."

I have no idea whether, under (what look to me to be) the most obvious precedents, someone like Amin Al Bakri is entitled to habeas rights. (In what follows, I am only discussing those prisoners at Bagram who, like Al Bakri, were not captured on or near a battlefield.) In Eisentrager, the Supreme Court held that the enemy aliens who had brought that case were not entitled to petition for habeas corpus. In Boumediene, the Court found that some Guantanamo detainees were. Here is the Court in Boumediene discussing Eigentrager:

"In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner:

"(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." 339 U. S., at 777.

Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ."

It was important, in Boumediene, that the detainees who had brought suit were held at Guantanamo: a site that belonged to Cuba, but that was under complete US control. This is not true of Bagram. The practical obstacles to granting habeas rights are also (I assume) greater in the case of detainees at Bagram. One might distinguish detainees at Bagram from those at Guantanamo on either of those grounds.

On the other hand, the "status of the detainee and the adequacy of the process through which that status determination was made" were also important to the Court in Boumediene:

"The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court's assertion that they were "enemy alien[s]." Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8-10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution's witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing "Regulations Governing the Trial of War Criminals" in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34-40.

In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review."

On this score, Bagram detainees are even worse off than detainees at Guantanamo, as far as I can tell. (From the NYT about a year ago: "Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said.") Insofar as this consideration motivated the Court, it would seem to support the extension of habeas rights to Bagram detainees.

If I were either on the Supreme Court or in the Obama administration, one other consideration would weigh strongly with me. The best reason not to extend habeas rights to non-citizens at Bagram, I think, is that it is a prison in the middle of a war zone, many of whose prisoners are prisoners of war. As I said above, I do not think that prisoners of war (in the normal sense of that term) are entitled to habeas rights. Moreover, other things equal, I would rather not have federal courts scrutinizing the workings of prisons run by the military in the middle of a war zone. I think it's a good thing that we have a system of military justice set up for that purpose, and my presumption would be that it, rather than the federal courts, should deal with prisoners in theaters of war.

However, it was neither me nor the federal courts that muddied the distinction between the jurisdictions of the federal and military courts, thereby making it impossible for the federal courts to simply defer to the military in these matters. It was the Bush administration. They were the ones who sent CIA agents all over the world kidnapping people, flew those people from places like Thailand into a war zone, and then turned around and said: heavens, you cannot scrutinize what we did -- you'd be interfering with the conduct of the military in wartime!

As far as I can tell, it was not the military that captured Amin Al Bakri. He was not captured within a thousand miles of a battlefield. He was moved to a battlefield. And some detainees were moved to Bagram rather than Guantanamo precisely because the Court had ruled that detainees at Guantanamo had rights the Bush administration did not want to give them:

"Other military and administration officials said the growing detainee population at Bagram, which rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures, was in part a result of a Bush administration decision to shut off the flow of detainees into Guantanamo after the Supreme Court ruled that those prisoners had some basic due-process rights."

If I were either the Obama administration or the Court, I would hold that anyone our government detains for any substantial period of time (say, a couple of weeks -- long enough to exclude cases in which, say, DEA agents capture someone in Colombia and turn that person over to the Colombian government ASAP, but not longer than necessary) has the right to file for habeas corpus unless s/he was detained in the course of military conflict. I'm not sure how the boundaries between military conflict and everything else should be defined, but I think it cannot possibly extend to the kidnapping of people over two thousand miles away, in a peaceful country.

If the Bush administration had not decided to start kidnapping people and moving them into military prisons in war zones, we would not have had to decide these questions. We could have assumed that the people in those prisons were actual prisoners of war, especially if the Bush administration had also allowed the Army to set up the kinds of tribunals it usually uses to decide which people were rightly detained and which were not.

Now, unfortunately, the Courts have to decide whether or not to allow the government a way of circumventing the law and the Constitution, at least as regards non-citizens: kidnapping them abroad, moving them into the middle of a war zone, and then arguing that any judicial intervention into their captivity would constitute interference with the military's conduct of a war. The Bush administration was reckless enough to use the military as a kind of legal shield. It is up to the Courts to prove them wrong.

All that said, I don't see this decision by the Obama administration as a complete calamity. The question whether detainees at Bagram have habeas rights is, I think, genuinely difficult. Moreover, habeas rights are not the only remedy for these cases. If the Obama administration establishes a decent system for deciding which Bagram prisoners were rightly detained and which were not, a system within which the prisoners have roughly the same rights as the plaintiffs in the Eisentrager case, I will be content -- especially if they also declare that the Bagram inmates are prisoners of war and treat them accordingly, and double especially if they make it clear that according to the US, people who are imprisoned by the government must either fall under one of the Geneva Conventions or be tried in civilian court (or be deported, or some other normal thing.)

Because what matters most to me is that there be no category of people who have no legal rights, and no place where we can hold them with impunity; and that people we imprison should have the right to contest their detention in a fair proceeding, unless we have granted them the rights afforded prisoners of war under the Geneva Conventions.

Hilzoy 2:10 AM Permalink | Trackbacks | Comments (18)

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Comments

What are you doing up at this hour of the night?

Posted by: steveb on February 24, 2009 at 2:56 AM | PERMALINK

Part of this debate hinges on the distinction between detainees and prisoners of war. Traditionally POWs are under the military's control and aren't released until the war in question is over. POW rights fall under the Geneva Conventions definining the standards of international law for humanitarian concerns.

Calling someone a "detainee" as distinct from a POW suggests they were captured by civilian authorities (police, etc.) and therefore fall under the civilian justice system with habeus and other rights.

And Steveb, sometimes your best, clearest thinking occurs in the middle of the night. Give it a try sometime.

The gray area, subject to so much debate, occurs when the military detains "suspected combatants" and when police detain, say, someone preparing to conduct violent acts (like making a suicide vest). And what about the wives and cousins living in the same house as someone stockpiling explosives? How complicit are they? Should they be treated like POWs or "detainees?"

Guerilla war blurs jurisdictions and the rights that apply to which people. It's not an easy call. What is clear, though, is that torture and murder are never acceptable. The whole administration of wartime justice, and what principles apply, needs transparency just like government spending.

Posted by: pj in jesusland on February 24, 2009 at 4:04 AM | PERMALINK

the idea of indefinite imprisonment without charge or recourse should be abhorrent to every decent human being. If you think someone has done something illegal, is known to be conspiring to do something illegal, or is grievously threatening you, the burden proof is on you to prove it within a reasonable time frame. Disappearing people because its inconvenient to prove what they did or plan to do is contrary to notions of civilized people and itself should be treated as a crime.

Posted by: pluege on February 24, 2009 at 5:18 AM | PERMALINK

Meet the new boss, same as the old boss.

Posted by: klyde on February 24, 2009 at 6:07 AM | PERMALINK

I'm still patiently waiting---with a patience worn dangerously thin by the years in which the Bush Administration abused that patience---for the current Administration to identify the exact terms under which this particular individual was removed from his specific course: Yemen to Thailand. It may well prove out that he was, indeed, within a "theater-of-operations" zone, as a simple examination of a map could easily put his travel path either in, or over, Afghan territory. But if the Administration wishes to ask the world to swallow such a precondition for limitless imprisonment, then they've just cooked themselves a stew that will choke them.

By this reasoning, any American entering any geographic zone, deemed by any of the occupants of that zone to be "in or near a hostile theater of military operations" would likewise be subject to unrestricted detention---and all that that implies. Given that a portion of the Republic itself might be construed as meeting such a politically-vague definition, coupled with the "threshold-militaristic rhetoric" spewed forth by certain fools of the conservative persuasion, a magnanimous posture on the part of the Administration would be, at the very least, advisable at this time---last the Administration finds itself agreeable with the notion of rendering US citizens to Bagram on the tip-toe notion that the Citizen is within the boundaries of the United states, as is a plane-load of bullets bound for the US garrison in Bagram, and that the Citizen is committing overt acts against the military---like trying to convince his fellow citizens not to enlist....

Posted by: Steve W. on February 24, 2009 at 6:54 AM | PERMALINK

Hilzoy,

It should be simple. Habeus rights shouldn't be seen as flowing from the US constitution, but rather from precedents in international law. It's not as if the US invented the concept (c.f. Magna Carta).

Fighting against the US isn't in and of itself a war crime. Becoming a POW isn't in and of itself a war crime. There's no habeas right involved in being a POW, although there can be such a right in challenging that status.

Those detained because they are alleged to have committed a crime, or charged with a crime - even if they are members of a military - should be allowed habeas rights under international law. That would be fully in accord with the Conventions and international precedent.

Regards, C

Posted by: Cernig on February 24, 2009 at 7:18 AM | PERMALINK

I should note that even POWs have a right to something like a habeas proceeding. It is limited in scope: is the person an enemy combatant? It also need not take the form of a court-martial, IIRC. But NOBODY, I repeat NOBODY, may be detained by any time without a right to some tribunal that has the power to release them, if the facts so prove according to the law.

Posted by: Joe S. on February 24, 2009 at 8:01 AM | PERMALINK

While people captured far away from a conflict obviously have habeus rights, what about those civilians who were picked up at random there in Kabul or other places in Afghanistan? Among the prisoners that are known to have been picked up are a chicken farmer with the same name as someone in the Taleban, a taxi driver who was picked up for no reason at all, and I sincerely doubt they were the only ones. It seems to me that in the interests of justice and actually winning "hearts and minds" that anyone who claims to be falsely arrested should have some recourse, and that there should be some legal procedure that passes the smell test to determine if, in fact, everyone is an "enemy combatant" whatever that means.

Posted by: Texas Aggie on February 24, 2009 at 8:29 AM | PERMALINK

The less structured nature of war in these times, besides being an argument for simply staying out of such wars wherever possible, is going to create some tough calls.

But for someone to be a POW, then they should have, at a minimum, been captured in a theatre of war, and been captured in a battle, or with tangible evidence of being a partisan for the other side.

If we're detaining someone but not as a POW, then they should have habeas rights.

Posted by: low-tech cyclist on February 24, 2009 at 9:03 AM | PERMALINK

Why do you use the term "prisoner" here:

in, say, 1991 whether Iraqi prisoners whom we were holding in Kuwait

But the term "detainee" here:

those detainees at Bagram who were captured on or near an actual battlefield

It's long past time we called the Afghan and Iraqi POWs prisoners, not "detainees". The term "detainee" was invented by Dumsfeld and Cheney in an attempt to pretend they weren't protected by the Geneva Conventions. Of course, this meant that they had to pretend the 3rd Geneva Convention was the last one, since the 4th covered these people regardless, but the US media happily played along and now even the liberal blogosphere uses the Orwellian word "detainee".

Not only does the word "detainee" obfuscate the legal rights of these prisoners -- most of whom are really political prisoners -- but it also has a much more mild connotation than the word "prisoner". Think about the meanings of the word "detained" and "imprisoned".

If Russia or China had a similar situation I can guarantee you our media would use the terms "prisoner" and "political prisoner". Please start doing the same for these poor people.

Posted by: Cool on February 24, 2009 at 9:42 AM | PERMALINK

This is a mess, but I see where the Obama administration is coming from. The Bush administration used military operations and POW detention as a cover for illegal activities and war crimes, but the fact that they did that shouldn't mean that the Obama administration now has to do a complete rewrite of the laws of war. What they need to do is make sure that POW operations are being conducted within the law, and get into Bagram and figure out who all is there and why, and clean it up. It's going to take quite a while to sort out.

But what I object to is the hysterical assertion that the Obama administration is claiming that these prisoners have 'no' rights. That's not their claim at all - they're claiming that they don't have the right to challenge their detention in US civilian courts, which has always been the case with prisoners of war.

The Bush administration, by making up a new designator for prisoners - 'enemy combatants' as opposed to prisoners of war - tried to claim that this new designation means that the prisoners they are holding have no rights whatsoever. Not even Article 3 rights, which outline the rights against kidnapping, torture, cruel and degrading treatment, and murder. They almost had to try to make that claim, because they WERE kidnapping people and subjecting them to torture, cruel and degrading treatment, and in some cases murder.

The problem for them is that Article 3 is called the General Article because it's the same in all the Geneva Conventions, not just the one pertaining to POWs, and Article 3 applies to EVERYONE, not just POWs. You can't kidnap and torture ANYONE regardless of their designation.

And I guarantee you that Obama knows that, and he's not going to go lawyer-shopping for a lawyer to tell him otherwise.

Posted by: JoyceH on February 24, 2009 at 11:00 AM | PERMALINK

Upon inauguration, Obama could have transfered all of the Guantanamo prisoners (plus all other unconvicted US military prisoners held anywhere in the world) to either Abu Ghraib or Bagram, but he didn't. In the past 30 days, a review of the charges against them should have already been finished. All non-combatants should have already been returned to their countries. A responsibly president would consider this to be international priority number one when the world considers the USA to be a pariah nation. If Obama doesn't soon act to follow the Geneva Conventions, he will have lost a tremendous opportunity to improve the safety and security of the citizenry.

Posted by: JC on February 24, 2009 at 11:17 AM | PERMALINK

What a fine kettle of smelly fish, still raw after such a long stew, our figurehead left our new president.

The Bush incompetents couldn't even cook boullibaisse, let alone say or spell it. Throw in a stick of dynamite, scrape off the floating detritis for the pot, add some catsup and a lot of pepper. "Yummy, have a great dinner. Sorry, we have to attend some 'gawd-awful' fundraiser. Enjoy and make sure you vote!"

Posted by: Bob Johnson on February 24, 2009 at 11:19 AM | PERMALINK

One could probably make a case that Thailand is a battlefield. While Thailand is an ally, it also has some significant terrorist activity on the Malaysian border. And it is a well know transit point for money laundering and weapons smuggling. It would obviously be a rather expansive definition of 'battlefield,' but not necessarily incorrect. What's needed is a clearer definition of what a battlefield is in the context of warfare with non-state actors who are based throughout the world.

Posted by: fostert on February 24, 2009 at 11:58 AM | PERMALINK

Though our throats are filled with bile and we rail at the injustices we, yes US, yet visit on the innocent, choke down some water, cough it up, and, after a few deep breaths, realize we are starting from the bottom.

Whether you or I imagine a bright or blighted future, speak excrustiating facts about the present, or use the past as a talisman for the good and evil of our own purposes, toss in your chip. Join the game of saving the species we call homo sapiens.

This plea is neither off-message nor abstract from a discussion of constitutional probity. I believe President Obama, and those he has placed in the Department of Justice and other federal venue, are determined to return we Americans to the fundamentals celebrated each and every Fourth of July.

Posted by: Bob Johnson on February 24, 2009 at 11:59 AM | PERMALINK

Two other comments. First: Yemen is a friendly country? I'm not sure I agree with that. But also, what business did Mr. al Bakri have in Thailand? He could be al Qaeda and trying to buy RDX explosives in Yala. Or he could be a food importer trying to buy rice in Khon Kaen. Or he could just be trying to buy a sex slave in Mae Hong Son. With Thailand, the possibilities are endless.

Posted by: fostert on February 24, 2009 at 12:49 PM | PERMALINK

One way to handle this would be to continue arguing the military-prison-in-a-war-zone assertion, while moving some or all of the prisoners in question to somewhere that isn't a military prison in a war zone. We have those places.

Posted by: paul on February 24, 2009 at 1:30 PM | PERMALINK

The fact that there have not been any access to challenge their status as criminal or related to an ongoing fight will probably be the turn the court eventually takes.

It's the one step in the Geneva Conventions which the courts seem to assume to have been taken which have not.

Posted by: Crissa on February 24, 2009 at 4:13 PM | PERMALINK




 

 

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