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Obama wins the right to detain people with no habeas review

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May 21, 2010
By Glenn Greenwald
Salon.com
(updated below – Update II)

Few issues highlight Barack Obama’s extreme hypocrisy the way that Bagram does.
As everyone knows, one of George Bush’s most extreme policies was abducting
people from all over the world — far away from any battlefield — and then
detaining them at Guantánamo with no legal rights of any kind, not even the
most minimal right to a habeas review in a federal court. Back in the day, this
was called “Bush’s legal black hole.” In 2006, Congress codified that policy
by enacting the Military Commissions Act, but in 2008, the Supreme Court, in
Boumediene
v. Bush
, ruled that provision unconstitutional, holding that the
Constitution grants habeas corpus rights even to foreign nationals held at Guantánamo.
Since then, detainees have won
35 out of 48 habeas hearings
brought pursuant to Boumediene, on
the ground that there was insufficient evidence to justify their detention.

Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram — including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned. Amazingly, the Bush DOJ — in a lawsuit brought by Bagram detainees seeking habeas review of their detention — contended that if they abduct someone and ship them to Guantánamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind. In other words, the detainee’s Constitutional rights depends on where the Government decides to drop them off to be encaged. One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers “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.”

But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held that Boumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram. I reviewed that ruling here, in which Judge Bates explained that the Bagram detainees are “virtually identical to the detainees in Boumediene,” and that the Constitutional issue was exactly the same: namely, “the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely.”

But the Obama administration was undeterred by this loss. They quickly appealed Judge Bates’ ruling. As the NYT put it about that appeal: “The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.” Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind. When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it “one of the worst decisions in the history of this country.” But Obama hailed it as “a rejection of the Bush Administration’s attempt to create a legal black hole at Guantánamo,” and he praised the Court for “rejecting a false choice between fighting terrorism and respecting habeas corpus.” Even worse, when Obama went to the Senate floor in September, 2006, to speak against the habeas-denying provisions of the Military Commissions Act, this is what he melodramatically intoned:

As a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantánamo without even getting one chance to ask why they were being held and being able to prove their innocence. . . .

By giving suspects a chance — even one chance – to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

Can you smell the hypocrisy? How could anyone miss its pungent, suffocating odor? Apparently, what Obama called “a legal black hole at Guantánamo” is a heinous injustice, but “a legal black hole at Bagram” is the Embodiment of Hope. And evidently, Obama would only feel “terror” if his child were abducted and taken to Guantánamo and imprisoned “without even getting one chance to ask why and prove their innocence.” But if the very same child were instead taken to Bagram and treated exactly the same way, that would be called Justice — or, to use his jargon, Pragmatism. And what kind of person hails a Supreme Court decision as “protecting our core values” — as Obama said of Boumediene — only to then turn around and make a complete mockery of that ruling by insisting that the Cherished, Sacred Rights it recognized are purely a function of where the President orders a detainee-carrying military plane to land?

Independently, what happened to Obama’s eloquent insistence that “restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe“? How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States? If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?

One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General’s office that argued the administration’s position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama’s executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?

This is what Barack Obama has done to the habeas clause of the Constitution: if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantánamo, then you have the right to have a federal court determine if there is sufficient evidence to hold you. If, however, President Obama orders that you be taken to from Thailand to Bagram rather than to Guantánamo, then you will have no rights of any kind, and he can order you detained there indefinitely without any right to a habeas review. That type of change is so very inspiring — almost an exact replica of his vow to close Guantánamo . . . all in order to move its core attributes (including indefinite detention) a few thousand miles North to Thompson, Illinois.

Real estate agents have long emphasized “location, location, location” as the all-determining market factor. Before we elected this Constitutional Scholar as Commander-in-Chief, who knew that this platitude also shaped our entire Constitution?

UPDATE: Law Professor Steve Vladeck has
more on the ruling
, including “the perverse incentive that today’s decision
supports,” as predicted by Justice Scalia in his Boumediene dissent:
namely, that a President attempting to deny Constitutional rights to detainees
can simply transfer them to a “war zone” instead of to Guantánamo and then claim
that courts cannot interfere in the detention. Barack Obama quickly adopted
that tactic for rendering the rights in Boumediene moot —
the same rights which, less than two years ago, he was praising the Supreme
Court for safeguarding and lambasting the Bush administration for denying. Vladeck
also explains why the appellate court’s caveat — that overt government manipulation
to evade habeas rights (i.e., shipping them to a war zone with the specific
intent of avoiding Boumediene) might alter the calculus — is rather
meaningless.

UPDATE II: Guest-hosting for Rachel Maddow last night,
Chris Hayes talked with Shayana Kadidal of the Center for Constitutional Rights
about the Bagram ruling and Obama’s hypocrisy on these issues, and it was quite
good, including a video clip of the 2006 Obama speech I excerpted above:

[Ed. note: Please watch the source for further updates, as Greenwald often
continues to update his stories as related information becomes available.]


RELATED

Detainees Barred From Access to U.S. Courts
By CHARLIE SAVAGE
May 21, 2010
NYTimes.com

WASHINGTON — A federal appeals court ruled Friday that three men who
had been detained by the United States military for years without trial in Afghanistan
had no recourse to American courts. The decision was a broad victory for the
Obama administration in its efforts to hold terrorism suspects overseas for
indefinite periods without judicial oversight.
Related

The detainees, two Yemenis and a Tunisian who say they were captured outside
Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned
at the American military prison at Bagram Air Base.

But a three-judge panel of the United States Court of Appeals for the District
of Columbia ruled unanimously that the three had no right to habeas corpus hearings,
in which judges would review evidence against them and could order their release.
The court reasoned that Bagram was on the sovereign territory of another government
and emphasized the “pragmatic obstacles” of giving hearings to detainees
“in an active theater of war.”

The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark
2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantánamo
Bay, Cuba. A lower court judge had previously ruled that the three Bagram detainees
were entitled to the same rights, although he had found that others captured
in Afghanistan and held there were not.

A lawyer for the detainees, Tina Foster, said that if the precedent stood,
Mr. Obama and future presidents would have a free hand to “kidnap people
from other parts of the world and lock them away for the rest of their lives”
without having to prove in court that their suspicions about such prisoners
were accurate.

“The thing that is most disappointing for those of us who have been in
the fight for this long is all of the people who used to be opposed to the idea
of unlimited executive power during the Bush administration but now seem to
have embraced it during this administration,” she said. “We have
to remember that Obama is not the last president of the United States.”

Senator Lindsey Graham, Republican of South Carolina and an influential lawmaker
in the long-running debate over detentions, called the ruling a “big win”
and praised the administration for appealing the lower court’s ruling.

“Allowing a noncitizen enemy combatant detained in a combat zone access
to American courts would have been a change of historic proportions,”
he said. “It also would have dealt a severe blow to our war effort.

“There is a reason we have never allowed enemy prisoners detained overseas
in an active war zone to sue in federal court for their release. It simply makes
no sense and would be the ultimate act of turning the war into a crime.”

It was not entirely clear how the ruling might affect detention policies for
terrorism suspects caught outside Afghanistan or Iraq. While the Obama administration
has stepped up the use of Predator drone strikes to kill terrorism suspects
and has relied on other countries, like Pakistan, to hold and interrogate suspects
who are captured alive, it is not known whether the United States has directly
captured anyone outside Afghanistan or Iraq recently — and, if so, where
it has taken them.

A Justice Department spokesman, Dean Boyd, would not comment on the decision.

David Rivkin, who filed a friend-of-the-court brief on behalf of the Special
Forces Association urging the court to side with the government, said the ruling
would have broad significance by removing doubts over whether the United States
could capture and interrogate terrorism suspects without worrying about having
to collect, in dangerous situations, evidence that would later stand up in court.

“This is an excellent decision,” said Mr. Rivkin, who was a White
House lawyer in the administration of the first President Bush. “It has
restored a considerable degree of sanity to what threatened to be a crazy legal
regime that would have deprived the United States, for the first time in history,
of the opportunity to capture and detain — outside of the United States,
in theaters of war — high-value combatants. That has been solved, and
it will apply to many other situations in the future.”

The case was brought on behalf of a Tunisian man who says he was captured in
Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002,
and another Yemeni man who says he was captured in 2003 at another location
outside Afghanistan that has not been disclosed. (The government has disputed
the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates of the Federal
District Court, an appointee of former President George W. Bush. The Bush and
Obama administrations had both urged Judge Bates not to extend habeas corpus
rights beyond Guantánamo, arguing that courts should not interfere with
military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the
three men who had filed suit and Guantánamo prisoners. His decision was
limited to non-Afghans captured outside Afghanistan — a category that
fits only about a dozen of the roughly 800 detainees at Bagram, officials have
said.

In urging the appeals court to let Judge Bates’s decision stand, lawyers
for the detainees argued that reversing it would mean that the government would
be able “to evade judicial review of executive detention decisions by
transferring detainees into active combat zones, thereby granting the executive
the power to switch the Constitution on or off at will.”

But in the appeal panel’s decision reversing Judge Bates, Chief Judge
David B. Sentelle said there had been no such gamesmanship in the decision to
bring the three detainees to Bagram because it happened years before the Supreme
Court’s Guantánamo rulings.

Still, he left the door open to approving habeas corpus rights for prisoners
taken to prisons other than Guantánamo in the future, writing, “We
need make no determination on the importance of this possibility, given that
it remains only a possibility; its resolution can await a case in which the
claim is a reality rather than speculation.”

Ms. Foster vowed to keep fighting. But Mr. Rivkin said that the detainees’
chances for overturning the decision were dim because the three appeals judges
spanned the ideological spectrum: Chief Judge Sentelle, appointed by President
Ronald Reagan; Judge Harry T. Edwards, appointed by President Jimmy Carter;
and Judge David S. Tatel, appointed by President Bill Clinton.

It could also be difficult to win a reversal by the Supreme Court, where five
of the nine justices supported giving habeas rights to detainees in the Guantánamo
case. Among the narrow majority in that case was Justice John Paul Stevens,
who is retiring.

The nominee to replace him, Elena Kagan, who as solicitor general signed the
government’s briefs in the case, would most likely recuse herself from
hearing an appeal of the decision, and a four-four split would allow it to stand.