There is no credible justification for this move on Obama’s part, and I have to say, it’s terribly distressing:
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. 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.
In a court filing, the Justice Department also asked District Judge John D. Bates not to proceed with the habeas-corpus cases of three detainees at Bagram Air Base outside Kabul, Afghanistan. Judge Bates ruled last week that the three — each of whom says he was seized outside of Afghanistan — could challenge their detention in court.
Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.
“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.
Glenn Greenwald points out that many of the prisoners at Bagram were moved there from Guantanamo after the Supreme Court ruled, in its June, 2008, Boumediene decision, that Gitmo detainees had the right to challenge their detention in federal court. It was the former administration that moved these detainees to Bagram — but in its insistence that Bagram inmates have no habeas corpus rights, Obama is, in fact, embracing the Bush administration’s cynical shell game (emphasis is Glenn’s):
It was once the case under the Bush administration that the U.S. would abduct people from around the world, accuse them of being Terrorists, ship them to Guantanamo, and then keep them there for as long as we wanted without offering them any real due process to contest the accusations against them. That due-process-denying framework was legalized by the Military Commissions Act of 2006. Many Democrats — including Barack Obama — claimed they were vehemently opposed to this denial of due process for detainees, and on June 12, 2008, the U.S. Supreme Court, in the case of Boumediene v. Bush, ruled that the denial of habeas corpus rights to Guantanamo detainees was unconstitutional and that all Guantanamo detainees have the right to a full hearing in which they can contest the accusations against them.
In the wake of the Boumediene ruling, the U.S. Government wanted to preserve the power to abduct people from around the world and bring them to American prisons without having to provide them any due process. So, instead of bringing them to our Guantanamo prison camp (where, the U.S. Supreme Court ruled, they were entitled to habeas hearings), the Bush administration would instead simply send them to our prison camp in Bagram, Afghanistan, and then argue that because they were flown to Bagram rather than Guantanamo, they had no rights of any kind and Boudemiene didn’t apply to them. The Bush DOJ treated the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game — fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process. Put another way, you just close Guantanamo, move it to Afghanistan, and — presto — all constitutional obligations disappear.
Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue — the Obama DOJ argued, as The New York Times‘s Charlie Savage put it, “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.” Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country — abducted from their homes and workplaces — and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind — as long as they are kept in Bagram rather than Guantanamo.
Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo. Notably, the district judge who so ruled — John Bates — is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge. In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind. …
Kevin Jon Heller at Opinio Juris tells Glenn he needs to be more precise (emphasis in original):
For some reason, Glenn Greenwald seems to think the appeal is inconsistent with candidate Obama’s position on habeas:
Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
It’s patently obvious that there is no contradiction here. Obama was criticizing creating a legal black hole at Guantanamo; he said nothing about not creating one at Bagram…