January 27, 2009
What to do with Detainees in Bagram, Afghanistan
The NYT reported today on President Obama's decision about what to do with 600 prisoners at the U.S. airbase in Bagram, Afghanistan. The report:
President Obama must now decide whether and how to continue holding the men at Bagram, most of them suspected of being Taliban fighters. Under the laws of war, they are being held indefinitely and without charge. He must also determine whether to go forward with the construction of a $60 million prison complex at Bagram that, while offering better conditions for the detainees, would also signal a longer-term commitment to the American detention mission.
The decision comes against the backdrop of detainees' cases in the D.C. District, testing whether habeas extends beyond Guantanamo--see Boumediene v. Bush--to Bagram. (I posted on these cases here.) Judge Bates gave the administration until February 20 to "refine" its legal position in the case.
The direction of the D.C. Distrct cases could impact the administration's decision on the Bagram facility: If habeas extends to Bagram, maintaining the facility would become a much greater hassle. On the other hand, it'll take some time for these cases to work their way to the Supreme Court (if it even takes them up), and in any event the detainees may very well lose: The fragile 5-member Boumediene majority may not be so sympathetic to a habeas claim of detainees at a truly overseas location and where the U.S. exerts less control than Guantanamo.
We'll keep an eye on any administration moves and the D.C. habeas cases.
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