Monday, February 23, 2009
The administration on Friday declined Judge Bates's (D.D.C.) invitation to "refine" the Bush administration position on whether the privilege of habeas corpus extends to the U.S. Airbase in Bagram, Afghanistan. I posted most recently on this here.
The Bush administration argued that the Bagram Airbase was within the theater of active combat--the war in Afghanistan--holding foreign enemy combatants captured within that theater, and therefore the Supreme Court's ruling in Boumediene v. Bush did not govern. (The Court in Boumediene held that the privilege of habeas extended to detainees at Guantanamo Bay, because Guantanamo is under U.S. control and not within a theater of war.)
In a habeas claim of a Bagram detainee before the D.C. District, Judge Bates gave the Obama administration until February 20 to reconsider that position. The administration on Friday declined to change.
This was one of several closely watched decisions in the early days of the Obama administration that would signal the extent of the changes we might see in the war on terror and assertions of executive authority under President Obama. By this measure, the decision Friday was a disappointment to those who hoped to see significant changes.
But this issue--whether habeas extends to overseas detention facilities within a theater of active combat--is perhaps the least controversial among the several recent and imminent decisions of the new administration: The claim here--that habeas does not extend to Bagram--is more strongly rooted in practice and precedent than nearly any other significant Bush administration claim now before the courts. The Obama administration's decision in this case shouldn't be understood as merely maintaining the Bush administration policy, because the policy here may be most faithful (among the several policies now before the courts) to the law.
The administration's recent decision on the State Secrets Privilege and its forthcoming decision on Executive Privilege are far greater defining issues for the administration. On the former, of course, the Obama administration recently decided to maintain the Bush administration position. We'll see what happens within the week on the latter decision. See here for more on changes in the war on terror and assertions of executive authority in the Obama administration.