Thursday, April 2, 2009
Judge Bates ruled that three foreign nationals, detained outside of Afghanistan and brought to Bagram for detention, could challenge their detention in federal court under the Supreme Court's ruling in Boumediene v. Bush. (The Court in that case held that the privilege of habeas extends to detainees at Guantanamo Bay.) Bates:
Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene--they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be "enemy combatants," a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumedienereceived. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the "practical obstacles" inherent in resolving a Bagram detainee's entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war. But those obstacles are not as great as respondents claim, and certainly are not insurmountable. And importantly, for these petitioners, such practical barriers are largely of the Executive's choosing--they were all apprehended elsewhere and then brought (i.e., rendered) to Bagram for detention now exceeding six years.
Bates ruled that a fourth detainee, an Afghan, could not similarly challenge his detention in federal court, because "practical obstacles"--"friction with the 'host' country"--"tip the balance of the Boumediene factors against his claim to habeas corpus review."
This is obviously a major ruling and significant victory for an unknown number of detainees at Bagram. (Bates was careful to limit his opinion: only non-Afghans captured outside of Afghanistan and subsequently transferred to Bagram enjoy the privilege under his ruling. We don't know how many fit this category.) The administration has not yet indicated whether it will appeal.
A couple things to note in Bates's ruling. First, he ruled that the Court in Boumediene invalidated Section 7 of the Military Commissions Act of 2006--the section that amended the federal habeas staute to deny habeas to "enemy combatants"--as applied to detainees at Guantanamo, and not on its face. This is hardly a surprise, given the the way the Court circumscribed its ruling in Boumediene. But as a result, Bates ruled that Section 7 continued to bar Bagram detainees from asserting habeas in federal court under the federal habeas statute. (Detainees in this case thus relied upon the "constitutional right to habeas corpus as protected by the Suspension Clause"--the same way the Boumediene detainees got into federal court.)
Bates also subdivided the Boumedienefactors into six, plus a "tacit" seventh: (1) citizenship of the detainee; (2) status of the detainee; (3) adequacy of process through which the status determination was made; (4) "nature of the site of apprehension"; (5) "nature of the site of detention"; (6) practical obstacles in resolving the detainee's entitlement to habeas. There's nothing really controversial in this subdivision. But Bates's seventh, "tacit" factor--"the length of a petitioner's detention without adequate review"--is new. This factor--from Bates's reading of the Court's concern in Boumediene with potential indefinite executive detention--reflects Bates's concern throughout the opinion with unchecked executive authority to detain. He flatly rejected the administration's separation-of-powers argument for exactly that reason: "The writ is a judicial check on Executive detention."
Finally, Bates noted that the practical difficulties in extending habeas to Bagram are "significantly mitigated today by technological advances." He cited video-conferencing of detainees at Guantanamo as an example of how technology may help overcome challenges in allowing Bagram detainees access to U.S. courts.
In some ways, Bates's ruling is an unsurprising extension of Boumediene. He carefully compares a narrow class of Bagram detainees--aliens who were captured outside of Afghanistan and rendered there for detention--to Guanantamo detainees and quite reasonably concludes that their situations are almost exactly the same.
Even so, the decision is a significant step in opening up U.S. courts to foreign detainees to challenge their detention and in judicial checks over the President in executing a war.
Politically, this could be a tremendous gift to the Obama administration in dealing with detention policy left over from the Bush administration at Bagram. If the administration declines to appeal, for example, it might use the decision as political coverto expedite the release or transfer of these detainees. In other words, the decision could help the administration dodge those inevitable claims that it's soft on terrorism by allowing it to blame it on the courts.
Whether the administration appeals or not, this should be a swift kick to reevaluate overseas detention policies. If the administration don't do it now, it may find itselves doing it through innumerable habeas claims in federal court.