Tuesday, April 14, 2009
The Obama administration last Friday filed a motion to certify for interlocutory appeal a federal district court's April 2, 2009, order extending the privilege of habeas corpus to certain detainees at Bagram Airfield in Afghanistan. (Thanks to Lyle Denniston at SCOTUSblog for posting the motion.)
Recall that U.S. District Court Judge John D. Bates (D.D.C.) ruled that habeas extended to non-Afghans captured outside Afghanistan and brought to Bagram for detention. My post on that decision is here.
Now the Obama administration seeks to appeal Bates's order. The administration's argument boils down to four distinctions between detention at Bagram and detention at Guantanamo. (The Supreme Court, of course, held that habeas extends to Guantanamo in Boumediene v. Bush; Boumediene is therefore the government's foil.) Unlike Guantanamo, Bagram is in a theater of war on foreign territory over which the U.S. has neither de jure nor de facto sovereignty; the place of capture doesn't matter under Boumediene, but even if it does detainees at Bagram here were not captured or held in a place where judicial review would have been available; judicial deference to the President's military judgments regarding detention should be greater during an ongoing war; and extending habeas to Bagram would present significant practical difficulties not at issue for Guantanamo.
The similarities and differences between Bagram and Guantanamo will certainly drive the courts' rulings on the case, as all the other issues--and the most basic issue of off-shore extension of habeas--were heavily litigated and clearly decided just last year in Boumediene. The courts would do well to pay particular attention to how habeas has plays at Guantanamo--whether video-conferencing works, for example. Judge Bates made particular reference to this kind of practical consideration in his ruling. These practical issues could make all the difference, especially as the Obama administration relied heavily on the potential of habeas claims to disrupt combat operations in its motion.
So is the Obama administration different than the Bush administration on habeas? The administration's motion alone doesn't give us enough material to answer that question, but a couple things point in the direction of no change. For example, the administration, as mentioned above, relies heavily upon the potential of habeas claims to disrupt combat operations, but offers no support for this conclusion other than the bare fact that Bagram is in Afghanistan and that Afghanistan is different than Guantanamo. (We don't learn why or how Bagram's location makes habeas claims more disruptive to military operations than habeas claims at Guantanamo, e.g.) In addition, the administration also makes much of the likely disclosure of national security information. But again, it doesn't tell us why or how this is different at Bagram than at Guantanamo. In short, the administration argues that the courts have no business in this area and that they should trust it. (The administration says as much: "This Court's exercise of jurisdiction over these petitions could also implicate the Executive's ability to succeed in armed conflict and to protect United States' forces. Similarly, the Court's decision threatens the public interest by sanctioning second-guessing of conclusions that are at the core of the war-making powers--judgments as to the level of activity or association with potential terrorism and other activities that warrant detention of an individual so as to effectively subdue and incapacitate the enemy." The lines could have come from a Bush administration brief.)
One key difference is the Obama administration's detention review task force. The administration has made a commitment through the task force to review detention policies, and it quite rightly says that the courts' interventions here might interfere with that work. Of course, we won't know how seriously to take the administration until the task force releases its recommendations and President Obama acts. This may be well into the summer or beyond. (The task force is scheduled to provide a preliminary report by July.)
The administration also avoids any blanket assertion of the State Secrets privilege or boundless claims of inherent executive authority. (Perhaps the broadest claim from the motion is quoted above.) But the absence of these claims isn't enough to distinguish between the Obama administration and the Bush administration in their positions on off-shore habeas.