Monday, September 14, 2009
The Defense Department announced that it will implement case review panels for detainees at Bagram Air Base in Afghanistan, offering detainees their first meaningful opportunity to challenge their detention.
Bagram houses about 600 detainees, some of whom have been there for six years. Unlike detainees at Guantanamo, they have had no access to counsel and no significant measure of due process in challenging their detention.
According to the announcement, new detainees will undergo a case review within 60 days of being incarcerated, with further reviews about every six months. Detainees will have a "personal representative," not an attorney, to help them through the review process.
The Pentagon says that the changes are designed to keep only the most dangerous detainees locked up. But the move may be designed for another reason, too. The government may see this as enhancing its position in its appeal of Judge Bates's (D.D.C.) ruling last spring that the privilege of habeas corpus extends to Bagram. Particularly, the government may use this to argue that it has provided adequate process to detainees challenging the basis of their detention--a key factor, under Boumediene, in Judge Bates's ruling.
But in Boumediene, the Court ruled that habeas extended to Guantanamo because the procedures under the Detainee Treatment Act did not provide an adequate substitute for habeas review. The changes at Bagram would have to include processes that well exceed those in the DTA, and compare favorably to full habeas review, for this argument to take. The preliminary sketch in the Pentagon's announcement falls short. (Most notably absent: the right to counsel.)
Still, the administration will undoubtedly press its argument that habeas at Bagram raises practical obstacles that make it unworkable--largely a function of Bagram's location in an active combat zone. Bates's ruling--that Bagram is really no different than Guantanamo, and, anyway, any practical obstacles unique to Bagram are of the government's own making--may be at its most vulnerable on this point. (Given the ruling in Boumediene, this may be all that's left for the government.)