Surprise! In Court, Obama Channels W.

By William Fisher

In what could become an historic decision, a Federal judge has ruled that non-Afghan citizens rendered by the U.S. to Bagram prison in Afghanistan
have a constitutional right to challenge their detention in American civilian courts.

The decision by Federal Judge John Bates was a stunning rejection of unlimited power for the executive branch of government espoused by former President George W. Bush and his successor, President Barack Obama.

In a case involving four prisoners at the Bagram Air Force Base, Judge Bates ruled that the cases of three of the detainees are “virtually identical” to prisoners at the Navy base at Guantánamo Bay, Cuba. Bates said that the three enjoy the same legal rights granted by Supreme Court last year.

The three detainees claim they were captured outside Afghanistan and have been imprisoned for years without trials. They asked the court to grant them their right to challenge their detention and have a judge to review the evidence against them. They seek their release under the ancient right of “habeas corpus.”

The Supreme Court ruled last year that prisoners at Guantánamo have a constitutional right to habeas corpus.

That right, Bates wrote, was “forged to guard against” executive abuses such as the “arbitrary exercise of the government’s power to detain. Bates was appointed by former President George W. Bush.

The judge did not rule that the fourth prisoner — an Afghan citizen who was captured outside Afghanistan — had a right to habeas corpus, instead ordering additional briefings on that case. Noting that such a ruling could lead to friction with the Afghan government, he also wrote that whether any particular overseas detainee has habeas corpus rights would depend on a case-by-case analysis. Criteria, he said, would include a number of factors, including citizenship, location of capture, length of detention, and the degree to which the U.S. military has total control over its prisons.

There are approximately 600 detainees at Bagram, of most of who are reportedly Afghans. But, despite a court order, the U.S. has not released details of who is held there.

Human rights advocates generally applauded the Bates decision.

Barbara Olshansky, Litigation and Advocacy Director of the International Justice Network (IJN), the not-for-profit legal advocacy group that originally brought the case to court, said she was “very gratified to see the judiciary step up to the plate again and continue to act in their critical role as a check on executive power. Judge Bates' opinion stands as a historic marker for the principle that wherever we act as a government around the world, we must be held accountable for our actions."

Georgetown University law professor David Cole, one of the nation’s foremost constitutional lawyers, told us that the Bates decision “rests on the sound principle that the executive should not be permitted to evade judicial scrutiny by shipping its prisoners to Bagram rather than Guantanamo, and brings us closer to the rule of law.”

A similar view was expressed by Sahr MuhammedAlly of Human Rights First, who has spent substantial time in Afghanistan. He told us, "A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to conform all its detention practices to the requirements of human rights and humanitarian law. "

"Bagram must not be allowed to remain a law-free zone," he added.

And Jonathan Hafetz, an attorney with the American Civil Liberties Union National Security Project, called the Bates decision “yet another rebuke to the government's claim that it is free to establish law-free zones.”

He told us, “As the district court rightly concluded, the United States cannot escape the core protections or restraints of the Constitution by imprisoning people at Bagram rather than Guantánamo. Only a complete restoration of the rule of law at all U.S.-run prisons can achieve a return to justice and American values."

Hafetz was also critical of the Obama Administration. He told us, “The new administration is adhering to the old administration's approach by claiming it can avoid habeas corpus review and thus a check on its detention power.”

He said, “In many ways, Bagram has become the new Guantanamo, only worse because the process the detainees receive there is inferior, the treatment worse, and the public scrutiny even more superficial. The new administration also seems to be following the old administration's implausibly narrow reading of the Supreme Court's most recent decision.”

It is unclear whether the Obama Department of Justice (DOJ) will appeal Judge Bates ruling. A DOJ spokesman said the decision was still being reviewed.

IJN is the only organization litigating the cases of detainees held in U.S. custody in Afghanistan. It originally brought the cases in October 2006, on behalf of the four foreign nationals captured outside Afghanistan and brought to Bagram where they have been held without charge for more than six years.

The position that federal courts have no jurisdiction to hear lawsuits filed on behalf of foreign detainees in Afghanistan was first argued by the Bush
administration. During the Obama administration’s second month in office it told Judge Bates that it held the same view, a position that surprised and confused many human rights advocates who had supported Obama’s candidacy.

The Obama Administration has also followed the Bush positions in a number of other recent cases involving the “state secrets” doctrine, which argues that some cases cannot be heard in federal courts because the evidence would compromise national security.

In the aftermath of the Bates decision, human rights advocates are pondering how the ruling will impact the Obama administration’s efforts to formulate a policy about terrorism detainees.

Some critics of Obama administration detention policy have begun calling Bagram “Obama’s GITMO,” charging that the new president is shipping detainees to the Afghan prison to evade the Supreme Court’s ruling giving habeas corpus rights to prisoners at Guantanamo.

On his first day in office, Obama ordered the prison in Guantánamo Bay closed within a year and began a case-by-case review of the evidence against each of the roughly 240 detainees still being held there. He also ordered the closing of the “black site” secret prisons operated by the U.S. Central Intelligence Agency.

One of the seemingly intractable problems faced by the Obama administration is where to send Guantanamo detainees who are freed. Among these detainees is a group of 17 Chinese Muslims – known as Uighurs – who the U.S. says can be freed because they do not represent a threat. A federal judge ordered them released into the U.S. but that decision was overturned by the Justice Department’s appeal.

The U.S. has contended that they may be subjected to torture and persecution if they are returned to China, but argued that federal courts have no authority to order them released in the U.S. because that is a matter of immigration, not criminal, law.

Few countries have been open to accepting freed U.S. detainees – for reasons based on their own security and also, in the case of the Uigurs, out of fear of retaliation by China.

In the aftermath of the Bates decision – if it survives an appeal by the government -- the Obama administration may also have to add to its problems the question of where to send prisoners who are freed from Bagram.