Obama’s GITMO?

By William Fisher

Human rights advocates are expressing shock at a federal court ruling that detainees held by the United States in Afghanistan do not have the right to challenge their detention in a U.S. federal court -- and dismay that their path to a successful appeal to the U.S. Supreme Court may be blocked.

A lawyer for the detainees, Tina Foster, warned that if the precedent stood, U.S. President Barack Obama and future presidents would be able to “kidnap people from other parts of the world and lock them away for the rest of their lives” without ever having to prove their case in court.

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates, an appointee of former President George W. Bush, in Federal District Court. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said. The appeals court overturned that ruling.

The chances of a successful appeal to the Supreme Court look slim to none. Presumably, this case would come before the Supreme Court – if the Court decides to hear the case at all – after Justice John Paul Stevens retires and Justice-designate Elena Kagan takes his seat.

But since it was Kagan, as U.S. Solicitor General, who argued the government’s case against the Bagram detainees, she would almost certainly recuse herself from the appeal. This would result in a 4-4 decision which, according to the Supreme Court’s rules, would be a victory for the government.

Human rights advocates and Constitutionals scholars contacted by IPS were unanimous in condemning the Appeals Court ruling.

Chip Pitts, President of the Bill of Rights Defense Committee, called the ruling “warped and illegitimate” and said it “highlights the dire risks of excessive judicial deference to executive power.”

In overruling Judge Bates’ original decision, “the D.C. Circuit has made possible, and even likely, a return to the Bush administration approach of using end-runs around the Constitution to allow kidnapping of suspects, potentially indefinite detention, and the inevitable related abuses,” he said.

David Frakt, a former Guantanamo Bay defense counsel and now a professor at Western State University College of Law, told IPS, “The idea that the United States can seize someone anywhere in the world, then transport them to Afghanistan to be held indefinitely without access to counsel, courts or any avenue to meaningfully challenge the basis for their confinement simply by asserting, without any oversight or requirement of substantiation, that the individual seized is an enemy is deeply troubling.”

He added, ”The law of war does not support such unchecked authority. The potential for abuse is far too great to entrust this power solely to the Executive Branch.”

Nancy Talanian, Executive Director of No More Guantanamos, told IPS, “The judges’ confidence that the government would never transfer detainees to a prison site, such as a war zone, to evade habeas corpus review is bewildering, in light of the fact that the Bush administration created Guantánamo Bay prison precisely to evade judicial scrutiny.”

And Prof. Francis Boyle of the University of Illinois law school, called the decision “a serious set-back for international law, human rights, and the United States Constitution.”

He told IPS, “Bagram has become Obama's Guantanamo where he is detaining and abusing human beings beyond the reach of United States Courts and in violation of the Geneva Conventions.”

He continued, “Since Afghanistan is a party to the Rome Statute for the International Criminal Court, the highest level officials of the Obama administration could very well see themselves indicted by the ICC Prosecutor for what they are doing at Bagram and the numerous other detention centers in Afghanistan. The fact that the U.S. Courts will not act to protect the prisoners at Bagram satisfies the Rome Statute's requirement of "complementarity" and thus paves the way for the International Criminal Court to act. The ICC Prosecutor has already stated that he keeping the situation in Afghanistan under review.”

Marjorie Cohn, immediate past president of The National Lawyers Guild and a professor at the Thomas Jefferson School of Law, said the appellate court decision runs afoul of Supreme Court precedents.

She added, “Unfortunately, if the appellate court ruling in the Bagram case reaches the Supreme Court, it will likely be affirmed since Justice Stevens will be gone and Elena Kagan will recuse herself, resulting in a 4-4 tie."

And Daphne Eviatar, Human Rights First Senior Associate, said, "Under the current procedures, detainees have no right to representation by a lawyer, their hearings are not public and much of the evidence used against them remains secret. Even the rules governing the review board procedures have not been released publicly."

She continued, "It is impossible to have confidence that the United States is lawfully detaining actual enemy belligerents when their status is determined without disclosure and they can't even see all of the evidence used against them. In order to build confidence among Afghans and the rest of the world that it is lawfully detaining actual enemy belligerents, the United States should act transparently instead of withholding evidence from detainees and making determinations about their status based on secret evidence."