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Genesee Valley Chapter — Not Obama, You Say?

Not Obama, You Say?

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on June 2, 2010. Three times the U.S. Court of Appeals for the D.C. Circuit has heard appeals involving the right of detainees at Guantanamo Bay to seek habeas corpus relief, and three times it has ruled against the detainees. Three times the U.S. Supreme Court has reversed it. The most recent case was Boumediene v. Bush, 553 U.S. 723 (2008). Ten days ago the Court of Appeals tried again, this time ruling on the petitions of three detainees at Bagram Air Force Base in Afghanistan. Somewhat to be expected, it held that the Military Commissions Act of 2006 stripped the courts of the power to hear the petitions and that the stripping in the Bagram detainees’ case did not violate the Suspension Clause of the Constitution. Maqaleh v. Gates, No. 09-5265 (D.C. Cir. 2010). The Suspension Clause prohibits the government from suspending the common law writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. Art. I, §9, cl. 2. The clause is silent on its territorial reach, which became the issue in Maqaleh. The detainees had been picked up in Pakistan and Thailand and transferred to Bagram in 2002 and 2003. A special board determined they are unlawful enemy combatants, so they sat in jail indefinitely. Looking for a way to challenge the legality of their detention in court, the detainees applied for a writ of habeas corpus in 2006. The Bush administration opposed the applications, as did the Obama administration. In Boumediene, the Supreme Court rejected the government’s argument that the United States must be the sovereign in law over a land for a court to have habeas jurisdiction within the land. Instead, it identified “at least three factors” relevant in determining jurisdiction: “(1)[T]he citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place, and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Boumediene v. Bush, supra at 2259. Applying those factors to Guantanamo, the Supreme Court held that the detainees there could invoke the protection of the Suspension Clause and obtain hearings, the stripping language of the Act notwithstanding. In the eyes of the Court of Appeals, Bagram is a very different place than the U.S. Naval Base at Guantanamo Bay, and Afghanistan is a very different country than Cuba. While the United States leased land in both countries for bases, we did not indicate “any intent to occupy [Bagram] with permanence, nor is there hostility on the part of the ‘host’ country.” The contrary is true at Guantanamo Bay. Of greater significance is the undisputed fact “that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.” Allowing the petitions to be granted would generate a host of practical obstacles, delineated by the Supreme Court in a decision at the beginning of the Cold War. “Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals.” They would divert a field commander’s “efforts and attention from the military offensive abroad to the legal defensive at home” at the whim of an enemy. Johnson v. Eisentrager, 339 U.S. 763, 779 (1950). The Court of Appeals conceded that the citizenship and the unlawful combatant status of the Bagram detainees was the same as the Guantanamo detainees. And the proceedings before the board that determined the status of the former were even less protective of the rights of detainees than the proceedings of the military tribunals at Guantanamo. Nevertheless, the Court of Appeals found the second and third factors outweighed the first and dismissed the Bagram detainees’ petitions. They cannot challenge their confinement. The decision gives the Executive a road map. If it seizes somebody whom it does not want to try in court, it should transfer him to an American prison in Afghanistan or similar war zone and declare him an enemy combatant. It should not transfer him to Guantanamo. Out of sight, out of mind — maybe for years. Not President Obama, you say, but look again: As of September 2009, Obama’s military had 645 persons detained at Bagram, three times the number at Guantanamo. The ACLU only learned the number and names of the Bagram detainees after it brought a lawsuit over the Defense Department’s denial of a Freedom of Information Act request. The Department of Defense still refuses to turn over information about the detainees’ citizenship, how long they have been held, in what country they were captured and the circumstances of their capture.  

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