Habeas Corpus...Not for all of US.

Sunday, April 12, 2009

Though I don't share Mike's complete disappointment with the Obama Administration, I am disgusted at the way he has handled some things. I was very hopeful that he would take a solid stance in regards to civil liberties and Constitutional rights. I was happy that he issued an order that paved the way for the closing of the detention facility at Guantanamo.

At that time, I had a cynical fear in the back of my mind that the Administration would just continue the same practices, just in other places, and that the closure was just good PR. It appears that this is at least partially true. I may not agree completely with Talk Left, but they do a great job covering civil liberty issues. They have been covering a case for the past few months where detainees being held in Bagram Air Base, Afghanistan, have challenged their status as enemy combatants by filing habeas petitions. The Obama Justice Department stated the same position as the Bush Justice Department and said that they have no right to do this. As many of you probably know, the US Supreme Court held that Guantanamo detainees should be allowed to challenge their unlawful combatant status. It doesn't take a huge stretch to apply this to the Bagram detainees.

The Obama Justice Department took the position that the situation was different and that they were being held in a war zone. While POW's captured as part of an ongoing war are not entitled to a hearing to challenge their captivity, some of the Bagram detainees are claiming that they were not captured in a war zone and were taken elsewhere and transported to the prison site, much as the detainees in Guantanamo. If this is the case, then they are entitled to some level of due process, certainly more than they are getting now. From the Talk Left entry:

The Bagram panels, called Enemy Combatant Review Boards, offer no such guarantees. Reviews are conducted after 90 days and at least annually thereafter, but detainees are not informed of the accusations against them, have no advocate and cannot appear before the board, officials said. "The detainee is not involved at all," one official familiar with the process said.


Fortunately, on April 2nd, a federal judge ruled that the detainees can challenge their confinement in US Court. Here is a link to the decision. Unfortunately, the Obama Administration is appealing this decision and insisting that this Bush policy should continue. From the NYT:

Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.

“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.


I tend to agree with Ms. Foster. I never thought that holding people indefinitely as unlawful combatants was good policy or Constitutional. It was one of many bad Bush policies that I was hopeful that Obama would change and I am disappointed that he feels it is necessary to continue.

11 comments:

Bob 7:42 PM  

"... some of the Bagram detainees are claiming that they were not captured in a war zone and were taken elsewhere and transported to the prison site, much as the detainees in Guantanamo. If this is the case, then they are entitled to some level of due process, certainly more than they are getting now."

If they were all detained as part of combat in Afghanistan, then they would simply be considered POW’s correct? Has any court taken a look at whether or not any of those challenging their status were indeed transported to the prison site?

Am I correct that this is the central question to whether or not they have a right to a hearing?

Finally, would there be harm either now or in the future in allowing a POW a hearing to determine if they were indeed a POW or if they were transported from elsewhere?

steves 8:36 PM  

Am I correct that this is the central question to whether or not they have a right to a hearing?

This is exactly correct and would be the grounds for filing the habeas petition. The problem had been (and appears to still be the case) that everyone snatched under the GWOT (global war on terror) would be detained as an unlawful combatant and the gov't wouldn't have to worry about things like due process.

steves 8:47 PM  

Here is a link to a site that lists some other bloggers and columnists commenting on this topic.

Mike 5:04 AM  

Change we can believe in.

Smitty 8:14 AM  

I had no idea Strike 3 would come about 100 days into the Presidency. Treasury shenanigans, wiretapping, and now this. Awesome.

Smitty 2:33 PM  

Has any court taken a look at whether or not any of those challenging their status were indeed transported to the prison site?

This is why I am so pissed about this. In order to get a court to look into this, you have to be able to have a forum where you get to say "no, bullshit, I was shipped here after getting picked up in Belgium." But these guys don't have that forum. So nobody will look into their case because nobody can ask.

At least as I understand it.

Bob 4:53 PM  

"This is why I am so pissed about this. In order to get a court to look into this, you have to be able to have a forum where you get to say "no, bullshit, I was shipped here after getting picked up in Belgium." But these guys don't have that forum. So nobody will look into their case because nobody can ask.

At least as I understand it."


So as I understand it, the "POWs" may be intermixed with these other detainees, so we now are in a position to give POW's a hearing to weed out the other?

I am guessing that POW's have never been given a hearing in the history of war. I can see an administration being concerned that we are setting a precedent in giving POWs access to the courts. Even if we separated the so-called POW’s from the other detainees, who’s to say we separated them correctly since we never gave anyone a hearing? I think this means we will always have to give POWs a hearing, which is not necessarily a great idea.

I assume that all are currently subject to the Geneva Convention?

steves 7:42 PM  

Ok, the only thing I know about international law and the like is from watching NCIS. Just kidding, but most of what I know about habeas cases is confined to how it interacts with state law.

Habeas corpus is a means to challenge the lawfulness of an arrest and detainment. A person captured in war that engaging in some kind of hostile action towards us or an ally would, under international law and custom, be presumed to be lawfully detained. It gets more fuzzy when the war is a nebulous war on terror that encompasses a variety of actors from hundreds of different countries. In some cases, these actors are detained based on iffy information or turned over to us by some other party.

In 2001, Bush (as part of his ongoing war on the Constitution), enacted the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism. Among other things, it allowed the US to detain non-citizens suspected of terrorism as enemy combatants. They could be detained for any length of time. They do not have to be informed of the charges, nor does any kind of counsel need to be provided.

Several cases have ruled this order unConstitutional (Hamdi v. Rumsfeld and Boumediene v. Bush). Despite what morons like Limbaugh, Beck and Hannity say, I have never heard anyone saying that any POW or detainee is entitled to a full trial. What they are entitled to, IMO, is for people that are not captured on the field of battle or in uniform is some kind of due process that would allow them to present evidence that that they are not enemy combatants. The case law has said essentially the same thing and so far, the gov't has been unable or unwilling to go along with this order and is content to just shuffle these detainees around the world to avoid any kind of justice or fairness.

I assume that all are currently subject to the Geneva Convention?I am not sure. The Bush administration argued that unlawful combatants were not covered by the 3rd Geneva Convention. I am not aware of what the Obama administration is arguing.

Bob 7:48 AM  

"What they are entitled to, IMO, is for people that are not captured on the field of battle or in uniform is some kind of due process that would allow them to present evidence that that they are not enemy combatants."

The question I have, is who makes the determineation if a person was indeed camptured in uniform on a field of battle? You could have a bunch of POW's and some of them complian they weren't actually POWs and are deserving of access to the courts. In the end we are in a position where we are forced to trust the military determination fo what was a POW and what is a detainee.

Seems like a really screwed up situtation no matter how you look at it.

Bob 7:49 AM  

Wow. I cannot type or spell.

steves 11:04 AM  

I don't know enough about international law and POW's to say what would work. I understand it is a difficult situation, but if we are going to be involved in an ongoing, international war on terror, then we have to come up with something more than just holding people for as long as we want.

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