Analysis

The Pentagon’s new policy to control who will be detained as a terrorism suspect at the U.S. military prison at Bagram, Afghanistan, is based on a concept of the enemy that has not withstood legal tests in federal habeas courts in the wake of the Supreme Court’s constitutional habeas ruling in Boumediene v. Bush last year.  But that is no surprise at all: this is strictly a within-the-military policy, court papers filed Monday made clear. The Pentagon documents that spell out the new policy can be downloaded here.

The policy is simply not designed for the civilian court process for habeas cases and, in fact, it is not meant to be reviewed by any civilian court.  The military chain-of-command is its overseer.  In a court filing, Obama Administration officials indicated that they will resist any effort at judicial oversight — what it calls “second-guessing” — of decisions made about Bagram detention.

Disclosed to members of Congress in mid-July (but just now released publicly), it is a policy for holding what the Pentagon calls the “unprivileged enemy belligerent” who has been captured on a battlefield — but not necessarily in Afghanistan — and will go at least initially to the prison at Bagram Air Field outside Kabul.

The new definition for such a belligerent, it turns out, is the same definition as the one the Obama Administration has put forth in civilian habeas cases involving Guantanamo Bay detainees — a definition that has been found too sweeping by at least four federal habeas judges.

Detainees at Bagram get more procedural rights than they have had up to now, but those were kept limited precisely because Pentagon officials have found the procedural rights that detainees get in habeas courts to be too burdensome.  Administratioon lawyers, referring to what has been occurring in habeas cases for Guantanamo prisoners, described those cases as involving  “intrusive factual development, onerous discovery, and logistical burdens.”

The policy intentionally provides no role for outside lawyers.  Comments in the court filing about the role lawyers have played in the Guantanamo cases show some of the reasons the Pentagon does not want lawyers involved with Bagram prisoners.  “In 2008,” a footnote in the court brief said, “the military was required to facilitate more than 1,850 visits between counsel and their detainee clients at Guantanamo.”  Another footnote says that, since 2007, “a single detainee there has had nearly 20 counsel visits.”

At Bagram, each detainee, when his detention status is reviewed, gets a military officer as his “personal representative,” who is required to “act in the best interests of the detainee.”   The officer is guaranteed against harm to his or her career if actions to aid the detainee are carried out in “good faith.”   The representative is to help the detainee gather information favorable to him, and even to summon witnesses.  But military officers involved in the review process decide whether such information or witnesses are “reasonably available” — a term that is not defined.  (In the ongoing habeas cases, government lawyers have sought to have the judges define that phrase quite narrowly.)

The basic components of the new detention policy follow the steps the military has used for decades in deciding which battlefield captives must be held in custody because they represent a continuing threat — that is, the procedures outlined in Army Regulation 190-8.

But the Obama Administration has added to those procedures new steps that were designed, Pentagon officials said, to “enhance the detainee’s ability to challenge his or her detention.”  Those include the help of the “personal representative,” access to interpreters, mostly open proceedings before a three-officer review board, a right to sit in on all open sessions, a right to take the stand and testify (without being compelled to do so), to call witnesses, to question government witnesses, and present documents.

The evidence the government puts before the review board will not be presumed to be valid, and thus is subject to some challenge.   After an initial detention, based on a decision made by a review board within 60 days after the individual arrives at Bagram, the review boards come back into being every six months for each detainee at Bagram.

The review board, with a majority controlling its votes, can recommend these options: continued detention at Bagram, transfer to Afghan officials for criminal prosecution, transfer to Afghan officials for rehabilitation, unconditional release, or transfer to a third country for prosecution if the detainee is not an Afghan.

The policy does not show any higher-level review of the recommendations of the review board, but once such a board suggests that the individual be detained further, that is reviewed by a legal officer — for “legal sufficiency” only. It is unclear whether that means a review of whether the evidence justified the board’s recommendation, or only that the board followed the proper procedures.

Nothing in the Pentagon documents appears to require that any member of the review board be an attorney, or that the personal representative have any legal training or skills, as the deal with evidence that sometimes has significant legal complications.  The review boards are to have a military lawyer, to provide advice on “legal and procedural matters.” It is not clear how wide-ranging that lawyer’s participation would be, however.

The documents on the new procedures provide no apparent guidance on the nature of the evidence that is to be weighed in making the “threat assessments” that would be the basis for deciding to hold a detainee further at Bagram.

It is also unclear what kinds of evidence will be shared with the detainee’s “personal representative” nor does it spell out how much access that officer would have to classified material.  Detainees will not be allowed to see classified information.

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