Analysis

For almost all of the time it has been in office,  the Obama Administration has held to the position that the Supreme Court’s ruling in 2008 giving some terrorism suspects a right to challenge their detention by the U.S. military does not apply, in any way, to prisoners being detained at Bagram air base in Afghanistan — a prison population now said to number more than 600.

On Monday, the Administration is expected to spell out its views anew, amid hints that it may be willing to let the Bagram detainees have some rights — though considerably fewer rights than detainees at Guantanamo Bay in Cuba have under the Supreme Court’s decision 15 months ago in Boumediene v. Bush.

From what has appeared over this past weekend in a series of leaks to selected news organizations, seemingly originating mainly at the Pentagon, it seems that the Administration is going to try to shore up its case against court-ordered declaration of rights at Bagram by saying it is going to make some procedural reforms there on its own.

Monday is the deadline for the Administration to file its appeal brief in the D.C. Circuit Court in the combined cases of three Bagram prisoners who, a federal judge ruled last April, have rights to pursue habeas challenges under Boumediene. The judge, however, has put that ruling on hold pending the Administration’s appeal to the Circuit Court.  The new position on Bagram could be spelled out in that filing.

In the leaked reports, published Sunday morning in major newspapers, government officials were quoted as saying they were now prepared to allow some prisoner testing of confinement at the Bagram facility.  But the descriptions given of the contemplated changes indicated that they would not be the equivalent of habeas rights — particularly, because Bagram detainees would not have the aid of any lawyers, and because the legality of their confinement would not be determined by a regular court.   Human rights groups, apparently given some advance notice of what was in the works, indicated that they would be disappointed.

U.S. District Judge John D. Bates ruled five months ago that, while an Afghan captured in that country and held at Bagram has no habeas rights in U.S. courts, three non-Afghans apparently taken prisoner elsewhere and then sent to Bagram do have those rights.  The Administration’s appeal of that ruling as it applied to the three non-Afghans is pending in the consolidated cases of Al Maqaleh, et al., v. Gates, et al.,  (Circuit docket 09-5265).  Briefing begins Monday with the U.S. filing.  The three detainees’ brief is due Oct. 30, with a government reply due Nov. 16.  (Another prisoner at Bagram, Haji Wazir, denied a right to pursue habeas because he is an Afghan, has recently appealed that part of Judge Bates’ decision to the Circuit Court (Wazir v. Gates, et al., Circuit docket 09-5303.)

The new press reports about the government’s plans for Bagram gave no indication that the Administration is prepared to concede any role for the U.S. courts for the prisoners there.  In fact, such details as were provided suggested that any detention review system would be kept within the military alone, with Pentagon officials spelling out whatever procedural rights they were willing to concede to the detainees.

Several of the news reports included variations of the same quotation from an unidentified government official – that is, that the changes were being made to “do the right thing — only holding those we have to.”  Thus, the Administration seemed to have opted to leak the information in order to be able to give the impending move a positive cast before all the details were known publicly.

Here is the way one of the news accounts described the leaked information: “Each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is ‘reasonably available’…The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released. For those held longer, the process will be repeated at six-month intervals.”  (From a Washington Post story, linked here.  The substance of other news accounts was sufficiently similar as to indicate a controlled release of information prior to any formal public declaration.)

The features  that were identified in the news accounts appear to have some similarities to two other approaches to detention review that the government has tried — the Combatant Status Review Tribunals, held entirely within the U.S. military, and the Detainee Treatment Act procedures involving D.C. Circuit review of the CSRT decisions.  Both of those types of proceedings were found inadequate by the Supreme Court in the Boumediene decision, when it declared a constitutional right of habeas.  Neither of those types of proceedings remaiins in operation.

The Supreme Court decision involved only Guantanamo detainees. But Judge Bates ruled in the Bagram cases that the principles the Supreme Court laid down in that decision had application to at least some imprisoned at the Afghanistan facility.

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