Obama asked for views on Bagram detainees
on Jan 23, 2009 at 10:22 am
President Obama’s changed policy on military detention at Guantanamo Bay, Cuba, announced Thursday, made no mention of the more than 600 prisoners the U.S. military now holds at another overseas prison — Bagram air base outside Kabul, Afghanistan. A White House official told reporters, at a briefing, not to expect any changes to existing policies in Afghanistan for at least six months.
There may have to be an answer earlier, though. Later in the day Thursday, a federal judge in Washington issued an order asking the new Administration to indicate whether it will continue to follow the Bush Administration view that Bagram detainees have no right to go to court to challenge their ongoing captivity.
U.S. District Judge John D. Bates, who on Thursday also had asked the Obama Administration for its definition of “enemy combatant” — the designation used to justify confining terrorism suspects (see the post just below), noted that he was considering what to do about Bagram detainees.
 He has before him four cases, two involving Yemenis, one an Afghan and one a Tunisian, claiming a right to pursue habeas challenges in a U.S. court — an issue that has never been tested before the Supreme Court. (The Justices’ June decision in Boumediene v. Bush only involved a constitutional habeas right as applied to Guantanamo captives.)
Bates took note of the new President’s Executive Order on Guatanamo, saying the Order indicated “significant changes in the government’s approach to the detention, and review of detention, of indiviudals currently held at Guantanamo Bay. A different approach could impact the Court’s analysis of certain issues central to the resolution of these [Bagram] cases as well.”
“The Court,” the judge said, “will provide the new administration with the….opportunity [to provide input] in these Bagram Airfield habeas cases.”
His order went on to invite the government “to inform the Court, in writing and by not later than February 20, 2009, whether they intend to refine their position in the above-captioned cases filed by detainees held at Bagram Airfield. Based on that submission, the Court will decide whether further briefing or some other course is appropriate.” (The lead case among the four in Makaleh v. Gates, District docket 06-1669; in court papers, the name is sometimes spelled Makalah.)
During a hearing Jan.7 on the Bagram cases, Judge Bates had questioned whether the government might be changing its position as a result of Barack Obama’s election. “Should I have any concern that there will be a new regime responding to these issues in 13 days?” the judge asked.
The government lawyer, Deputy Assitant Attorney General John C. O’Quinn, replied that he could only speak for the government in office that day, but added: “I would be surprised if the incoming administration would take the position that Bagram is to be superintended by the courts.”
After the Obama Executive Order on Guantanmo, the judge obviously decided to pursue a direct answer.
Although the judge had asked for, and received, a report on the exact number of detainees now at the Bagram prison, the government’s response on Jan. 16 was heavily redacted so the number is still not publicly known.
