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Analysis: Some overseas extension of habeas?

UPDATE 6:40 p.m.  After Wednesday’s hearing, Judge John D. Bates ordered the government to supply, by Jan. 16, information on how many detainees are at Bagram Air Base, how many were captured elsewhere, and how many are Afghan citizens — the last two points apparently bearing on issues the judge had raised at the hearing.



Voicing some concern over the government creating a “black hole” for detainees in a “law-free zone” at an overseas military base, a federal judge hinted on Wednesday that he may allow some of the prisoners the U.S. holds in Afghanistan to file court cases to test their captivity. 

U.S. District Judge John D. Bates strongly implied that he thought some individual cases could go forward without disrupting U.S. military operations at an airfield in Bagram, Afghanistan. He did so in the face of repeated arguments by a Justice Department lawyer that any access to the courts for even a single detainee at Bagram would necessarily extend to all detainees held by the U.S.  anywhere around the globe.  Deputy Assistant Attorney General John C. O’Quinn said that “if habeas applies to Bagram, it runs to the four corners of the world.”

Bates, though, did indicate that he would approach cautiously the issue of granting habeas rights for anyone now at a U.S. military prison at Bagram.  Holding a hearing on whether the right to bring a habeas challenge, recognized by the Supreme Court last June in Boumediene v. Bush, extends to Bagram, the judge seemed to grow impatient with a lawyer for detainees who asked for a sweeping expansion of habeas rights. 

“You seem to be reserving the position that anywhere [detainees] are held, they would have habeas privileges,” the judge commented to Stanford law professor Barbara J. Olshansky  She told Bates that, while she was seeking habeas rights only for the four prisoners involved in the cases now before him, “there can’t be any place in the world where we can keep people without any due process.”

The judge, however, said: “I don’t think the Supreme Court in Boumediene was intimating that anywhere detainees are held, they have habeas rights.  That was not the kind of analysis it made.” The case, he said, was decided on very specific grounds, and left much to be decided by lower courts later. Any ruling that extended habeas everywhere, Bates added, “would write off the books” the six-factor test the Supreme Court laid down last June for determining the scope of habeas.

At other points in the hearing, though, Judge Bates seemed to be saying that Boumediene should not be read as a Guantanamo-only ruling.  “I have to listen to the Supreme Court,” he said.  “What is to stop the Executive from creating a kind of law-free zone? The Supreme Court expressed concern about that in Boumediene.  If the Supreme Court was concerned about that for Guantanamo, shouldn’t I also have that concern about Bagram?”

He asked O’Quinn: “What checks the action of the United States regarding these detainees?  This gets back to the concern about a law-free zone, about a black hole.  What checks it?”  The Justice Department lawyer responded that Congress had put limits on how detainees could be treated in a 2005 law, the Detainee Treatment Act.

“Well,” Bates responded, “is that enforceable by the court?”  O’Quinn said a private party could not seek court enforcement; only the Justice Department could act.  “I don’t understand what the real check is,” Bates then said.

The judge is the first one among 14 federal judges in District Courts in Washington to consider whether Boumediene’s mandate for habeas challenges extends anywhere other than Guantanamo. He has before him four cases, two involving Yemenis, one an Afghan and one a Tunisian.  Each of them has been held by the U.S. military for more than six years at Bagram.

As Wednesday’s three-and-a-half-hour hearing progressed, with the judge frequently speaking out on the way he was thinking about the cases, he seemed to indicate that he could find decisive the issue of where an individual was captured, before being imprisoned at Bagram.

Three, and maybe all four, of the detainees in the pending cases, he noted, were captured somewhere else, “nowhere near the battlefield” in Afghanistan.  If the idea of holding them indefinitely at Bagram is to keep them from returning to the battlefield, Bates said he doubted that any of them would be likely to do so, given where they were initially seized.

While the judge said he was “concerned about the practical obstacles” of enforcing habeas rights when the detainees are being held in a zone of “active hostilities,” he said those obstacles might be lessened if habeas rights were examined on a case-by-case basis, especially for detainees not taken prisoner in Afghanistan as part of hostilities there.

There are now more than 600 detainees in the U.S. military prison at the Bagram airfield.  The judge said the number might not be that high, if having habeas rights turned on the difference between being captured somewhere else and being taken prisoner “in a theater of war.”

Olshansky disagreed with Bates on that point of difference, saying that even if a prisoner were actually arrested inside Afghanistan might not mean that they were an “enemy combatant” who should remain detained.  She said that the military could easily accommodate habeas proceedings, including giving detainees access to lawyers. Bates countered that “in a theater of war, it isn’t all that easy.”

The judge told O’Quinn that the complications of habeas for the military in Afghanistan might not be as much of a burden, especially for detainees initially captured elsewhere, because “those with factual knowledge” that would be needed in resolving the case might be elsewhere, a long way away from the war zone. In such cases, Bates said, “there may be no reason to think there would be any interference with our operation.”

O’Quinn said, however, that the government’s experience with the habeas cases that have gone forward in federal court since Boumediene suggests that judges will go so far as to “superintend” much of what the military does at detention facilities.  Bates countered that “you are talking about my colleagues, and what they have done; I am not sure that is going to sway my determination.”

Two Yale law students, Amanda Shanor and Leah Belsky, took part in the argument, taking the podium briefly to make points about the scope of habeas rights.  Their main point was that the judge could make a narrow ruling, perhaps confining it to statutory habeas rights, and thus avoiding having to address constitutional questions.  The judge praised them for their appearance.

As the hearing neared a close, with O’Quinn making a brief rebuttal, Judge Bates wondered whether the cases would be impacted by the beginning of President-elect Obama’s administration.  “Should I have any concern that there will be a new regime responding to these issues in 13 days?” he asked Quinn, noting that “from the top” — meaning Barack Obama himself — there had come word that Guantanamo would be closed  “Is there a possibility of a refined perception regarding these issues?” the judge asked.

O’Quinn said he could only speak for the U.S. government on this day, and its position was that habeas does not extend to prisoners held at Bagram airfield. “I can’t get into the head of the transition team,” the Justice Department lawyer said. He said that, as far as military operations were concerned, “I would be surprised if the incoming administration would take the position that Bagram is to be superintended by the courts.”

Bates said he would work to reach a decision “in what I hope is a reasonable time period.”