29 Jun Where Else Does the Great Writ Extend? Afghanistan???
29.06.08
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4 Comments
As this WaPo article points out, the U.S. military base in Bagram, Afghanistan is likely to be the next source of litigation from detainees seeking to challenge their detention in U.S. courts. Of course, Boumediene doesn’t make it clear that the writ extends to Guantanamo, but it does not rule out extending the Writ there either. That is part of the problem with the decision. It is pretty much impossible to predict how Justice Kennedy will rule on this? Will President Obama or McCain have to close Bagram as well as Guantanamo? I think the answer is “probably.”
Munaf makes it clear that the Writ extends to Camp Cropper in the Green Zone of Iraq, which is almost as far away and just as much a war zone as Bagram. If a US citizen were being held at Bagram without any pending charges in the Afghan courts, then Habeas would clearly be available. However, constitutional rights do not extend to aliens held overseas at Guantanamo, Cropper, or Bagram, so the question of whether their detention is legal or not depends on statutes, treaties, and common law rather than constitutional rights. For example, the Hamdan decision indicates that at least Geneva Common Article 3 applies and has some force. Of course, Karzai can assert Afghan government authority over the prisoners and then Muanf cuts off Habeas. There is also the remaining Eisentrager decision, that Boumediene bypassed but did not overturn: 1. A nonresident enemy alien has no access to our courts in wartime. Pp. 768-777. (a) Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and nonresident enemy aliens who at all… Read more »
Get ready, get set, go. The floodgates are open. With the recent decision re: MNF-I vs. US control, let’s see what comes out of Iraq.
The answer is quite clear: habeas goes wherever the law does, and no one in the United States government has any authority under the Constituion to act outside the law.
We’ll soon see our allies holding prisoners of interest to avoid habeas corpus appeals.