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4 Responses

1. 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 times have remained with, and adhered to, enemy governments. P. 769.
   

   Boumediene did not overturn Eisentrager because, as Kennedy carefully pointed out, Eisentrager did not say what it was commonly believed to say. It was not a statement about how far the Writ extended, but rather an observation that the detention of enemy combatants and enemy civilians is so common in wartime that such detention is self evidently lawful under statute, treaty, and common law, and since no constitutional rights apply, there is nothing for the court to consider.

   Eisentrager did not define “enemy alien” as a “citizen of a foreign country at war with the US” which would raise some ambiguity about who is or isn’t an enemy citizen in today’s Afghanistan where both Karzai and the Taliban struggle for control. Rather, it distinguishes “aliens of friendly and enemy allegiance.” Afghans, and even non-Afghan aliens who have “remained with, and adhered to, enemy governments” have no access to our courts.

   This means that there is a larger category than just admitted enemy combatants who are excluded from Habeas. It also includes civilians who remain with or support the enemy combatants. It turns out we have an almost perfect case (though at Guantanamo, not Bagram) and it was in court this week. Hamdan claimed to be a civilian in the employ of Bin Laden. The Commission ruled he had become an unlawful enemy combatant by carrying anti-aircraft missiles to a battle. However, even before this act, he was an alien who rendered support and allegiance to the enemy. His own admission and arguments in court render him, under the Eisentrager formula, ineligible for access to Habeas. Which is interesting because his lawyers argued this week before the Commission that Boumediene gave him access to Habeas and therefore his trial should be postponed.

   Even with all these restrictions, there may be some cases in Bagram that would be eligible for Habeas, at least until Karzai cuts that option off.

   6.29.2008
   at 9:56 am EST HowardGilbert

2. 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.

   6.29.2008
   at 11:59 am EST Patricia Wildermuth

3. 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.

   6.29.2008
   at 4:12 pm EST Charles Gittings

4. We’ll soon see our allies holding prisoners of interest to avoid habeas corpus appeals.

   6.30.2008
   at 1:55 pm EST Matthew Gross

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