You Know the Holidays Are Over When

by Deborah Pearlstein

A single, bad-weather week in January seems to bring more actual news than blog commentary about it. Among under-blogged tidbits this week:
• A federal court in Washington heard the first post-Boumediene case about whether constitutional rights extend to U.S. military-held detainees in Afghanistan;
• Senator Feinstein (no kidding) introduced a bill that would not only mandate the closure of Guantanamo, but also limit the use of certain interrogation techniques, prohibit interrogation by contractors, and require the International Committee of the Red Cross be notified of all detainees in U.S. custody (see S. 147, the Lawful Interrogation and Detention Act of 2009);
• House Judiciary Committee Chairman John Conyers proposed legislation to create a National Commission on Presidential War Powers and Civil Liberties, a blue-ribbon panel of outside experts to probe Bush administration practices of detainee treatment and warrantless wiretaps; and
• Published rumors emerge that Anne-Marie Slaughter (past president of the American Society of International Law and author of, among other works, A New World Order) may be tapped to head the State Department’s big-think Office of Policy Planning.

As it is still AALS season (and duly attuned to the time-consuming dangers of untenured blogging), I’ll just pick up on the Afghanistan case. You’ll recall that when the Supreme Court announced last summer that detainees held at Guantanamo Bay had a right to a habeas corpus review under the U.S. Constitution, giant-question-left-open #1 was whether that right extended to detainees held in what looked like more traditional circumstances of armed conflict. Did Boumediene mean for habeas to reach the 600-some detainees now held at Bagram Air Force Base in Afghanistan? Justice Kennedy’s ruling in Boumediene was nothing if not intensely functional in nature, so the parties’ briefs (and argument) devoted substantial time to discussing how the Kennedy criteria for determining when/whether the U.S. Constitution applies extraterritorially: (1) the citizenship and status of the detainees and the process for determining their status; (2) the nature of the sites of apprehension and detention; and (3) the practical obstacles to extraterritorial application of the constitutional right. As usual, the best account of the hearing can be found at Scotusblog.

Yesterday’s upshot:

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.”

For you law-of-armed-conflict fans, looks like Judge Bates was particularly interested in where the petitioners were initially captured; most claim they were no where near Afghanistan much less an Afghan battlefield when taken into custody. (Petitioner Redha al-Najar, for example, has witnesses who say he was in his home in Karachi, Pakistan when taken.) While the issue looks like it arose at the 3.5-hour hearing in discussions of Kennedy’s practical-obstacles test (it’s not like the military would have to pull witnesses off the battlefield to testify since these guys weren’t seized anywhere near a battlefield), it starts to sound an awful lot like Judge Bates (whether he knows it or not) is preemptively worrying about the merits of the core LOAC questions needing to be faced: Is there a non-international armed conflict between the United States and (say) Al Qaeda that, with adequate domestic authorization, would allow the U.S. to capture Pakistanis (or Americans for that matter) anywhere they might be found? How direct does participation in such a conflict really need to be to justify detention in such a setting (assuming the direct participation standard really matters to anything other than targeting)?

With it still unclear what position the new Obama Administration will take on such weighty matters (a question also on the judge’s mind), I wouldn’t look for that question to get settled on the merits in this forum anytime soon. In the meantime, though, we may learn a little more on the facts. After yesterday’s hearing, Judge Bates ordered the government to tell the court exactly how many detainees there are at Bagram, how many are Afghan citizens, and how many were captured elsewhere. Stay tuned.

http://opiniojuris.org/2009/01/08/you-know-the-holidays-are-over-when/

One Response

  1. Well the situation is a mess. Most of the cases are now moving towards the merits, but there is still a lot of wrangling going on over issues of discovery, consolidation, etc. Meanwhile, a number of cases have been stayed by consent, and all of the pending military commission cases have been at least conditionally stayed. Boumediene is on appeal to the CAD.

    While we can’t know for sure what the changes will be, it’s a safe bet that the Obama administration will flush most of the government’s existing brief right down the toilet where it belongs. But I have to agree that they will probably proceed cautiously, simply because the Bush gang has made such a convoluted hash of everything (mostly by intent).

    The immediate priorities should be to replace all the civil division attorneys on the cases with honest lawyers, and to ameliorate conditions at Guantanamo and DDC regarding attorney access, treatment of the detainees, the endless games, BS, and red tape re scheduling and procedures, access to medical records, etc, etc, etc. Basically the new administration needs to serously clean house at both JTF-GTMO and DOJ Civil Division — both are criminal organizations.

    I think most of the cases will ultimately just be settled by mutual agreement. It would be absolutely foolish to waste any time on trying to salvage the Bush administrations policies — they should simply be denounced as what they are: crimes.

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