Obama Administration Will Oppose Extending Judicial Review to Afghanistan

by Julian Ku

Again, this news is not exactly shocking:

The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.

Jack Balkin, who is quoted in the article, notes that it is too soon to tell what the full position of the administration will be on these questions.  And I agree that it would be odd for the U.S. to give up its argument now. It can always backtrack later, but if it waives its argument now, it is going to be very tricky to “take back” the judicial review genie.

Still, we can at least see the outlines of a mini-trend:  Announce the closure of Gitmo, but quietly maintain a system of renditions and overseas facilities like Bagram to hold people who you really don’t want to release or whom you really need to interrogate. 

The Administration might be thinking that, as long as it introduces “humane” standards for confinement in Bagram, and makes sure renditions are to places where there isn’t torture, and comes up with a better administrative system for sorting out who should be detained, the existence of judicial review won’t matter much. 

This sounds like a good argument!  But it is the same one that the Bush Administration made over Gitmo for the past seven years.  I suppose Obama may get a pass on this, but he doesn’t deserve one.


3 Responses

  1. To be fair, people like Neal Katyal did argue that Guantanamo was sui generis. It’s an arbitrary line drawn though, since Bagram is as much of a legal blackhole as Guantanamo was. Thanks to that idiot Kennedy, we’ll now have judges parsing the judge-determined meaning of ‘practical/de facto sovereignty’ and whether it obtains in U.S. facilities abroad. I hope he realizes just how incoherent his follow-the-flag jurisprudence is as it sits in tension with Eisentrager (feebly distinguished) and Verdugo-Urquidez.

  2. With respect, that does not ‘sound like a good argument.’ The argument is basically, ‘the government will get it right, no need for judicial review.’ That’s not how the rule of law works.

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