Is There Tea at Bagram?

by Kevin Jon Heller

Still more disappointment from Bush 44:

The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.

In a court filing, the Justice Department also asked District Judge John D. Bates not to proceed with the habeas-corpus cases of three detainees at Bagram Air Base outside Kabul, Afghanistan. Judge Bates ruled last week that the three — each of whom says he was seized outside of Afghanistan — could challenge their detention in court.

For some reason, Glenn Greenwald seems to think the appeal is inconsistent with candidate Obama’s position on habeas:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.

It’s patently obvious that there is no contradiction here.  Obama was criticizing creating a legal black hole at Guantanamo; he said nothing about not creating one at Bagram

PS: Lest anyone be confused, I am not actually criticizing Glenn.  I think the Obama administration’s stance on Bagram is deplorable.

10 Responses

  1. Response… I am not actually criticizing Glenn.

    You should be, for his gullibility if nothing else.

  2. Bill-o,

    It’s impossible to take your comment seriously in the absence of, you know, an actual argument.  Or do you prefer insulting people to debating them?

  3. Professor Heller,

    You made a lot of your critique of America’s response to 9/11 as a Bush-based theme.  The Bush administration did this, if only these criminals were out etc., etc.

    So, my question is, with Obama repeating a lot of Bush’s policies, could it be that a superpower, fighting a conflict against a transnational entity, simply has to engage in certain behaviors that you can’t tolerate.

    It seems to me that Obama’s support of many Bush-era policies is a pretty damning counter to your arguments …  It seems like nobody thinks that people caught and kept outside the United States should get habeas rights.  Of course, those people have about 200 years of case law on their side …

  4. NSD,

    Bush’s misguided actions didn’t make us safer; they made us less safe.  There is no reason to believe that Obama will be any more successful by following in Bush’s footsteps.

    As for your second argument, I guess you’re pretending that Boumediene doesn’t exist.  (Cuba, of course, is not in the United States.)  People were making the same argument before it was decided, and we saw — happily — how that turned out.  I don’t know whether the Supreme Court will apply Boumediene to Bagram, but it certainly should, at least concerning Bagram detainees who were captured far away from the battlefield.

  5. Two completely different administrations, both with access to a significantly greater amount of information, disagree with you.
    BTW, what is the empirical basis for your claim that we are less safe because of Bush’s policies.  Last time I checked, there were no attacks on US soil post 9/11

  6. Kevin –

    While all this is quite disturbing, my (perhaps overly optimistic) take on Obama’s detainee policy is that he has decided to resist any final rulings from the courts until his policy review is completed.  Remember he issued several executive orders just after taking office that called for reviews to be completed within 180 days. 

    So I can imagine he and Holder deciding that whatever policy is recommended and adopted will be harder to implement if any clear judicial markers have been set down.  Adopting a new litigation strategy could be seen as pre-judging the outcome of the policy review.  It would be very difficult to explain why the Administration took one position in a federal court but endorsed another in proposed legislation or an Executive order.   You may respond that it’s clear now what positions he should take and those positions involve repudiating all aspects of Bush policy.  I probably agree with that, but my point is not that Obama agrees or disagrees on the merits but that he wants to keep all options open pending the Group’s report.  

    I don’t think this is an unreasonable position.  Consider the political mileaage he will get from saying he is listenign to a group of experts.   Hopefully, in six months or so we’ll see these series of filings as an unpleasant but ultimately temporary strategy.

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  3. […] law professor Kevin Jon Heller of Opinio Juris said that ”the Obama administration’s stance on Bagram is deplorable” and that Obama was […]

  4. […] law professor Kevin Jon Heller of Opinio Juris said that ”the Obama administration’s stance on Bagram is deplorable” and that Obama was […]