US: No Habeas Rights at Bagram

The Obama Administration told a federal judge on Friday afternoon that some 600 detainees being held by the U.S. military at Bargram airbase in Afghanistan have no right to go to U.S. courts to challenge their confinement.  In a one-paragraph reply to District Judge John D. Bates, the Justice Department said: “Having considered the matter, the Government adheres to its previously articulated position.”  The reply can be found here.Because of the brevity of Friday’s government filing, it is uncertain whether the Obama Administration is leaving itself the option of reconsidering, later on, the detention policy for Bagram.  The Administration is increasing its military buildup in Afghanistan, and that presumably will lead to a rise in the number of prisoners captured and then confined at Bagram.

Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided “to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything” about the detention policies it inherited because it had too many other problems to deal with.

“It may take some time before we see exactly what is going on — whether this is just a transitory policy or whether this is really their policy: ‘No to Guantánamo, but we can just create Guantánamo in some other place,’ ” Mr. Balkin said.

Julian Ku at Opinio Juris concludes rightly:

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.

More at Scotus and the Christian Science Monitor.