Habeas after Boumediene and torture at Bagram

A federal court in Washington heard the first post-Boumediene case about whether constitutional rights extend to U.S. military-held detainees in Afghanistan.The judge is the first one among 14 federal judges in District Courts in Washington to consider whether Boumediene’s mandate for habeas challenges extends anywhere other than Guantanamo. He has before him four cases, two involving Yemenis, one an Afghan and one a Tunisian. Each of them has been held by the U.S. military for more than six years at Bagram.

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.

It remains unclear whether the Judge will interpret Boumediene as a Guantanamo-only ruling or whether he thinks Boumediene implies that anywhere the US holds detainees they have habeas rights. (Remember Justice Kennedy writing that “if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impracticable or anomalous’ would have more weight.”

Judge Bates also wondered whether the cases would be impacted by the beginning of President-elect Obama’s administration. “Should I have any concern that there will be a new regime responding to these issues in 13 days?” he asked

Judge Bates ordered the government to tell the court exactly by January 16th how many detainees there are at Bagram, how many are Afghan citizens, and how many were captured elsewhere. Stay tuned.

Washington Post comment:

In a conventional war, where hostilities are formally declared and suspended and combatants are easily identified by the uniforms of their countries, federal judges have rightly been loath to interfere with the battlefield decisions of the executive. But the indefinite nature of the war against terrorism and the ease with which combatants can blend in with civilian populations means that the executive requires more flexibility in fighting the enemy and more checks and balances to ensure that innocents are not wrongly swept up. After all, it is also in the nation’s interest to make sure that it detains only those who would do it harm.

Even if the administration is correct to challengefederal court oversight — and that is a big if, given that the Supreme Court has blessed judicial review of Guantanamo detentions — it has no justification to deny Mr. Wazir and the other detainees the opportunity to meaningfully challenge his detention through internationally recognized legal avenues and through a more robust process than exists at Bagram. By refusing even these basic accommodations, the Bush administration once again is embracing a hard line that is neither warranted nor productive. And it is all but inviting the kind of judicial intervention that it has long sought to avoid and that could leave the next administration less able to adapt to the new war footing.

This regrettable situation could and should be made moot by President-elect Barack Obama.
Upon taking office, Mr. Obama should order that Mr. Wazir and the others at Bagram be afforded their rights under the Geneva Conventions and be given a meaningful chance to challenge their detentions. After six years, Mr. Wazir and the others are entitled to no less.

(For the students out there: Two Yale law students, Amanda Shanor and Leah Belsky, took part in the argument, taking the podium briefly to make points about the scope of habeas rights. Their main point was that the judge could make a narrow ruling, perhaps confining it to statutory habeas rights, and thus avoiding having to address constitutional questions. The judge praised them for their appearance.)

Human rights groups and activists have become increasingly concerned about the U.S. military prison at Bagram, about 40 miles north of Kabul. “They stopped sending people to Guantanamo and are sending them to Bagram instead,” said Barbara J. Olshansky, who represents Ahmad and is the legal director of the International Justice Network, a nonprofit organization that provides legal support to detainees. The prison has grown steadily over the years and has about 600 detainees, military officials said. The military is planning to spend $60 million to build a new, larger facility that would house the same number of captives but could accommodate as many as 1,000. More here, here, here and here.

According to Damien Corsetti, a former U.S. military intelligence investigator in Bagram who was recently interviewed at CBC, “98%” of those who were imprisoned in Bagram had nothing to do with the Taliban or al-Qaeda. Furthermore he state that he did witness torture by other troops and by CIA operatives at Bagram and according to Corsetti, “he could get a person to admit that “he was Osama bin Laden.” Currently, he is receiving financial compensation for post-traumatic stress disorder due to the abuse that he saw and that he inflicted.

On January 13, in a declaration submitted to a Washington D.C. District Court in the case of Guantánamo prisoner Mohamed Jawad, Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commission trial system, stated he “stumbled across” a summary of an interview with Jawad, conducted by an agent from the Army Criminal Investigation Division, “which had been added to the record of trial in a case where a guard at Bagram prison had been charged with the murder of a detainee.” From this interview, Vandeveld learned that Jawad “had experienced extensive abuse” while held at Bagram from December 2002 (when two prisoners died at the hands of US forces) to February 2003, which included being “shoved down a stairwell while both hooded and shackled.” The agent, who testified at a hearing in Jawad’s case last August, explained that Jawad’s  statement “was completely consistent with the statements of other prisoners held at Bagram at the time, and, more importantly, that dozens of the guards had admitted to abusing the prisoners in exactly the way described by Jawad.”

A recent interview with released Guantanamo Bay detainee Muhammad Saad Iqbal also describes his ordeal there:

In early April, he said, the Americans flew him to Bagram, the American air base outside the Afghan capital, Kabul. He was held there for almost a year, at times shackled and handcuffed in a small cage with other detainees, and further interrogated, he said. “A C.I.A. person said, ‘We forgive you; just accept you met Osama bin Laden.’ I said, ‘No, I’m not going to say that.’ ” Even though polygraph tests showed that he was telling the truth, he said, he was shifted from cell to cell every few hours and deprived of sleep for six months.

More here.

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