The "Other Gitmo"
Obama backs Bush on key terrorist detention policy.
11:00 PM, Mar 5, 2009 • By STEPHANIE HESSLER
Fadi Al Maqaleh is one of the many "unlawful enemy combatants" being detained by the U.S. military at Bagram Airbase in Afghanistan. He seeks to challenge his detention in a U.S. court, but recently the Obama administration argued that he cannot. Adopting one of the Bush administration's controversial terrorist detention policies, President Obama's Justice Department told a federal court that it had no power to hear the case.
This case is tremendously important, because Bagram Airbase is one of the most crucial logistical bases in Afghanistan. Much of the military's supplies for the region are transported through Bagram, including weapons, equipment, and food. The airbase, nearly 4,000 acres, 40 miles north of Kabul, is also a vitally important detention facility, holding over 600 detainees, more than double the number held at the Guantánamo Bay Detention Camp. Most of these detainees are Afghans who were captured on the battlefield there, and it is expected that the number of Bagram detainees will increase as President Obama boosts military efforts in Afghanistan.
The Bagram detainees have been designated "unlawful enemy combatants" by the U.S. military. As such, they do not have the same rights to challenge their detention as prisoners of war have under the Geneva Conventions. One of the most contentious policies of the Bush administration involved its indefinite detention of suspected terrorists--without charges. In a series of legal battles, the prior administration argued that unlawful enemy combatants have no right to challenge their detention in federal court. Meanwhile, as Guantánamo litigation escalated in recent years, the Bush administration largely stopped moving prisoners there, leaving Bagram the favored alternative. Towards the end of President Bush's term, human rights groups began referring to Bagram as the "other Gitmo." Hina Shamsi of the ACLU said the "Bush administration is not content to limit its regime of illegal detention to Guantánamo, and has tried to foist it on Afghanistan."
In 2006, Al Maqaleh, a Yemini citizen, filed a habeas petition in the D.C. district court from the Bagram Airbase. (In a habeas action, a person being imprisoned by the government can come into court to challenge his detention.) He is one of four Bagram detainees who have asked a federal judge to set them free. Al Maqaleh claims he has been there since 2003. He also maintains that he was not apprehended on the battlefield and is not an enemy combatant. The Bush administration argued that the court must dismiss Al Maqaleh's habeas petition because he has no legal right, under any statute or the Constitution, to enter federal court and make a case that he should be released. In other words, the military's determination that he is a suspected terrorist worthy of imprisonment is the final word; it cannot be challenged in court.
Judge Bates of the D.C. district court held a hearing in early January. Shortly thereafter, President Obama took office and in his first week issued a bold executive order to close Guantánamo, but did not specify what to do with the detainees. In light of this development, the judge thought that President Obama had "indicat[ed] significant changes to the government's approach" to terrorist detention. Therefore, he invited President Obama's legal team to alter or modify the government's position, because a "different approach could impact the Court's analysis" of the case.
Judge Bates and the human rights lobby had good reason to expect a different approach. Last fall, while the Bush administration was defending its terrorist detention policies in court, Obama was on the campaign trail condemning them. In one of Obama's most rousing performances during the race, at a town hall event in Farmington Hills, Michigan, he suggested that all people captured by the government have a constitutional right to challenge their detention.
"[I]f the Government grabs you, then you have the right to at least ask, 'Why was I grabbed?' and say, 'Maybe you got the wrong person'.... So the reason that you have this principle is not to be soft on terrorism. It's because that's who we are--that's what we're protecting! Don't mock the Constitution! Don't make fun of it! Don't suggest that it's un-American to abide by what the founding fathers set up--it's worked pretty well for over 200 years"!
But, on this point, President Obama has proven more prudent than candidate Obama. Opting against change, President Obama's Justice Department filed a two-sentence legal brief that embraced verbatim the arguments of Bush's lawyers: "Having considered the matter, the government adheres to its previously articulated position." Declining the judge's invitation to repudiate, modify, or even limit the Bush administration's position in the Al Maqaleh case, President Obama's legal team has reversed course from statements he made during the campaign, fully embracing some of the most controversial terrorist detention positions of his predecessor. These include (1) indefinite detention of alleged terrorists--without charge--is proper in the fight against terrorism; (2) such detention is appropriate even if the suspected terrorist was not apprehended on the battlefield; (3) alien unlawful enemy combatants held abroad may be imprisoned without rights to lawyers or courts; (4) the executive branch has the sole power to decide who should be detained; and (5) these combatants have no constitutional right to habeas corpus. In the legal brief drafted by President Bush's Justice Department, and fully adopted by President Obama's Justice Department, the government warned the judge that a ruling against it would have a "crippling effect on war efforts" and is simply "unthinkable both legally and practically."
Of course, the human rights lobby is up in arms. The New York Times called President Obama's decision a "blow to human rights lawyers." Barbara Olshansky, an attorney for the detainee, said she was extremely disappointed that the Obama administration chose to "adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights."
But President Obama now grasps the exigencies of national security. And President Obama--unlike candidate Obama--now realizes that the Bush administration's position is entirely consistent with the Constitution. Indeed, aliens detained in a war zone abroad have never had rights under our Constitution to ask our courts to set them free. There is no indication that our founding fathers intended habeas corpus to apply in such a case. And the Supreme Court decision directly on point, Johnson v. Eisentrager, explained that there has been "no instance where a court, in this or any other country where the [habeas] writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right."
Despite Johnson v. Eisentrager, the Supreme Court recently ruled that alien enemy combatants held at Guantánamo Bay can challenge their detention in federal court. But from a legal perspective, the Bagram facility differs from the Guantánamo Detention Camp in two key ways. First, Guantánamo is not in an active war zone. Second, the Supreme Court has decided that "in every practical sense Guantánamo is not abroad" because the United States exercises complete control over it. For these reasons, the Bush administration--and now the Obama administration--have argued that even if the writ of habeas corpus extends to Guantánamo, it surely must not extend halfway around the world to Bagram Airbase.
Therefore, Guantánamo's closure may be largely a symbolic gesture. The Obama administration may continue to hold current (and likely future) detainees at Bagram, with far fewer rights than detainees at Gitmo.
It remains to be seen the extent to which the human rights lobby will continue to fight for detainees now that the president they are fighting is Obama, not Bush.
Stephanie Hessler is a former constitutional lawyer for the Senate Judiciary Committee.