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The "Other Gitmo"

Obama backs Bush on key terrorist detention policy.

11:00 PM, Mar 5, 2009 • By STEPHANIE HESSLER
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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.