The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Friday, April 3, 2009

Essentially the Same

By Losing a Court Case, the Obama Administration Wins a
Legal Precept. Does It Realize That?

The courts handed the Obama Administration a challenge and an opportunity yesterday, when U.S. District Judge John D. Bates ruled that three foreign detainees at Bagram Airfield in Afghanistan could challenge their detentions. This represents the first extension of such rights to detainees held elsewhere than Guantanamo Bay.

Captured outside of Afghanistan and subsequently moved to Bagram, the detainees in question, two Yemenis and a Tunisian, have remained imprisoned for the past six years without trial.

The Obama Justice Department adhered to the principles established by the former Bush Administration when defending this case.

Bagram is different from Guantanamo, they argued, because it is in an overseas war zone and the prisoners held there part of a military action. Releasing potentially dangerous terrorist suspects into that war zone could threaten security. The same would be true for diverting U.S. personnel there expressly to consider their cases. The Justice Department also warned of a slippery slope in which all foreigners captured by our military in worldwide conflicts must be granted access to U.S. courts.

Judge Bates bought their logic up to a point. He refused to grant legal rights to a fourth petitioner precisely because he was an Afghan citizen captured within Afghanistan. For the other three, however, he insisted Bagram and Gitmo were “essentially the same.” He repeatedly cited last year’s Supreme Court decision allowing Guantanamo detainees the right to challenge their detentions and applied a test created by the Justices in that case to Bagram.

Bates found Bagram detainees had been denied access to courts for “an unreasonable amount of time.”

In its original filings, the Bush Administration contended that the status of Bagram detainees underwent review every six months. However, Bates considered those reviews inadequate, noting detainees had no access to representation or evidence used against them. Detainees could not even speak on their own behalf, although they might submit written statements. Even so, Bates found they faced significant language and cultural barriers when attempting to conduct their own defenses.

“It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war,” Bates wrote in his fifty-three page ruling. “It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the same specter of limitless Executive power the Supreme Court sought to guard against.”

Many Obama supporters doubtless are disappointed and angry that the President chose to side with the Bush Administration in limiting detainee rights. It was probably more practicality than ideological agreement driving his decision, however.

Following executive orders to close down secret CIA prisons immediately and Guantanamo within a year, the Obama Administration still needs some central facility to hold the most dangerous of its captured terrorist suspects. With about six hundred detainees already held there, Bagram probably seemed a prime choice for that facility.

Obama is particularly sensitive to Republican charges raised during the election campaign that his policies regarding detainees are politically motivated and counter to U.S. security considerations. Conservative reaction to Judge Bates’s decision demonstrates the withering attacks Obama may be hoping to avoid.

David Rivkin, an associate White House counsel during the Administration of George H.W. Bush, predicted the ruling’s overturn on appeal. He warned that it “gravely undermined [the nation’s] ability to detain enemy combatants for the duration of hostilities worldwide.”

Republican Senator Lindsey Graham of South Carolina called the decision “dangerous and na├»ve” and said it put troops at risk by allowing a judge to micromanage a war thousands of miles away. “Using this logic in World War II would not have allowed us to capture Nazi operatives anywhere but in Germany,” Graham said.

Republican Representative John McHugh of New York, the leading minority member on the House Armed Services Committee, said the decision “turns warfare into lawfare and could place lives at risk.”

His supporters often style Obama as a Constitutional scholar and authority. As a candidate and now President, he has been quick to defend and uphold the authority of courts and the Rule of Law when he agreed with their decisions. The rubber really meets the road now that one of their opinions has gone against him.

It may be that the Administration’s somewhat passive stance in this case may have been a kind of “no contest” plea on their part; a desire to feel out the Judicial Branch’s position on detainees before applying their own preferences to construct official policy on the matter. It is suggestive that the Justice Department’s only reaction to yesterday’s ruling was to deem it under review with no immediate plans for appeal.

We may only hope they realize this decision holds an unseen benefit for them. By holding that Guantanamo is not unique from a legal perspective, the courts do much to deflate Republican charges that the President is using it as a political football and populist scapegoat at the expense of U.S. security and valid legal precepts.

Instead, by universalizing the rights granted to Gitmo detainees across all U.S. detainees, the courts imply it is policies granting the Executive Branch rights to hold prisoners indefinitely without trial and unilaterally decide who among them represent a legitimate threat to the United States that represent clear and present danger to civil liberties and Constitutional balance of powers.

Those grumbling against liberal, activist judges should know Judge Bates was one of the first federal judges appointed to the bench by George W. Bush back in 2001. He is an Army veteran and former career Justice Department official. He has presided over several high-profile cases in his eight year career, sometimes siding with the government and sometimes ruling against it.

Furthermore, another decision issued from the same courthouse by a different judge may also be cheering to the Obama Administration. U.S. District Judge Richard Leon declined to discharge Hedi Hammamy of Tusisia, despite his incarceration for seven years at Guantanamo Bay, because the government provided overwhelming evidence that he supported terrorism and would represent a major security risk if released.

If such precedent now stands at Guantanamo, then there seems little reason to believe that Bagram could not serve as a high-security facility for America’s most dangerous detainees, as the Obama Administration apparently desires, even if those detainees are subject to basic habeas corpus.

Standing with the Bush Administration on Bagram may not have been the most brilliant move by Obama’s Justice Department. Let us hope they are smart enough to see the victory within the defeat this ruling provided them as a result.

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