After seeking adopting Bush positions on unlawful surveillance last week, President Obama has adopted another controversial Bush policy: opposing basic legal rights for detainees held in U.S. military prison in Afghanistan. Some of the most egregious allegations of torture and abuse have focused on such prisons as the one at Bagram Air base. President Obama is now claiming that access to courts and review in such cases would threaten national security.
The Administration is pursing this challenge after a adverse ruling by U.S. District Judge John D. Bates and embraces the view of President Bush that individuals held in U.S. jails have no U.S. legal protections so long as the Administration keeps them in outside of our borders. The Obama administration is arguing that the “the military would be unable to move non-Afghan citizens captured across the border in Pakistan” into the prison for “security or centralized intelligence gathering” if they have such basic rights.
The argument is quite extreme because the standard is relatively low. It would not prevent the government from seizing and interrogating individuals. Rather, if the government is going to hold someone for a prolonged period, the government needs to establish an objective basis for the detention — a valuable requirement given the hundreds of detainees later found to be held without justification under the Bush Administration. Judicial review would afford needed protections against such abuses and force officials to use objectively defensible standards in detaining and confining individuals.
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