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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Thank you for your kind words, Byron.
Mike Appleton:
thank you, I always did enjoy reading your arguments. Very well thought out and supportive of your position.
The arguments, of course, make no more sense under Obama than they did under Bush. We need to come to grips with the principle that the ancient right of habeas corpus is not, and should not be, abandoned for any reason because it is absolutely fundamental to the idea of human freedom. This is readily demonstrable. First, we recognize the right to liberty to be “unalienable,” and therefore of universal application. Thus, it makes no difference whether the persons we have taken into custody are held in Bagram or Guantanamo or the caves of Afghanistan. Second, the deprivation of an unalienable right requires at a minimum that the grounds and justification be subject to truly independent judicial review. Regardless of how many “tribunals” we create for that purpose, our experience teaches that only the federal judiciary satisfies the requirements of objectivity and independence. Third, the absence of basic due process encourages precisely the sort of conduct which has demeaned this country in the eyes of much of the rest of the world: random detentions, bounty hunting, anonymous accusations, torture and murder.
It cannot be denied that the unlawful practices of the Bush administration have created a terrible dilemma for Pres. Obama. But the dilemma cannot be resolved by simply pursuing the same policies. Moreover, we cannot ever hope to restore our nation’s reputation as a symbol of justice, let alone encourage the gradual recognition of human rights by other countries, unless we acknowledge the errors of the previous administration and recommit ourselves to the rule of law.
P.S., welcome back, Bron98.
Here’s a really hard look at this from Glenn Greenwald:
http://www.salon.com/opinion/greenwald/
If it’s wrong under Bush, it’s wrong under Obama.
From the ACLU;
“Obama Administration Seeks To Deny Bagram Prisoners Access To U.S. Courts
Detainees In Afghan Prison Should Be Afforded Legal Right To Challenge Detention, Says ACLU
WASHINGTON – September 15 – The Obama administration has filed a brief with a federal appeals court in Washington arguing that the approximately 600 detainees in U.S. custody at Bagram Air Base in Afghanistan are not entitled to have their cases heard in U.S. courts. Some of the detainees at Bagram have been held for up to six years with no meaningful opportunity to challenge their detention, and there are some prisoners there who are unconnected to the war in Afghanistan but who have been sent there from locations around the world.”
http://www.commondreams.org/newswire/2009/09/15-16
Newest develoment:
“Is Bagram Obama’s New Secret Prison?
by Andy Worthington
On Monday, one day after the New York Times and the Washington Post reported that the Obama administration was planning to introduce tribunals for the prisoners held in the US prison at Bagram airbase, Afghanistan, the reason for the specifically-timed leaks that led to the publication of the stories became clear.
The government was hoping that offering tribunals to evaluate the prisoners’ status would perform a useful PR function, making the administration appear to be granting important rights to the 600 or so prisoners held in Bagram, and distracting attention from the real reason for its purported generosity: a 76-page brief to the Court of Appeals for the District of Columbia (PDF), submitted yesterday, in which the government attempted to claim that “Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan.”
The main reason for this brazen attempt to secure a PR victory before the appeal was filed is blindingly obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and “rendered” to Bagram, where they have been held for up to six years, had the right to challenge the basis of their detention in US courts.
Below, I discuss the government’s position regarding these men, and explain why introducing Guantánamo-style tribunals at Bagram is no substitute for the Geneva Conventions, and at the end of the article I also ask whether the government may not have an even darker motive, related to what I perceive to be comments from administration officials revealing Bagram’s ongoing use as a secret prison for foreign suspects “rendered” from other countries.”
http://www.commondreams.org/view/2009/09/15-10
The persons most vocal, here, haven’t bothered to research how government lawyers are required to argue cases under Federal Rules – ie BY LAW.
Needless to say the private sector has more leeway than the public sector.
Obama et al, no doubt, are looking for ways to retract the ‘new’ rules without damaging the original rules’ intent. That, unfortunately means waiting for the right case or for allowing things to play out, as it were.
I also assume this is what rafflaw is referring to with regard to his ‘enoyment’ of the Greenwald article.
As I’ve noted previously, numerous times, these are ongoing cases and it is not the practice for the new DOJ to inject itself into ongoing prosecutions.
Thursday should prove to be an interesting day…