Constitutional Law

Bush Detetion Policies Haunt New Administration

A federal court has rejected an Obama administration position on habeas petitions from Guantanamo Bay. Earlier this week, the administration argued against broadly applicable definition of "enemy combatants." Rather, the Justice Department urged a case-by-case approach to determining the merits of habeas petitions from Guantanamo detainees.

According to SCOTUSblog's Lyle Denniston, this is the first rebuff to the Obama administration by federal courts. Judge John D. Bates's opinion rejected the case-by-case approach, ordering the administration to offer a definition of "enemy combatant" by March 13. Otherwise, Bates warned, the court would proceed in assessing habeas petitions without the government influencing its analysis.

Bates and other D.C. District Court judges are also reviewing habeas petitions from detainees at Bagram Air Base, outside of Kabul, Afghanistan. There, the prisoner population is estimated to be more than double that at Guantanamo, according to the Christian Science Monitor. The crux of the issue for detainees at Bagram and Guantanamo is roughly the same: Do prisoners being detained by the U.S. military overseas have any legal rights?  

Military lawyers argue that the issue should not even be considered in the case of Bagram detainees. They say that, even more so than is the case for Guantanamo, Bagram is an active war zone which should be managed by the military and political leaders, not civilian judges.

Prof. Barbara Olshansky, who played a key role in Rasul v. Bush, disagrees. "We can't keep people without due process. [A habeas petition by a Bagram detainees is] important because it goes to the issue of does the writ extend to where the U.S. military is completely entrenched and controlling detention." Olshansky, Director of the International Human Rights Clinic at Stanford Law School, continued, "What we are really asking Judge Bates to do is define where the writ ends."

Full post as published by ACS Blog on February 13, 2009 (boomark / email).