Federal Judiciary

U.S.: No habeas rights at Bagram

By Akin Gump Supreme Court Practice Group

The Obama Administration, in a full embrace of a controversial Bush Administration policy, told a federal judge on Friday afternoon that some 600 detainees being held by the U.S. military at Bargram airbase in Afghanistan have no right to go to U.S. courts to challenge their confinement.  In a one-paragraph reply to District Judge John D. Bates, the Justice Department said: “Having considered the matter, the Government adheres to its previously articulated position.”  The reply can be found here.

The filing means that, at least for the time being, the new Administration will treat Bagram prisoners differently than the 245 detainees still being held at Guantanamo Bay, Cuba.  President Obama has ordered the closing of Guantanamo within a year and, in the meantime, his government is conducting an individual-by-individual review of the status of those at the Navy prison on the island of Cuba.  There is now no similar process for those at Bagram, and White House officials have told reporters not to expect any change at the Afghan base for at least six months.

The Guanantamo prisoners, of course, have a constitutional right to file habeas cases against their detention, under the Supreme Court’s decision last June in Boumediene v. Bush.  But that ruling made no mention of the Bagram detainees, even though a number of those prisoners have filed habeas petitions in U.S. District Court in Washington.

By declining to change position, the new Administration cannot yet know whether Judge Bates will go along and reject the habeas challenges of Bagram detainees now pending in his Court.  In fact, at a hearing on their cases Jan. 7, the judge dropped hints that he may find that at least some of those at Bagram have a right to contest their initial confinement and their continuing imprisonment there.

After President Obama’s inauguration, and his announcement that he was moving to close Guantanamo, Judge Bates invited the government to “refine their position” on Bagram.  Based on the reply, the judge added, “the Court will decide whether further briefing or some other course is appropriate.”

The reply, however, seems to indicate that the government will rely on the written briefs and oral argument it has already filed in the Bagram cases.  Whether the detainees’ lawyers will seek to file some kind of response to the new government filing is unclear.

If there are no further filings, Bates probably will go ahead and rule on the threshhold question of whether a U.S. court has any jurisdiction over a U.S. airbase, and its prison facilities, in Afghanistan.

Because of the brevity of Friday’s government filing, it is uncertain whether the Obama Administration is leaving itself the option of reconsidering, later on, the detention policy for Bagram.  The Administration is increasing its military buildup in Afghanistan, and that presumably will lead to a rise in the number of prisoners captured and then confined at Bagram.

Full post as published by SCOTUSBLOG on February 20, 2009 (boomark / email).