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Federal Judge Grants Afghan Detainees Habeas Corpus

A federal judge ruled today that detainees held in US prisons outside of the United States could seek relief in U S Courts. U.S. District Judge John Bates handed down his ruling in a case brought by prisoners held at Bagram Air Force Base.

In his opinion, U.S. District Judge John Bates compared their cases to those of the Guantanamo detainees, who won the right to challenge their confinements in federal court under a landmark Supreme Court ruling last year. Today's decision is the first time that right has been extended to detainees held by U.S. forces outside Guantanamo.

This ruling puts President Obama in the uncomfortable position of having to further clarify his decision to let stand the Bush administration policy of denying detainees these rights:

"The Justice Department, under President Obama's administration, had agreed with the position of the Bush administration that the Bagram prisoners were not entitled to question their detention in U.S. civil courts.

On Jan. 22, the court invited the new administration to "refine" the Bush position. But the Justice Department informed Bates that it would "adhere to its previously articulated position" that the men had no right to habeas corpus, a centuries-old legal doctrine that permits people to challenge their imprisonment before judges."

The president had something of a free pass on the complex challenge of waging asymmetrical warfare since his declaration to close Guantanamo Bay. Although the administration offered no alternative as to where the Guantanamo detainees would be held the president was widely applauded by his base for offering what was obviously a platitude masquerading as policy. Now the president's decision timeline is closing in and should the most recent ruling be upheld on appeal it's fair to ask President Obama right now just where the hell these prisoners would be held.


Judge Bates did not grant habeus corpus. Rather, his ruling allows the detainees the right to seek relief.


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Comments (13)

"Now the president's decisi... (Below threshold)
Sean P:

"Now the president's decision timeline is closing in... it's fair to ask President Obama right now just where the hell these prisoners would be held."

On a cool night, by the firelight. If it don't feel right, they can go home.

Maybe I'm wrong, but in Ame... (Below threshold)

Maybe I'm wrong, but in America (and in prisons outside America that we are running) prisoners should have a right to some sort of due process. How about an arraignment, a trial, or so much as a charge levyed against them.

I truly fail to see with my very soul how the Bush administration and fellow Republicans are so against the very fabric of the Constitution.

I never thought that in America (yeah assholes, I know it's Cuba) someone could just rot in a prison cell for the rest of their lives with not even a hope of a god damned INDICTMENT.

The most puzzling thing is that you all will fly off (fully seriously!) with "fuck 'em they're brown and worship the wrong God" rebuttals.

This is why America has rejected you.

Ryan;First, the Co... (Below threshold)


First, the Constitution does not cover non-citizens, so there's literally nothing we could do to such prisoners that would violate the Constitution. I don't understand why so many people make such an obviously specious argument.

Morever, putting such prisoners in our civil justice system is, in fact, a violation of the Constitution, as we are signatories to the Geneva Conventions which explicitly forbids subjecting foreign nationals captured in battle to domestic justice. Why the Supreme Court thinks that is a good idea is beyond my comprehension.

The standard mechanism used is not civilian justice but military justice. Why, after centuries of that being the standard for western civilization, it must be changed, is something I have not seen addressed, much less answered. Could you perhaps enlighten us on that?

Ryan -In WW2 we he... (Below threshold)

Ryan -

In WW2 we held enemy soldiers for the duration of the war. No habeas corpus, no lawyers were involved.

That wasn't against the law. When the war was over, they were returned.

The Geneva accords established certain categories of combatants. The thinking was that you basically had two classes - those who were fighting for a recognized state, under control OF that state, with identification and uniforms and all that, and then there were the others, the non-uniformed combatants, who did NOT have the protections accorded by the agreements. They could be executed after a military tribunal acertains their status - but really, how long would you expect such a tribunal to take?

"Was the defendant shooting at our soldiers?"
"Was the defendant in uniform, or had some form of formal idenfication or uniform showing they were members of a recognized military?"
"Sucks to be him, them."
(I've seen one argument that non-uniformed combatants derive legitimacy as a de facto state by being a cohesive political collective. If so - then again we can put 'em in a prison camp for the duration of the war. When the war is over, they'll be freed, or if a prisoner exchange is coordinated. Seeing as the other 'side' (them being rather a more non-cohesive political entitiy than not) tends to cut off heads when they capture prisoners, there's kind of a limited quantity of prisoners to exchange.)

The Geneva Accords are pretty much the only recognized law on the battlefield. National, state, and local ordinances don't apply. I think this judge is way out of his jurisdiction on this, and letting his emotions and sensibilities trump the rationality.

JLawson;I must dis... (Below threshold)


I must disagree with your final sentence. I think this judge is correct, based on the Supreme Court ruling he cites. There is, in fact, no functional difference between the inmates at Camp Delta and those at Bagrahm. Let us put the blame where it belongs, on the SCOTUS.

"Was the defendant shoot... (Below threshold)

"Was the defendant shooting at our soldiers?"

The hell do you mean, "Yes"? You have proven that all of the detainees shot at uniformed coalition troops? Care to share this proof? You are aware that Afghans were selling out their neighbours in exchange for rewards, right? Some detainees are being held simply because some other Afghan wanted a few thousand U.S. dollars and was willing to lie and imprison an innocent person to get it?

Just because they've been locked up without due process, does not make them enemy "combatants". And the fact that it's difficult to determine where they should be released is certainly a legal and ethical challenge, but not a reason not to release them.

Ah, Hyper - you're so funny... (Below threshold)

Ah, Hyper - you're so funny...

You couldn't tell a hypothetical situation intended to prove a point?

Let's see. We'll take this slowly. It's a war, you're in the middle of combat operations.

Our soldiers catch a guy, in a mosque they've been taking fire from. Ignoring the fact that a mosque is normally a protected area, but that protection is nullified when someone uses it to stage offensive acts - IE using it as a firing point - SOMEONE's been shooting from that mosque.

They find one person in the mosque - with a rifle. The rifle barrel is hot to the touch. Near windows that shots were fired from are spent shell casings. The guy says he didn't fire the rifle. No other people around.

He has no ID on him. He has, however, a hot rifle. He doesn't belong to a recognized army - he's not in uniform.

By the laws of war - he's an non-uniformed combatant. At this point we could have the conversation above. We'll even stage it in an impromptu courtroom for you - the mosque courtyard. There's a Lieutenant handy, even, and he's running the show.

Let me recap it for you.

"Was the defendant shooting at our soldiers?"
"Yes." (By all evidence, apparently.)
"Was the defendant in uniform, or had some form of formal idenfication or uniform showing they were members of a recognized military?"
"No." (No ID, no uniform.)
"Sucks to be him, them."
And he's taken out and shot. End of hypothetical story, in accordance with the laws of war.

But that's not what we do, is it? Even though it'd be pefectly legal to do so. Instead, we spend considerable time and effort to get these folks to safety, treating them as if they were legitimate POWs - except for one minor problem.

Who do we let them go to? WHEN do we let them go? When the war is over? THEY declared war on US on 9/11. Who are THEY? Good damn question, isn't it? Who has the authority to surrender for Al Quaeda or militant Islam in general?

We'll feed them, clothe them, take care of medical problems, and give them religious materials. And keep them locked up indefinitely.

Sucks to be them - but it's better than being killed on a battlefield, right?

Is that your threshold for ... (Below threshold)

Is that your threshold for decency, JL? Simply being less barbaric than during WWII?

Your example supports your perspective, but what about farmers who were sold out by other farmers for a pittance? Is the word of one Afghan farmer reason enough to indefinitely detain another Afghan farmer?

(No, it isn't, but it is if you're "tough on terror".)

"Is that your threshold ... (Below threshold)

"Is that your threshold for decency, JL? Simply being less barbaric than during WWII?"

Hyper - you keep missing the point, and I can't believe it isn't intentional.

Why were the Geneva Accords conceived and ratified in the first place? To codify what was expected of lawful combatants, correct?

What do you do with UNLAWFUL combatants on the battlefield? You process them in accordance with the laws of war, right?

The laws of war allow for quick execution of unlawful combatants. We don't do that. Neither do we give them fluffy pillows and bunny slippers. (Well, I'll grant you the pillows - and slippers, non-bunny, 1 pr each...)

Holding the prisoners until the war is over (even if it never is) is within the laws of war. Barbarism is cutting someone's head off because you've captured them and it makes a good publicity video to keep the other jihadis stoked up. Barbarism is setting up car bombs and targeting women and children.

But you're blind to that sort of barbaric behavior, aren't you? It just plain doesn't register as anything you should get at all concerned about. People getting blasted to bits by suicide bombers don't seem to trouble you as much as people being held in a military prison.

How DID you ever manage to get your vision corrupted like that? What did you learn to get your ethical thinking so compromised that you can't see a difference, or see what WE do as worse than what THEY do?

Sigh...Asking that... (Below threshold)


Asking that captured combatants--lawful or otherwise--receive due process does not mean that I am blind to the barbarism of jihadis. Nowhere in anything I have ever said or written is that even remotely implied.

If you're willing to index the rightness/wrongness of how the U.S. treats its hostages to how jihadis treat hostages/women/children, then you're being morally relativistic, which is something conservatives are supposed to hate.

"Asking that captured co... (Below threshold)

"Asking that captured combatants--lawful or otherwise--receive due process does not mean that I am blind to the barbarism of jihadis."

They did receive due process, under the laws of war. And they received far more 'justice' and mercy than they were actually due according to the laws of war.

They will be held, in relative comfort, until the end of the war. That's sufficient.

It's insufficient as the "w... (Below threshold)

It's insufficient as the "war" is hardly defined, nor is the "enemy". (Taliban? Al Qaeda? Every Muslim who cheered on 9/11?) Depending on who's defining these terms, these people could be held forever, as terrorism is not going to go away and neither will Al Qaeda (in some shape or form).

We're talking about the det... (Below threshold)

We're talking about the detainees in Afghanistan, Hyper. Do try to keep on track.

The innocent ones will eventually be released. There's already been quite a few innocent folks released from Gitmo. And some have even gone back to their old trades, but they've been found dead in other places.

Released Detainees Rejoining The Fight (washingtonpost.com)

At least 10 detainees released from the Guantanamo Bay prison after U.S. officials concluded they posed little threat have been recaptured or killed fighting U.S. or coalition forces in Pakistan and Afghanistan, according to Pentagon officials.

One of the repatriated prisoners is still at large after taking leadership of a militant faction in Pakistan and aligning himself with al Qaeda, Pakistani officials said. In telephone calls to Pakistani reporters, he has bragged that he tricked his U.S. interrogators into believing he was someone else.
There isn't ANYONE guilty in a prison, Hyper. All you've got to do is ask 'em - they're innocent, pure and clean as the driven snow. And you seem to forget about the custom of taquiya, or taqqiya, or taqiyya, depending on spelling.
Within the Shia theological framework,[1] the concept of Taqiyya (تقية - 'fear, guard against', also taghiyeh)[2] refers to a dispensation allowing believers to conceal their faith when under threat, persecution or compulsion.[3] The word "al-Taqiyya" literally means: "Concealing or disguising one's beliefs, convictions, ideas, feelings, opinions, and/or strategies at a time of imminent danger, whether now or later in time, to save oneself from physical and/or mental injury." A one-word translation would be "dissimulation."
Picked up on a battlefield or turned in as an 'insurgent', they'll be held.

"these people could be held forever, as terrorism is not going to go away and neither will Al Qaeda (in some shape or form)."

Yes. And I have no problem with their being held. I'd LOVE to see Al Quaeda go away. I'd love to see the Taliban disappear. I'd love to see every sect that thinks that the height of moral behavior resides in head-chopping of infidels suddenly have all their members die of spontaneous accidental decapitation. I'd love to see members of sects who believe their highest calling is to explode themselves in amongst women and children find their bombs spontaneously detonating when they put them on.

I want the threat to go away. I want the world of 9/10 back - where we didn't have to worry about crap like this.

But it's not going away, and there's no going back - ever.






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