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Obama Administration: Guantanamo Detainees Have More Rights than Bagram Detainees, Who Have None
September 15, 2009 4:15 PM
Whatever limited rights detainees at Guantanamo have under the U.S. Constitution, the Obama administration argued in a brief filed last night, they are not shared by detainees in Afghanistan.
President Obama’s Justice Department last night filed a brief with the U.S. Court of Appeals for the District of Columbia arguing that the 600 or so detainees the U.S. is holding in Afghanistan at Bagram Air Base have no right to have their cases heard in U.S. courts. Unlike detainees at Guantanamo, those being held in Bagram – many of whom were picked up outside of Afghanistan -- have had no access to attorneys or to even hear the allegations against them.
You can read the filing HERE.
In habeas corpus cases brought by detainees Fadi al Maqaleh, Amin al Bakri and Redha al-Najar against the Obama administration, Solicitor General Elena Kagan and others argued that the three men, as foreign nationals detained under the law of war, have no right to trials in U.S. courts.
The U.S. Supreme Court ruling in Boumediene v Bush, which granted habeas rights to Guantanamo detainees, Kagan wrote, “rested heavily on the ‘unique status of Guantanamo’” in terms of “the nature and duration of the United States presence at the site of detention, and the practical obstacles to permitting the detainee to pursue habeas relief in United States court…”
Bagram, she wrote, “does not share the defining attributes of Guantanamo,” thus “an enemy alien apprehended and detained by the military overseas in an active war zone at the very least bears an extremely heavy burden before he may sue his captors civilly and require the federal courts to second guess the judgment of both political branches with respect to the reach of habeas jurisdiction.”
Jonathan Hafetz, a staff attorney with the American Civil Liberties Union National Security Project, told ABC News that the Obama administration seems to have “missed the essential point of Boumediene. It wasn’t just about Guantanamo the prison; it was about Guantanamo the idea. The court rejected the notion of detention without judicial review, and the government seems to be missing the point.”
Hafetz said the government can now bring detainees to Bagram instead of Guantanamo and thus avoid having to comply with habeas corpus, noting that Amin al Bakri wasn’t picked up in Afghanistan, but rather in Thailand.
As first reported by the New York Times on Saturday night, the Obama administration recently began forming official guidelines for allowing Bagram detainees more of a chance to challenge their detention. Detainees will be assigned “military representatives – not lawyers – to detainees to assist them in challenging their detention before a military-appointed review board.”
Hafetz called that “certainly an improvement and it will hopefully reduce mistaken detentions. But it doesn’t eliminate the need for judicial review to evaluate procedures and the standards used to hold people.”
-jpt
September 15, 2009 in Current Affairs, guantanamo bay, Iraq, Obama, Barack | Permalink | Share | User Comments (38)
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While I'm strongly opposed to the Presidents health plan and cap and trade I support what he is doing in Afganistan and Iraq. If he can stop the urge to spend
he has a shot at greatness.
Posted by: hkdakota | Sep 17, 2009 10:53:05 AM
Obama supporters are between a rock and a hard place, if they support the administration on this issue they are hypocrites and if they don't how can they possibly vote for his 2nd term?
Posted by: hkdakota | Sep 17, 2009 10:50:33 AM
under what do they have any rights?
Posted by: g55rumpy | Sep 17, 2009 7:46:41 AM
Those you pundits of morality and equality, seems to me that all have forgotten what happened 8 years ago. None of , I'm sure, have fought on a war or conflict.Yes, we all want peace and safety but none can be achieved without spilling blood. We have been on the road of appeasement before and failed miserably.Have anyone of you ever carry a weapon and wear the uniform? I have, I hate war, the stench of rotten corpse and blood but I will not hesitate to do it gain so you bunch of undeserving and unthankful yahoos can enjoy the freedom to put down those who have die for you. Enemy combatants are just that, once they become prisioners they will remain incarcirated until the comflict is over.WE did it to the German, we did it to the Japaneese and we will do it to the Al Quida fighters.When are you going to defend those who put their lives in danger day in and day out and stop the being on the other side.In WW11 you would probably being in jail too.
Posted by: Not a sheep | Sep 16, 2009 4:37:20 AM
The liberal PC crowd keep crying about how the terrorist detainees are mistreated and that is absurd! Go down to your local police station and watch how the detectives treat people accused of crimes! Mind you, I said accused not convicted. The Gitmo prisoners are treated much better than you will be if you have to be interrogated by your local police. Those Gitmo and Bagram detainees are people that were trying to kill our soldiers. Do whatever is necessary to get the information we need. Of course, the PC crowd is also complaining about the way that convicted criminals are treated in our prisons. That is why the prison systems are having to answer lawsuits from prisoners that complain that they don't get crunchy peanut butter, or claim to be mistreated because they are served margarine instead of real butter. If the liberal PC crowd had their way the honest people would be locked up and the criminals would run the country!
Posted by: Greyghost | Sep 16, 2009 1:09:13 AM
"There's a case that dealt with german prisoners in a chinese facility run by Americans. No due process rights. No habeas corpus. "
And that means...what?
Posted by: Fascist Hyena | Sep 16, 2009 12:19:36 AM
"abducting people"?
***
Capturing, abducting, apprehending
As for the rest, yeah, like I trust the judgement on right or wrong of "a loud-mouthed schnook" talking like a chicken hawk
Posted by: Alyson | Sep 16, 2009 12:10:19 AM
Now the President is supporting the Bush/Cheney position, more or less. I don't get it. So I certainly can't argue in favor of what the President is doing.
Posted by: Alyson |
First of all, "abducting people"?
A year ago, you and Glen and Obama were wrong. Now only you and Glen are wrong.
Hope that helps.
Posted by: Foghorn Leghorn | Sep 16, 2009 12:01:05 AM
Ryan, where are your comrades to help you defend Obama's decision to do the right thing and detain enemy combatants who would kill Americans if they had the chance?
Posted by: Jason | Sep 15, 2009 9:19:18 PM
***
This is an ill-conceived question, no? I get the comrades thing is intended to make progressives, Dems, liberals, etc sound like communists, and I'm a Dem but I don't get what you want--Ryan isn't defending the contradiction in the positions on Gitmo and Bagram, and he's being very consistent in his position. I feel the same way. I disagree with the admin's position on Bagram. I've heard nothing so far that would change my mind. As Glenn Greenwald has pointed out, at one time, before becoming president, Obama said that abducting people-- even suspected terrorists--from around the world and imprisoning them without charges was un-American, unnecessary to fight Terrorism, a means for stoking anti-Americanism and fueling Terrorism, a means of endangering captured American troops, Americans traveling abroad and Americans generally, and a violent betrayal of core, centuries-old Western principles of justice. And I agreed with him. Now the President is supporting the Bush/Cheney position, more or less. I don't get it. So I certainly can't argue in favor of what the President is doing.
Posted by: Alyson | Sep 15, 2009 11:26:58 PM
We finally get a President who's lifelike and human. He inherets two wars, a failing economy, Iran, North Korea, endless domestic issues including health reform and a host of other mind-numbing problems and the ignorant are missing the point. If Jesus was in the Whitehouse he'd probably have a hard time getting anything done. Washington is filled with self-serving "bought" politicians who put their own agendas and special interests before the American people as a single nation. They preach relentlessly about the budget, govt spending, etc., but they still suckle at the government teats every chance they get with no remorse.
So Mr. Obama is already becoming the sacrificial lamb after just nine months running the most complex corporation in the world.
Give the man a chance. And for the rest of you, thank you for the opportunity of making me puke.
Posted by: Cody Shepherd | Sep 15, 2009 11:21:07 PM
You have a weapon with one round. A cold blooded, vicious predator charges you.
You can "take the high road" and shoot yourself, or "reduce yourself to the same level as the predator," and save yourself. Good grief ... left wing, right wing ... some things are just plain common sense. These are terrorists. I think we've used that word so often we've become desensitized.
Kind of like "ethnic cleansing" vs extermination, or "collateral damage" versus tragic costs of war.
Terrorists are dangerous fanatics. They are entitled to the same mercy they showed to Daniel Perlman and all the innocent dead from their suicide stupidity. They are thugs. They would slit all of our throats if they could. Wake up, people. Intelligence gathering on fanatics isn't like taking away TV privileges. 911...New York 2973 dead. Flight 93 forty dead. Pentagon 187.
No prisoners. No mercy. Stand behind our leaders now, or start doing some research into which way is east to face.
Posted by: Cody Shepherd | Sep 15, 2009 11:02:23 PM
"Obama's decision on Gitmo was the correct one and he needs to be consistent when it comes to Bagram."
That "decision" would be his ill advised executive order to close Gitmo by January 22, 2010? How's that going?
I can answer that. It's going about as well as anybody who cared for one moment to think about what, exactly, to do with a lot of those fellows could have predicted. Exactly nowhere.
The Bush administration sent most of the detainees, in excess of 500 of them, home long before Obama signed that empty promise. Those who were left were either hard core terrorists that no administration in it's right mind would release, or they were men, like the Uighurs, who had no place to go.
This is probably a shell game. Obama's gonna close Gitmo by sending all those guys to Bagram.
He who laughs last laughs best.
ROTFLMAO
Posted by: Bridget | Sep 15, 2009 9:47:00 PM
ryan says: "The right wing's sadistic need to torture does not render US law obsolete."
Ryan, where are your comrades to help you defend Obama's decision to do the right thing and detain enemy combatants who would kill Americans if they had the chance? The "right wing" is in favor of "torture?" Well, as a "right winger," I am generally opposed to aggressive interrogations that you might call "torture," but I am definitely not opposed to slapping around, dunking repeatedly, or even tricking him into thinking one of our less restrained allies was in custody of him in order to obtain actionable information to arrest other terrorist plotters. The big point so many people seem to miss is that these interrogations are not meant to get evidence or confessions to be used in court to convict them. These enemy combatants are not criminals, they are enemy combatants who have sealed their fate of being detained by their presence in the battlefield, or in direct support of those fighting our military on the battlefield.
Posted by: Jason | Sep 15, 2009 9:19:18 PM
Breaking News for civil libertarians:
"WASHINGTON The Obama administration supports extending three key provisions of the Patriot Act that are due to expire at the end of the year, the Justice Department told Congress in a letter made public Tuesday.
"Lawmakers and civil rights groups had been pressing the Democratic administration to say whether it wants to preserve the post-Sept. 11 law's authority to access business records, as well as monitor so-called "lone wolf" terrorists and conduct roving wiretaps."
Posted by: Fascist Hyena | Sep 15, 2009 9:13:22 PM
Fascist- try looking a bit harder. There's a case that dealt with german prisoners in a chinese facility run by Americans. No due process rights. No habeas corpus. There's more cases that deal with those that were brought to American soil. Boumedienne's decision was a result of previous rulings. Durrrrrr.
Posted by: TurdFerguson | Sep 15, 2009 9:03:34 PM
"...the case law dates back over half a century."
No Supreme Court decision in history had ever addressed the issues raised in Boumedienne, and four Supreme Court justices, as well as a US Circuit Court of Appeals, disagreed with the unprecedented ruling of the five-justice majority.
Since the Court does not render advisory opinions, Bush had no way of knowing how the Court would ultimately rule unless and until he acted, and neither did anyone else on earth. He acted pursuant to a congressional enactment, and following the Supreme Court's 5-4 decision he complied with it.
Posted by: Fascist Hyena | Sep 15, 2009 8:21:08 PM
"Obama's decision on Gitmo was the correct one and he needs to be consistent when it comes to Bagram."
IWhen you find out what his position on Gitmo is, please let us know.
Please tell us in what respect you think that his decision on Bagram is inconsistent with his decision on Gitmo.
Please tell us what part of the Geneva convention addresses the right of detainees to the habeas corpus provision of the US constitution.
Posted by: Fascist Hyena | Sep 15, 2009 8:10:55 PM
So odd. I expected to loathe everything Obama did vis a vis military and defense. I only loathe about half of what he's done. Now, if he'd appoint a few more like Robert Gates and a few less like Van Jones, I might get to the point where I only loathe about half of his domestic agenda!
Posted by: Bridget | Sep 15, 2009 8:10:39 PM
All you need to do is follow the case law that governs this and you'll see why this makes sense. It is not hypocrisy, the case law dates back over half a century. Something Bush should've done before he brought people to Gitmo. Durrrrrrr.
Posted by: TurdFerguson | Sep 15, 2009 7:52:09 PM
Obama REALLY must be Cheney's cousin... after all different face... SAME criminal policy... and NOBODY cares!!! Aww... How PC of you ALL!!!
Posted by: jafo | Sep 15, 2009 7:24:06 PM
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