Obama and Habeas Corpus — Then and Now April 11, 2009
Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.Tags: afghanistan detainees, bagram, boumedinei.v.bush, bush administration, Criminal Justice, doj, due process, geneva conventions, glenn greenwald, Guantanamo, habeas corpus, human rights, judge bates, justice department, obama candidate, obama president, rendition, supreme court, torture
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Published on Saturday, April 11, 2009 by Salon.com
It was once the case under the Bush administration that the U.S. would abduct people from around the world, accuse them of being Terrorists, ship them to Guantanamo, and then keep them there for as long as we wanted without offering them any real due process to contest the accusations against them. That due-process-denying framework was legalized by the Military Commissions Act of 2006. Many Democrats — including Barack Obama — claimed they were vehemently opposed to this denial of due process for detainees, and on June 12, 2008, the U.S. Supreme Court, in the case of Boumediene v. Bush, ruled that the denial of habeas corpus rights to Guantanamo detainees was unconstitutional and that all Guantanamo detainees have the right to a full hearing in which they can contest their accusations against them.
In the wake of the Boumediene ruling, the U.S. Government wanted to preserve the power to abduct people from around the world and bring them to American prisons without having to provide them any due process. So, instead of bringing them to our Guantanamo prison camp (where, the U.S. Supreme Court ruled, they were entitled to habeas hearings), the Bush administration would instead simply send them to our prison camp in Bagram, Afghanistan, and then argue that because they were flown to Bagram rather than Guantanamo, they had no rights of any kind and Boudemiene didn’t apply to them. The Bush DOJ treated the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game — fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process. Put another way, you just close Guantanamo, move it to Afghanistan, and — presto — all constitutional obligations disappear.
Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue — the Obama DOJ argued, as The New York Times‘s Charlie Savage put it, “that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.” Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country — abducted from their homes and workplaces — and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind — as long as they are kept in Bagram rather than Guantanamo.
Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Guantanamo as it does to Bagram. Notably, the district judge who so ruled — John Bates — is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge. In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind (click image to enlarge):
. . . 
As Judge Bates noted, the prisoners shipped to Bagram actually have even fewer rights than the Guantanamo detainees did prior to Boudemiene, because at least the latter were given a sham Pentagon review (the CSRT tribunal), whereas the U.S. Government — under both Bush and Obama — maintain that Bagram prisoners have no rights of any kind.
In the wake of Judge Bates’ ruling that foreign detainees shipped to Bagram at least have the right to a hearing to determine their guilt, what is the Obama DOJ doing? This:
The Obama administration said Friday that it would appeal a district court ruling that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight. . . .
Tina Foster, the executive director of the International Justice Network, which is representing the detainees, condemned the decision in a statement.
“Though he has made many promises regarding the need for our country to rejoin the world community of nations, by filing this appeal, President Obama has taken on the defense of one of the Bush administration’s unlawful policies founded on nothing more than the idea that might makes right,” she said.
Last month, I interviewed the ACLU’s Jonathan Hafetz, counsel to several of the Bagram detainees, who said:
What happened was, these people were picked up in this global war on terror, were brought to Guantanamo in 2004, and once Guantanamo became subject to habeas corpus review, the administration basically, the Bush administration stopped bringing people there, and started bringing them to Bagram, and Bagram’s population has shot up, and it’s become in some sense the new Guantanamo. . . . And so what you have is you have a situation where the Bush administration, was free to, and the Obama administration will continue to be free to, create a prison outside the law.
The Obama DOJ is now squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions. Leave aside for the moment the issue of whether you believe that the U.S. Government should have the right to abduct people anywhere in the world, ship them to faraway prisons and hold them there indefinitely without charges or any rights at all. The Bush DOJ — and now the Obama DOJ — maintain the President does and should have that right, and that’s an issue that has been extensively debated. It was, after all, one of the centerpieces of the Bush regime of radicalism, lawlessness and extremism.
Consider, instead, what Barack Obama — before he became Persident — repeatedly claimed to believe about these issues. The Supreme Court’s Boudemiene ruling was issued at the height of the presidential campaign, and while John McCain condemned it as “one of the worst decisions in the history of this country,” here is what Obama said about it in a statement he issued on the day of the ruling:
Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
My, what a ringing and inspiring defense of habeas corpus that was from candidate Barack Obama. So moving and eloquent and passionate. And that George W. Bush sure was an awful tyrant for trying to “create a legal black hole at Guantanamo” — apparently, all Good People devoted to a restoration of the rule of law and the Constitution know that the place where the U.S. should “create a legal black hole” for abducted detainees is Bagram, not Guantanamo. What a fundamental difference that is.
Even worse, here is what Obama said on the floor of the Senate in September, 2006 when he argued in favor of an amendment to the Military Commissions Act that would have restored habeas corpus rights to Guantanamo detainees. I defy anyone to read this and reconcile what he said then to what he is doing now:
The bottom line is this: Current procedures under the CSRT are such that a perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.
I would like somebody in this Chamber, somebody in this Government, to tell me why this is necessary. I do not want to hear that this is a new world and we face a new kind of enemy. I know that. . . . But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.
This is not just an entirely fictional scenario, by the way. We have already had reports by the CIA and various generals over the last few years saying that many of the detainees at Guantanamo should not have been there. As one U.S. commander of Guantanamo told the Wall Street Journal:
“Sometimes, we just didn’t get the right folks.”
We all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria–through a rendition agreement–tortured, only to find out later it was all a case of mistaken identity and poor information. . . .
This is an extraordinarily difficult war we are prosecuting against terrorists. There are going to be situations in which we cast too wide a net and capture the wrong person. . . .
But what is avoidable is refusing to ever allow our legal system to correct these mistakes. By giving suspects a chance–even one chance–to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit. . . .
Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody’s right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.
In Sunday’s New York Times, it was reported that previous drafts of the recently released National Intelligence Estimate, a report of 16 different Government intelligence agencies, describe ”actions by the United States Government that were determined to have stoked the jihad movement, like the indefinite detention of prisoners at Guantanamo Bay.”
This is not just unhelpful in our fight against terror, it is unnecessary. We don’t need to imprison innocent people to win this war. For people who are guilty, we have the procedures in place to lock them up. That is who we are as a people. We do things right, and we do things fair.
Two days ago, every Member of this body received a letter, signed by 35 U.S. diplomats, many of whom served under Republican Presidents. They urged us to reconsider eliminating the rights of habeas corpus from this bill, saying:
“To deny habeas corpus to our detainees can be seen as a prescription for how the captured members of our own military, diplomatic, and NGO personnel stationed abroad may be treated. ….. The Congress has every duty to insure their protection, and to avoid anything which will be taken as a justification, even by the most disturbed minds, that arbitrary arrest is the acceptable norm of the day in the relations between nations, and that judicial inquiry is an antique, trivial and dispensable luxury.”
The world is watching what we do today in America. They will know what we do here today, and they will treat all of us accordingly in the future–our soldiers, our diplomats, our journalists, anybody who travels beyond these borders. I hope we remember this as we go forward. I sincerely hope we can protect what has been called the “great writ” — a writ that has been in place in the Anglo-American legal system for over 700 years.
Mr. President, this should not be a difficult vote. I hope we pass this amendment because I think it is the only way to make sure this underlying bill preserves all the great traditions of our legal system and our way of life.
I yield the floor.
So that Barack Obama — the one trying to convince Democrats to make him their nominee and then their President — said that abducting people and imprisoning them without charges was (a) un-American; (b) tyrannical; (c) unnecessary to fight Terrorism; (d) a potent means for stoking anti-Americanism and fueling Terrorism; (e) a means of endangering captured American troops, Americans traveling abroad and Amerians generally; and (f) a violent betrayal of core, centuries-old Western principles of justice. But today’s Barack Obama, safely ensconsed in the White House, fights tooth and nail to preserve his power to do exactly that.
I’m not searching for ways to criticize Obama. I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law. But these actions — these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney — are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don’t want to see it, or that you’re so convinced of his intrinsic Goodness that you’ll just believe that even when it seems like he’s doing bad things, he must really be doing them for the Good. If there was any unanimous progressive consensus over the last eight years, it was that the President does not have the power to kidnap people, ship them far away, and then imprison them indefinitely in a cage without due process. Has that progressive consensus changed as of January 20, 2009? I think we’re going to find out.
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Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus April 3, 2009
Posted by rogerhollander in Criminal Justice.Tags: afghanistan detainees, afghanistan prisoners, bagram, bush administration, charlie savage, doj, enemy combatants, eric schmitt, geneva conventions, Guantanamo, habeas corpus, human rights, john bates, judge bates, justice department, obama administration, roger hollander, rule of law, terrorism suspects, War Crimes
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Published on Friday, April 3, 2009 by The New York Times
WASHINGTON – A federal judge ruled on Thursday that some prisoners held by the United States military in Afghanistan have a right to challenge their imprisonment, dealing a blow to government efforts to detain terrorism suspects for extended periods without court oversight.
![[Attiqullah 10, son of Hafizullah Shahbaz Khiel, an Afghan detainee shows documents proclaiming Hafizullah's innocence during an interview with Associated Press at his uncle's house on the outskirts of Kabul,Afghanistan, Tuesday, Jan 20, 2009. He is being held at Bagram Air Base.(AP Photo/Rafiq Maqbool) ]](http://www.commondreams.org/files/article_images/bagram_innocence.jpg "bagram_innocence.jpg")
Attiqullah 10, son of Hafizullah Shahbaz Khiel, an Afghan detainee shows documents proclaiming Hafizullah’s innocence during an interview with Associated Press at his uncle’s house on the outskirts of Kabul,Afghanistan, Tuesday, Jan 20, 2009. He is being held at Bagram Air Base.(AP Photo/Rafiq Maqbool)In a 53-page ruling that rejected a claim of unfettered executive power advanced by both the Bush and Obama administrations, United States District Judge John D. Bates said that three detainees at the United States’ Bagram Air Base had the same legal rights that the Supreme Court last year granted to prisoners held at the American naval base in Guantánamo Bay, Cuba.
The three detainees – two Yemenis and a Tunisian – say that they were captured outside Afghanistan and taken to Bagram, and that they have been imprisoned for more than six years without trials. Arguing that they were not enemy combatants, the detainees want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
The importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has increased under the Obama administration, which prohibited the Central Intelligence Agency from using its secret prisons for long-term detention and ordered the military prison at Guantánamo closed within a year. The administration had sought to preserve Bagram as a haven where it could detain terrorism suspects beyond the reach of American courts, telling Judge Bates in February that it agreed with the Bush administration’s view that courts had no jurisdiction over detainees there.
Judge Bates, who was appointed by President George W. Bush in 2001, was not persuaded. He said transferring captured terrorism suspects to the prison inside Afghanistan and claiming they were beyond the jurisdiction of American courts “resurrects the same specter of limitless executive power the Supreme Court sought to guard against” in its 2008 ruling that Guantánamo prisoners have a right to habeas corpus.
Dean Boyd, a Justice Department spokesman, said that the administration was reviewing the decision and that it had made no decision about whether to appeal.
Judge Bates emphasized that his ruling was “quite narrow.” He said that it did not apply to prisoners captured on the battlefield in Afghanistan, and that a determination of whether prisoners might challenge their detention in court would depend on a case-by-case analysis of factors like their citizenship and location of capture.
“It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war,” the judge wrote. “It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”
Moreover, the judge has put off ruling that a fourth prisoner – also captured outside Afghanistan, but holding Afghan citizenship – had a right to challenge his detention. He said any order to release the detainee could lead to frictions with the Afghan government, and asked for additional briefings on that case.
The United States is holding about 600 people at Bagram without charges and in spartan conditions. United States officials have never provided a full accounting of the prison population, but an American government official, speaking on condition of anonymity because it is against policy to discuss details of the Bagram prison, said that fewer than a dozen detainees fell into the category affected by the ruling – non-Afghans captured beyond Afghan borders.
Judge Bates has been involved in several high-profile executive power cases. In 2002, he sided with the Bush administration in a lawsuit over whether Vice President Dick Cheney’s energy task force records were required to be disclosed. But in 2008, he sided with Congress in an executive-privilege dispute over whether top aides to Mr. Bush were immune from subpoenas related to the firing of federal prosecutors.
David Rivkin, an associate White House counsel in the administration of the first President Bush, predicted that Judge Bates’s ruling would be overturned on appeal. He warned that the ruling “gravely undermined” the country’s “ability to detain enemy combatants for the duration of hostilities worldwide.”
But Tina Foster, the executive director of the International Justice Network, which is representing the four Bagram detainees, praised Judge Bates’s decision as “a very good day for the Constitution and the rule of law.”
Ms. Foster said that the Bagram ruling meant that changes to the Bush detention policies would go beyond merely closing Guantánamo and extend “to any place where the United States seeks to hold individuals in a legal black hole.”
The power of federal judges to review decisions by the executive branch to imprison a terrorism suspect was among the most contentious legal issues that arose after the 2001 terrorist attacks. The Bush administration began a policy of holding prisoners indefinitely and without trials, arguing that federal judges had no authority to second-guess its decisions about whom to name an “enemy combatant.”
But human-rights lawyers challenged those policies, winning Supreme Court decisions in 2004, 2006 and 2008 that gradually expanded the reach of the American legal system over detainees.
After taking office, Mr. Obama ordered a review of the evidence against each of the roughly 240 prisoners at Guantánamo as a first step toward closing the prison within a year.
He did not extend the steps he was taking to resolve the fate of the Guantánamo prisoners to those held at Bagram, although a comprehensive review of detainee policies is due to be completed in July. Ms. Foster said that the Bagram case may force the administration to speed up its decisions.
Eric Schmitt contributed reporting.
As Senate Blocks Guantanamo Closing Funding, Habeus Hating Judge Allows Indefinite Imprisonment There May 20, 2009
Posted by rogerhollander in Civil Liberties, Criminal Justice, Human Rights, Torture.Tags: aclu, al-Qaeda, detainees, Guantanamo, guantanamo prisoners, habeus corpus, john bates, judge bates, rob kall, robert gibbs, Robert Mueller, roger hollander, senate, senators, Taliban, valerie plame
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Rob Kall
www.opednews.com, May 20, 2009
90 senators who are afraid of being accused of allowing Guantanamo prisoners into their states opposed funding the costs for closing Guantanamo.
and
Judge Who’s Allowing Unlimited Imprisonment of Guantanamo Prisoners Also Scuttled Plame Lawsuits and Opposes Habeus Corpus
Late Tuesday, District Judge Bates ruled that the President of the United States may indefinitely detain, without charges, al-Qaida and Taliban members and terrorist suspects held at Guantánamo Judge Bates added a few caveats which may help some of the prisoners, as the Guardian reported he stated that,
District Judge John D. Bates, appointed by George W. Bush in 1991. He.was appointed to serve as a FISA judge on the United States Foreign Intelligence Surveillance Court by SCOTUS Chief Justice John Roberts. The judge was also involved in decisions rejecting efforts by Valerie Plame to bring Dick Cheney to trial. Wikipedia reports that the judge is an avid opponent to habeus corpus. This was a win for the Obama administration, which claims to be seeking to close the Guantanamo facility, especially since, today, the senate refused to provide the funds Obama requested, which were to cover the cost of closing the facility. The 90 to 6 vote against funding sent a resounding message that both Dems and Republicans insist upon a more well defined plan before they will fund the closing. FBI Director Robert Mueller, appointed by George W. Bush in June 2001, warned congress that there could be risked associated with moving Guantanamo prisoners to the US, apparently sabotaging Obama administration efforts to fulfill Obama’s promise to close the facility,or giving him cover to not follow through on the promise. The New York Times reports
In both houses of congress, both parties are calling for a clearer plan. And so, we wait, as have the prisoners at Guantanamo, 80-90% of whom were arrested based on bounties of $5000 to $20,000 paid to Afghans earning, in many cases, less than $1000 a year.
Rob Kall is executive editor, publisher and site architect of OpEdNews.com, President of Futurehealth, Inc, more…)