Appeals court declines to extend Boumediene to Bagram

posted at 2:55 pm on May 21, 2010 by Ed Morrissey

The DC circuit court of appeals struck down a ruling from last year that had granted habeas corpus to detainees at Bagram AFB in Afghanistan.  Today’s unanimous decision reflects at least a momentary deflection from Boumediene, which granted detainees at Guantanamo Bay access to the federal court system.  However, it is also a narrow ruling, affecting only three of the hundreds of detainees at Bagram, and could still be reversed by the Supreme Court (via Andy McCarthy):

A federal appeals court ruled on Friday that prisoners being held without trial in Afghanistan by the military have no right to challenge their imprisonment in American civilian courts. The decision, overturning a lower court ruling in the detainees’ favor, was a victory for the Obama administration’s efforts to hold terrorism suspects overseas for extended periods without judicial oversight.

In a unanimous 26-page ruling, a panel of the United States Court of Appeals for the District of Columbia ruled that detainees who were captured outside of Afghanistan and brought to a military prison at the Bagram air base have no right to a hearing in which a judge would review the evidence against them and could potentially order their release.

Such habeas corpus rights do “not extend to aliens held in executive detention in the Afghan theater of war,” wrote David B. Sentelle, the chief judge of the appeals court, who was appointed by former President Ronald Reagan. His opinion was joined by Judges Harry T. Edwards, a Carter appointee, and David S. Tatel, a Clinton appointee.

Judge John Bates had ruled the opposite at the district court level, although he acknowledged the “extraordinary circumstances” of the case in granting a stay during the Department of Justice appeal.  The ruling means that the status quo will remain in place, and that the trio involved in the ruling will remain under full military control, at least until the Supreme Court reviews the case.  In that sense, it reverses the findings of Boumediene, which argued that any territory controlled by the US had to come under the jurisdiction of the federal courts, and that constitutional protections had to be in force.

That may give the Obama administration an opening to keep sending detainees at military bases around the world rather than Gitmo, but it’s difficult to see how the Supreme Court will endorse that idea.  The status of Guantanamo Bay’s military base isn’t that different from Bagram, after all, and other military installations where detainees may be held are even less different in terms of jurisdiction.  If they uphold this ruling, Congress would have some justification in wondering whether Boumediene was an aberration, or whether the Court wants to play narrow, technical games to get rid of Gitmo while leaving in place the infrastructure for another Gitmo farther from our shores.

In related news, Illinois Governor Pat Quinn told reporters today that the idea of opening a terrorist detention center in Thomson to replace Gitmo is effectively dead:

Gov. Quinn affirmed today that, given the mood of Congress, the planned transfer of prisoners from Guantanamo Bay to Thomson Correctional Center is “not going to happen”.

Quinn’s comments follow on reports that the House Armed Services Committee has unanimously approved legislation that would prohibit creating a detention center inside the United States.

Quinn, speaking to reporters after signing an adoption records bill in Chicago Friday, said that “it’s less likely” that Gitmo detainees are coming to Thomson, but argued nevertheless that “separate and distinct there’s a need for a federal prison.”

It looks like both Democrats and Republicans are adamant about keeping detainees outside of the US, which is a welcome development.

Update: The appellate court relied on Bagram’s presence in a theater of war as a distinction between Bagram and Gitmo.  However, in a global war on terror, that’s at least an arguably irrelevant distinction (in either direction, really), especially since the nature of the detainees are identical.  They’re all people captured outside of American jurisdiction by either military or intelligence personnel, conducting war against the US.  Many of the Gitmo detainees were captured from Afghanistan, for that matter.  If the US transfers them back to Bagram, then this reasoning would state that they lose their constitutional protections strictly on the basis of changing locations from one point outside of American civil jurisdiction to another.


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His opinion was joined by Judges Harry T. Edwards, a Carter appointee, and David S. Tatel, a Clinton appointee.

That bodes well for a 5-4 SCOTUS ruling in the same vein.

The status of Guantanamo Bay’s military base isn’t that different from Bagram, after all, and other military installations where detainees may be held are even less different in terms of jurisdiction.

Except that Guantamo Bay isn’t in a theater of war.

amerpundit on May 21, 2010 at 2:59 PM

which is a welcome development.

It seems they are learning… what a concept.

upinak on May 21, 2010 at 3:03 PM

Note the specific wording of the appellate court’s decision:

not extend to aliens held in executive detention in the Afghan theater of war

amerpundit on May 21, 2010 at 3:04 PM

*phew*

I guess there are still some adults in the US government after all.

itzWicks on May 21, 2010 at 3:04 PM

It seems they are learning… what a concept.

They aren’t “learning”…they just know when to cut bait so they can focus on others areas of destroying the USA

Flyboy on May 21, 2010 at 3:05 PM

It looks like both Democrats and Republicans are adamant about keeping detainees outside of the US, which is a welcome development.

Amazing how reasonable and America loving the Socialists become just before an election!

Just remember THEY LIE!

dhunter on May 21, 2010 at 3:05 PM

it’s boumediene.

sesquipedalian on May 21, 2010 at 3:06 PM

Flyboy on May 21, 2010 at 3:05 PM

Forgot the sarc tag. Interesting how that works for most.. isn’t it.

upinak on May 21, 2010 at 3:06 PM

For once we don’t get this headline: Casualties Mount as Federal Judges Assume Command of Anti-Terrorism Policies Under “Operation Judicial Overlord” http://optoons.blogspot.com/2009/10/casualties-mount-as-federal-judges_29.html

Mervis Winter on May 21, 2010 at 3:08 PM

You know who’s not happy? Glenn Greenwald. He starts off by calling Obama a hypocrite.

amerpundit on May 21, 2010 at 3:08 PM

it’s boumediene.

sesquipedalian on May 21, 2010 at 3:06 PM

Thanks, will fix.

Ed Morrissey on May 21, 2010 at 3:09 PM

Greenwald:

Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

That will be the distinction. War zones.

amerpundit on May 21, 2010 at 3:11 PM

MORE:

One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General’s office that argued the administration’s position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed.

amerpundit on May 21, 2010 at 3:13 PM

I’m glad we’re wasting millions of dollars litigating crap like this.

During WWII scum like this were interrogated then summarily executed but then that was a war we cared about winning instead of not hurting people’s feelings.

NoDonkey on May 21, 2010 at 3:19 PM

won’t the libs be freakin’ out over this? i can’t recall, was the bagram detainee facility started by w or dear leader?

cmsinaz on May 21, 2010 at 3:25 PM

We could send them to Berkeley, Cambridge or San Francisco. LA might want them too if they had Spanish surnames.

IlikedAUH2O on May 21, 2010 at 3:38 PM

amerpundit on May 21, 2010 at 3:11 PM
—–
I fail to see the problem in packing Gitmo up and shipping it to Bagram if that’s the way the court splits the hairs…

Or, better, Martha’s Vineyard.

Mew

acat on May 21, 2010 at 3:38 PM

acat on May 21, 2010 at 3:38 PM

Just as long as the suicide bomber’s flying body parts don’t obscure the Kennedy’s view of the Cape, it’s OK.

NoDonkey on May 21, 2010 at 3:49 PM

As glad as I am for the result, the hairsplitting is ludicrious. Gitmo is overseas and (as you point out) in a global war, everywhere is in theater. However, I am not surprised due to

1) who is POTUS (not a Repub)
2) no expectation for libs to be logical (or rational)

IrishEyes on May 21, 2010 at 4:19 PM

All based on the inherently un-Constitutional, and even anti-Consitutional over-reach by the SCOTUS in that Boumediene decision- whereby the Supremes gave themselves the power to declare a war OVER.

Which only Congress can do.

Their flawed first decision undermines all further extrapolations off that incredibly-telling mistake.

Whether the U.S. is at war or “under invasion” can not be ruled on by the SCOTUS.

Giving Boumedience habeas corpus rights, in effect, declared that the war was over.

And that, thereby, the SCOTUS has jurisduction, again, in such a war-making terrorist’s case as B.

They DID NOT have the power.

The Constitution vested it in the Congress, not the Judicial Branch.

And then the Congress- failing to notice this strange new Judicial Branch power to end war- went along with this folly, compounding the cluster-fark.

(Jeff Daniels can ply the DUMB Supreme Court and Jim Carrey can play the DUMBER Congress.)

profitsbeard on May 21, 2010 at 4:22 PM