Appeals court declines to extend Boumediene to Bagram

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.