Obama wins the right to detain people with no habeas review

Reuters/Jonathon Burch

A detainee holding cell is pictured at the detention centre at the U.S. Bagram Air Base, north of Kabul.

(updated below - Update II)

Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world -- far away from
any battlefield -- and then detaining them at Guantanamo with no legal
rights of any kind, not even the most minimal right to a habeas review
in a federal court. Back in the day, this was called "Bush's legal
black hole." In 2006, Congress codified that policy by enacting the
Military Commissions Act, but in 2008, the Supreme Court, in Boumediene
v. Bush, ruled that provision unconstitutional, holding
that the Constitution grants habeas corpus rights even to foreign
nationals held at Guantanamo. Since then, detainees have won
35 out of 48 habeas hearings brought pursuant to Boumediene,
on the ground that there was insufficient evidence to justify their
detention.

Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram -- including even those detained outside of Afghanistan but then flown to
Afghanistan to be imprisoned. Amazingly, the Bush DOJ -- in a lawsuit
brought by Bagram detainees seeking habeas review of their detention --
contended that if they abduct someone and ship them to Guantanamo, then
that person (under Boumediene) has the right to a habeas
hearing, but if they instead ship them to Bagram, then the detainee has
no rights of any kind. In other words, the detainee's Constitutional
rights depends on where the Government decides to drop them off to be
encaged. One of the first acts undertaken by the Obama DOJ that
actually shocked civil libertarians was when, last February, as The New
York Times put it, Obama lawyers "told a federal judge 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."

But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held that Boumediene applies to detainees picked up outside of
Afghanistan and then shipped to Bagram. I reviewed that ruling here,
in which Judge Bates explained that the Bagram detainees are "virtually
identical to the detainees in Boumediene," and that the
Constitutional issue was exactly the same: namely, "the
concern that the President could move detainees physically beyond the
reach of the Constitution and detain them indefinitely."

But the Obama administration was undeterred by this loss. They quickly appealed Judge Bates' ruling. As the NYT put it about that appeal: "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." 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).

So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any
kind. When the Boumediene decision was issued in the middle of
the 2008 presidential campaign, John
McCain called it "one of the worst decisions in the history of this
country." But Obama
hailed it as "a rejection of the Bush Administration's attempt to create
a legal black hole at Guantanamo," and he praised the Court
for "rejecting a false choice between fighting terrorism and
respecting habeas corpus." Even worse, when Obama went to the
Senate floor in September, 2006, to speak
against the habeas-denying provisions of the Military Commiss...,
this is what he melodramatically intoned:

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. . . .

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.

Can you smell the hypocrisy? How could anyone miss its pungent, suffocating odor? Apparently, what Obama called "a legal black hole at Guantanamo" is a heinous injustice, but "a legal black hole at Bagram"
is the Embodiment of Hope. And evidently, Obama would only feel
"terror" if his child were abducted and taken to Guantanamoand
imprisoned "without even getting one chance to ask why and prove their
innocence." But if the very same child were instead taken to Bagram and
treated exactly the same way, that would be called Justice -- or, to
use his jargon, Pragmatism. And what kind of person hails a
Supreme Court decision as "protecting our core values" -- as Obama said
of Boumediene -- only to then turn around and make a complete
mockery of that ruling by insisting that the Cherished, Sacred Rights it
recognized are purely a function of where the President orders a
detainee-carrying military plane to land?

Independently, what happened to Obama's eloquent insistence that "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"? How does
our policy of invading Afghanistan and then putting people at Bagram
with no charges of any kind dispose people in that country, and the
broader Muslim world, to the United States? If a country invaded the
U.S. and set up prisons where Americans from around the world where
detained indefinitely and denied all rights to have their detention
reviewed, how would it dispose you to the country which was doing that?

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. More broadly, though, if Kagan were as
sympathetic to Obama's executive power claims as her colleagues in the
Obama administration are, then her confirmation could easily convert
decisions on these types of questions from a 5-4 victory (which is what Boumediene
was, with Stevens in the majority) into a 5-4 defeat. Maybe we should
try to find out what her views are before putting her on that Court for
the next 40 years?

This is what Barack Obama has done to the habeas clause of the Constitution: if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantanamo, then
you have the right to have a federal court determine if there is
sufficient evidence to hold you. If, however, President Obama orders
that you be taken to from Thailand to Bagram rather than to Guantanamo,
then you will have no rights of any kind, and he can order you detained
there indefinitely without any right to a habeas review. That type of
change is so very inspiring -- almost an exact replica of his vow to
close Guantanamo . . . all in order to move its core attributes
(including indefinite detention) a few thousand miles North to Thompson,
Illinois.

Real estate agents have long emphasized "location, location, location" as the all-determining market factor. Before we elected this Constitutional Scholar as Commander-in-Chief, who knew that this
platitude also shaped our entire Constitution?

UPDATE: Law Professor Steve Vladeck has more on the ruling, including "the perverse incentive that today's decision supports," as predicted by Justice Scalia in his Boumediene
dissent: namely, that a President attempting to deny Constitutional
rights to detainees can simply transfer them to a "war zone" instead of
to Guantanamo and then claim that courts cannot interfere in the
detention. Barack Obama quickly adopted that tactic for rendering the
rights in Boumediene moot -- the same rights which,
less than two years ago, he was praising the Supreme Court for
safeguarding and lambasting the Bush administration for denying.
Vladeck also explains why the appellate court's caveat -- that overt
government manipulation to evade habeas rights (i.e., shipping
them to a war zone with the specific intent of avoiding Boumediene)
might alter the calculus -- is rather meaningless.