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Bagram Detainee Case Likely Headed to the High Court

By / 5.27.2010

In 2008, the Supreme Court decided that detainees held at Guantanamo Bay had the constitutional right to challenge the legality of their detention. Thus ended the question of whether all detainees in the fight against terrorism had a right to habeas corpus, right? As with all complex legal questions, the answer is never that simple.

The federal Circuit Court of Appeals for the District of Columbia added to the complexity of the habeas corpus issue when it ruled last Friday on a case filed by three detainees being held at Bagram Air Base in Afghanistan. Bagram is not only the largest American military base in Afghanistan, it also serves as a major detention center for those taken prisoner there, and allegedly holds some prisoners captured in other countries as well. In an opinion by Chief Judge David Sentelle, a Reagan appointee, the court found that the constitutional right of habeas corpus does not extend to detainees being held at the base.

The court made three central determinations in its decision. First, it found that the current procedure used at Bagram to deal with the detainees is even worse than the procedure that was used at Gitmo, which the Supreme Court found to be unconstitutional. The procedures at Gitmo, referred to as Combatant Status Review Tribunals (CSRTs), did not allow detainees access to an attorney and severely restricted a detainee’s right to present evidence on his behalf or rebut evidence by the government. The court in this case found that the procedures at Bagram, called Unlawful Enemy Combatant Review Boards (UECRBs), were even less sufficient than the CSRTs, and found that this factor initially favored giving Bagram detainees habeas corpus.

But despite that finding, the court found that two other factors weighed against granting the right. It concluded that Bagram is in fact different from Gitmo because the U.S. does not intend Bagram to be a permanent base similar to Gitmo, which has been operating for over a hundred years. More importantly, it found that giving Bagram detainees the right to habeas corpus could adversely affect the military’s ability to carry out operations in Afghanistan.

It is true that giving the detainees at Bagram the right to habeas corpus could cause a host of problems. It would require giving the detainees access to attorneys, and creating that system could eat up badly needed military assets. Also, Bagram detainees whose detentions were invalidated would most likely be released inside Afghanistan. This could put enemy fighters directly back on to the battlefield.

However, as the D.C. Court of Appeals admits, the fact still remains that the Bagram detainees are being held without constitutionally sufficient procedures available to them. If the U.S. is going to operate a prison where habeas corpus does not apply, what is to stop it from shipping all future terrorist detainees to Bagram to avoid giving them the right?

That’s why this case is on a beeline to the Supreme Court. While the Court has disagreed with the D.C. Court of Appeals on detainee cases, it is far from clear how it will come out on this issue. One factor making it hard to predict is that the Court’s makeup will be different from when it decided its last major detainee case with the addition of Justice Sotomayor and – almost certainly – Elena Kagan.

In its last major detainee case, the Court split down ideological lines, with Justice Kennedy writing the opinion and siding with the more liberal justices. It is likely that Justice Sotomayor, as part of the liberal bloc, would vote for extending habeas corpus to the Bagram detainees. Similarly, soon-to-be Justice Kagan would almost certainly be in favor of extending the right to Bagram detainees — in 2005, while dean of Harvard Law School, she joined in a letter with three other law school deans stating that detainees should be allowed access to federal courts for review of procedures such as CSRTs and UECRBs.

That said, neither are very experienced with national security cases, so one can’t say for sure how each will vote. Another factor making it difficult to predict the outcome is the fact that Bagram and Gitmo are situated differently. Both are active military bases, but Bagram is operating in a theater of war. Allowing detainees at Bagram to engage in the habeas corpus process could affect the military’s war effort in Afghanistan, a fact that could sway one or more of the liberal justices to the other side.

The views expressed here do not necessarily reflect those of the Progressive Policy Institute.

Photo Credit: U.S. Army Africa’s Photostream