Saturday, April 11, 2009

Interlocutory Appeal in Maqaleh

About a week ago a D.C. District Court ruling extended habeas rights to detainees at Bagram Air Base in Afghanistan as long as the detainees were non-Afghan citizens that were not captured in Afghanistan. Naturally, the Justice Department was not down with that decision so they have filed for an interlocutory appeal (an appeal that comes before a final decision) calling on the D.C. Circuit Court to reverse the district's ruling.

The appeal makes a couple of minor arguments. Among those is the argument that Bagram is not under enough control by the U.S. to confer habeas rights. The other is a somewhat corollary argument that the prisoners at Bagram have never been held at a place that confers habeas rights and therefore the government cannot be accussed of attempting to circumvent the Constitution by transfering the prisoners from one place that has habeas protection to one that doesn't.

The motion's major argument is that allowing detainees at Bagram to have habeas rights will talk away from the military's ability to carry out operations in Afghanistan. The district court's ruling said that the "practical obstacles" in allowing habeas rights at Bagram were not as serious as alleged and therefore could not stop the extension of those rights to the detainees there. The government's motion here argues that the practical obstacles are substantial. I break the argument down into five parts: 1) it affects the military's judgment on where to detain individuals; 2) terrorists will be encouraged to conduct operations from Pakistan because they think the U.S. will be less likely to take prisoners in that country since it will have to be prepared to defend habeas petitions filed by those prisoners; 3) Bagram is in a dangerous theater of war; 4) there will be a flood of habeas petitions from prisoners already at the prison; 5) general logistical and security difficulties inherent in carrying out habeas proceedings at Bagram.

I'm not sure what to make of this situation. Let's face it, Bagram is different than Gitmo. I do believe that Bagram is essentially under as much U.S. control as Gitmo, which was a major factor in the Boumediene ruling so we can go ahead and check that off as a factor favoring habeas at Bagram. I'm not sure what kind of logistical hurdles exist in bringing lawyers in and all the other things that are necessary to carry out habeas at Bagram. Although I don't know what they are I do believe that logistical hurdles can be overcome. The biggest question I have and in my opinion the biggest potential danger is what affect would it have on military operations. A good number of future prisoners at Bagram will probably come from operations carried out in Pakistan. I don't want special forces operators to have to take into account the complexities of habeas litigation when they are carrying out their missions. I think that the legal obligations those guys should be concerned with are the laws of war, and not evidentiary questions that could arise at a habeas hearing at Bagram. Sure sometimes there will be sufficient documentation and other evidence available from military missions to support a hearing, but just as many times there may not be. What if an important apprehension is made during a spur of the moment mission where the only people that really have the evidence to show that the person should be detained are military personnel operating out in the field? Are we going to ask them to come back from the front lines to testify? Are we going to make them sit down and write out some kind of report? I don't want to pile extra burdens on the men out on the front lines. They have enough to deal with already. Again I don't know how habeas proceedings would go at Bagram and what methods we would have to use to effectively carry them out. I believe that constitutional protections such as habeas corpus need to be respected in the relatively new fight against terrorism, but I worry sometimes that our attempt to apply the best and most fair procedures as possible will, in some instances, hamstring us in the actual fight.

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