[Peace-discuss] "Obama's extreme hypocrisy - Bagram..."

[C. G. Estabrook]

	Glenn Greenwald
	Friday, May 21, 2010 13:22 ET
	Obama wins the right to detain people with no habeas review
	By Glenn Greenwald

(updated below)

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 Commissions Act, 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 Guantanamo and 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.

http://www.salon.com/news/opinion/glenn_greenwald/2010/05/21/bagram

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