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> Glenn Greenwald - salon.com - Friday, May 21, 2010 13:22 ET Obama wins the > right to detain people with no habeas review > < > http://www.salon.com/news/opinion/glenn_greenwald/2010/05/21/bagram/index.html > > > > ** > > 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*<http://www.law.cornell.edu/supct/html/06-1195.ZS.html>, > 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<http://www.mcclatchydc.com/2010/05/14/94155/russian-dancer-detained-at-guantanamo.html>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<http://www.nytimes.com/2009/02/22/washington/22bagram.html?_r=1&scp=2&sq=bagram&st=cse>, > 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 <http://www.ipsnews.net/news.asp?idnews=46385> to > detainees picked up outside of Afghanistan and then shipped to Bagram. > I reviewed that ruling > here<http://www.salon.com/news/opinion/glenn_greenwald/2009/04/11/bagram>, > 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<http://www.nytimes.com/2009/04/11/world/asia/11bagram.html?_r=3&partner=rss&emc=rsshttp://www.nytimes.com/2009/04/11/world/asia/11bagram.html?_r=1&partner=rss&emc=rss>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<http://pacer.cadc.uscourts.gov/common/opinions/201005/09-5265-1245894.pdf>, > 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<http://hotair.com/archives/2008/06/13/mccain-on-boumediene-decision-one-of-the-worst/>"one > of the worst decisions in the history of this country." But Obama > hailed > it<http://my.barackobama.com/page/community/post/samgrahamfelsen/gG5Gz5>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<http://obamaspeeches.com/091-Floor-Statement-on-the-Habeas-Corpus-Amendment-Obama-Speech.htm>, > 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? > > > ________________________________________________ Send list submissions to: [email protected] Set your options at: http://lists.econ.utah.edu/mailman/options/marxism/archive%40mail-archive.com
