Obama stays the course on Bagram detainees

[DonP]

Source: Blog of Legal Times

Obama Stays the Course on Bagram

The Justice Department today said it would adhere to the Bush administration's position that detainees imprisoned at a U.S. Air Base in Afghanistan have no right to challenge their confinement in U.S. courts.

<snip>

Acting Assistant Attorney General Michael Hertz filed the government's response today. "This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position."

The approximately 600 prisoners in the hardscrabble Bagram prison are being held there indefinitely and without charge. The prison is closed to journalists and human rights activists, and while it has long been dubbed "the other Guantánamo," Bagram detainees lack the same privileges, such as regular access to lawyers.

<snip>

Read more: http://legaltimes.typepad.com/blt/2009/02/obama-stays-t...

---

No Habeas for Bagram detainees. I'm assuming that this is a temporary situation.

[EFerrari]

1. Why should the Obama review take six months?

"President Obama has ordered a task force led by the attorney general and the defense secretary to review overall policy on detainees. A report is due in six months. A Justice Department spokesman declined to speculate on whether the government's position may change following the review."

That's just unacceptable. Six months?

[scytherius]

2. Well, they don't as long as we follow the Geneva Convention.

That was the problem with the Bush Admin. It followed no law whatsoever.

[MasonJar]

3. This is change we can believe in?

[salib]

4. I can understand the 6 months for a complete review

Unfortunately, timing is bad here and I believe that the Attorney General should do the right thing here and say that the Government's position will change. Lack of habeus corpus is simply wrong in all situations except those where there is not sufficient time or resources (i.e., the battlefield). Anywhere there is enough time for the legal system to make the request and for the Government to then respond, there is enough time and resources for habeus corpus.

We need an Attorney General with more moral fiber, apparently.

Again, I am disappointed.

Again, it means we need to work harder as citizens to ensure that out Government does what is right.

[Metta]

5. Happy karma, B.O. This move is spiritually unprofitable. You should know better.

Who tf are you taking care of with this move? You're continuing to define us as selectively above the law.

[ixion]

6. Pathetic. Restore the Rule of Law now.

this is not the way we show the world we're trying to change.

[ProgressIn2008]

7. This is bullshit and it's hypocrisy of the criminal kind not to say this is as bad as George Bush.

[Enrique]

8. Obama will have to explain this

somebody will read this quote back to him and ask how he reconciles it with his decision...

http://www.nytimes.com/2008/06/13/us/politics/13candida...

Mr. Obama issued a statement calling the decision “a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo” that he said was “yet another failed policy supported by John McCain.”

“This is an important step,” he said of the ruling, “toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.”

[dipsydoodle]

9. BBC News link

Detainees being held at Bagram Air Base in Afghanistan cannot use US courts to challenge their detention, the US says.

The justice department ruled that some 600 so-called enemy combatants at Bagram have no constitutional rights.

Most have been arrested in Afghanistan on suspicion of waging a terrorist war against the US.

The move has disappointed human rights lawyers who had hoped the Obama administration would take a different line to that of George W Bush.

http://news.bbc.co.uk/1/hi/world/south_asia/7903005.stm

[humbled_opinion]

10. Obama administration keeps Bush view on Afghanistan detainees

Source: CNN

WASHINGTON (CNN) -- The Obama administration told a federal court late Friday it will maintain the Bush administration's position that battlefield detainees held without charges by the United States in Afghanistan are not entitled to constitutional rights to challenge their detention.

"Having considered the matter, the government adheres to its previously articulated position," said a Justice Department document filed in federal court in Washington.

In a controversial 5-4 vote, the Supreme Court last year ruled that detainees held at the U.S. naval base at Guantanamo Bay had a right under the constitution to challenge their continued detention. However, the court did not say whether it applied to prisoners in other locations abroad, including Afghanistan.

Five prisoners held at Bagram Air Base, backed by human rights groups, have gone to court to claim the same rights as the men detained in Guantanamo Bay.



Read more: http://www.cnn.com/2009/WORLD/asiapcf/02/20/afghan.deta...

---

I expected more. Why is it so hard to allow these people their day in court? Warlords have been known to hand over average citizens and claim they are Taliban or Al-Qaida to reap the rewards and to punish the peasants. How come we can't err on the side of Humanity? Is it that important to oppress them?

[elocs]

11. Any consideration that we might not know all there is to be known

and that Obama knows something we don't? Even the smallest consideration?

[humbled_opinion]

12. Ewww

You just made my skin crawl as you tried to justify this action....

[elocs]

15. That answers my question. There are those at DU who really believe they know everything.

Everything. Let that crawl up your skin.

[humbled_opinion]

19. I never claimed that

However, the SCOTUS said Bush was wrong about this issue. America said Bush was wrong so Why would Obama continue it. I will not be blindly led, you too should question the motives. If there is strong reason to deny detainees their day in court we should debate that.

[elocs]

22. You also never answered my question that could there be any chance

that Obama knows something we don't. He is not a trained pet who is required to jump through our hoops and do everything just as we like and exactly when we demand it to be done. If you are going to question Obama's motives on this then you must question them on every single thing that comes along. I think I'll trust Obama over anonymous DUers. Rome wasn't built in a day and Obama cannot correct everything in a month although Republicans think he should, otherwise he is a failure.

[Vattel]

25. SCOTUS never said that Bush was wrong

in not according constitutional rights to alien enemy combatants.

[BeGoodDoGood]

27. I think the SCOTUS did.......

slap down the Bush Admin on that very thing, in Hamdan v Rumsfeld.

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.

http://www.law.cornell.edu/supct/html/05-184.ZS.html

Walt

[MNBrewer]

39. Oh dear. There's the "Obama is so much smarter than us mere mortals" meme

[burrowowl]

13. Damn it!

He was also chicken-livered when he didn't answer Helen Thomas, we all know Israel has nukes, why couldn't Obama say so? Is Israel that powerful?

[humbled_opinion]

16. Well

That response to Helen Thomas didn't bother me too much but when I read this and having recently rewatched TAXI FROM THE DARK SIDE, I think it is terribily important to err on the side of Human dignity.

Why can't we allow the accused suspects their day in court?

IMO this is a grave error on the part of the Obama Admin...

Look he can close Gitmo that is a great effort but 9 out of 10 of those detainees are going to go to a Prison maintained by the U.S. in Afghanistan so in reality he just moves the problem.

We need to rethink the entire Issue that is the Change I wanted.

[burrowowl]

45. Is Israel that powerful?

Go Helen and is Obama chicken-livered? So far it looks like he is!

[salguine]

14. Why indeed, You know what? I'm just gonna say it.

If this is the stance Obama is going to take on an issue of such basic humanity, then fuck him. What is WRONG with him!? FUCK him.

[Prisoner_Number_Six]

17. I KNEW we shoulda given it to McCain.

...well, not really, but Mr. Bipartisan is REALLY starting to honk me off on a lot of things...

[earcandle]

26. Not to McCain,but to Kucinich!

[SpartanDem]

18. If they were actually captured in battle

wouldn't that effectively make them POW's? German and Japanese POW's didn't get trials, they were held until the war ended. I think if they were actually captured in battle, I may wrong, that it's legal to hold them indefinitely.

[humbled_opinion]

20. The Problem

Some are battlefield combatants and some aren't. Watch Taxi to the dark side and you will get a different feel for the issue.

[ixion]

21. very sad... fascism marches on...

[scytherius]

23. Well let's not get too upset

WWII POWs didn't get Constitutional protection and shouldn't have. Neither should these prisoners as they are NOT Americans. That is why we have treaties like the Geneva Convention. Bush decided he didn't need to follow it. If we now follow it, that makes us human beings again.

[Vattel]

24. Everyone, find your center and breathe.

Captured enemy combatants who are not American citizens have never been accorded the constitutional rights of an American citizen. They have rights under the laws of war including rights specified in the Third Geneva Convention. If Obama chooses to deny captured Taliban fighters those rights, that will be something to talk about.

[EFerrari]

28. Except we know there has been torture and even murder at Bagram.

Breathing is fine but continuing to monitor our government's behavior is a good idea. Obama is not personally monitoring the prisons.

[proud2BlibKansan]

30. That's the exact same argument we hear from those defending Gittmo

And my response to you is the same as I have responded to them. THESE ARE HUMAN BEINGS. It really shouldn't matter what country they are from.

[Enrique]

34. yes they were, last year, by the Supreme Court

Gitmo detainees were given back their habeas corpus rights.

[proud2BlibKansan]

29. Not good

Not good at all.

[Piewhacket]

31. This is confusing...

It is old and well established that prisoners taken on the battlefield who are
!!determined !! to be enemy combatants may be held until the cessation
of hostilities...

no one seems to dispute that some determination should be made, nor is there
much quarrel that a commander engaged in battle does not have to
immediately divert his attention away from the butchery to sort things out.
he can get round to it later, and it seems proper to have some kind of "military
court" take care of sorting out who is an enemy combatant, and who is the
child accidentally caught up in a sweep. (assuming the commander wins the
battle, of course)

All this seem ordinary, and a full blown civilian type "due process" is
probably overkill, since the detention is not "punishment" merely precaution
and immobilizing an opposing force.

Of course the HUMANE TREATMENT of prisoner goes entirely without saying, that is,
it is FUCKING REQUIRED and failure to do that is a F*CKIN WAR CRIME, as we all know.
As to "interrogation", that is permitted also within the geneva accords, which prohibit
many things including TORTURE, and you gotta be a F*king psychotic idiot and a stupid
f*king moron not to know that, as we all know.

yet this precident of battlefield detention arosed from necessity and from a reality
in which war could not be maintained indefinately... so men would not be held indefinitely
becuase nations quickly exhaust themselves and eventually someone wins. Alas, when you have a
"war on terror" that never ends, one may need to call this old precident into question,
at least eventually.

Indeed, it is perhaps the very idea of a "war on terror" that might need to be questioned.
Is it really a war just because you call it one? Is it an unconventional war in which the
usual rules must be reexamined to assure that our humanity is not its greatest casualty?

So turning back to the idea of Habeas Corpus, the central issue here. Do such prisoners
have any rights to protest their detention? What if a determinatin is not made, or is
unfairly made, what if the prisoner is mistreated, tortured, not fed. To whom does the
prisoner protest? to the jailor??

So now it clarifies a bit... do the prisoners have some right to protest their treatment
at the hands of the jailor? In our society? Ahhhh... I see it now. Of course they do!
What insanity is it that says different? So there we have it.

Then what the heck is Obama's justice department arguing here? I suddenly realize that
if they are sane they can't be arguing what the article says. Obama is not insane.
My god, a paradox!! But wait... wait... Well F&*^% damn,
MAYBE THE ARTICLE IS SOMEHOW NOT ON THE UP AND UP.

Well now that would make a lot more sense.

[earcandle]

32. hmmm..... I had to read that over again,

but you might be on to something.

Media that Matters stay on top of these things you know.

[Piewhacket]

33. yeah, I took the long road (for sure)...

but these are complicated ideas and such are ripe for
propaganda because they can be used to play on ignorance.

"Obama validates Bush Policies!" Think about it. Where have you
heard that kind of spin-meistering. Eh? Just saying it bears
looking closely. Maybe what Obama is arguing is very conventional,
but sin doctored into something it isn't.

Still you just can't jam these complex ideas at people, you have
to sneak up on them from behind... quietly... at night, then
you can more easily cudgel them into compliance.. heh heh.
Just sayin.

anyway.. I was a might confused myself, and thought a
long walk would help sort it out.

[chill_wind]

37. Just google up Obama Bush Bagram.

Here's a couple to get you started already.

http://www.democraticunderground.com/discuss/duboard.ph...

http://washingtonindependent.com/30918/obama-justice-de...

http://news.yahoo.com/s/ap/20090221/ap_on_go_ca_st_pe/t...

http://www.reuters.com/article/topNews/idUSTRE51K0MF200...

[Piewhacket]

38. Thanks. They seem to be much the same story...

It is very troubling. Trying to penetrate an argument now apparently
endorsed by Obama. I see no serious distinction between these prisoners and Gitmo.
Battlefield detention only takes you so far. At some point the emergency military
jurisdiction ends and some manner of LAW must begin.

But at what point? And what law? Those are questions. How do we answer these?
Who answers them? In the eyes of the world and America hasn't it simply
gone too f*cking far already? Isn't it really TIME FOR LAW!

The court is considering the matter, but I see the same result as in Hamdan which
made CRYSTAL clear there is jurisdiction for the court to review the application
of law to prisoners of the US.

The Govmt Letter was somewhat terse, and sent shock waves around the world, but it is
still not easy to unravel what it means...

===
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GOVERNMENT’S RESPONSE TO THIS COURT’S ORDER OF JANUARY 22, 2009

This Court’s Order of January 22, 2009 invited the Government to inform the Court by
February 20, 2009, whether it intends to refine its position on whether the Court has
jurisdiction over habeas petitions filed by detainees held at the United States military
base in Bagram, Afghanistan.

Having considered the matter, the Government adheres to its previously articulated position.

Dated: February 20, 2009
Respectfully submitted,
MICHAEL F. HERTZ
Acting Assistant Attorney General

============

In the reuters article was this
http://www.reuters.com/article/topNews/idUSTRE51K0MF200...

Barbara Olshansky, lead counsel for three of the four detainees and a visiting
professor at Stanford Law School, said she was deeply disappointed that the Obama administration
had decided to "adhere to a position that has contributed to making our country a pariah around
the world for its flagrant disregard of people's human rights."

She said she hoped that the Obama administration was merely signaling it was still working
on its position regarding the detainee issue.

So there is a view from the prisoner vantage. We can hope that review by US continues, that misguided
laws will eventually be revised, policies repaired, and the process of fixing this very bad mess will
continue. As to the prisoners, while this is sorted out there should be no doubt they must be treated
humanely and in accord with the Geneva conventions or better. They are entitle to that, and the government is
damn well charged with seeing to it, whatever they may argue in court.

[chill_wind]

43. The last sentence sounds like this will be key: (Reuters)

"Now that the government has responded, the federal judge is expected to rule in coming weeks on whether his court has jurisdiction to hear the cases."

Thank you for taking time to look at other sources, and your thoughtful response.

[No Elephants]

36. Per John Edwards, in May, 2007: "It is now clear that George Bush's misnamed

'War on Terror' has backfired — and is now part of the problem," Edwards told the Council of Foreign Relations in New York. "The War on Terror is a slogan designed only for politics, not a strategy to make America safe. It's a bumper sticker, not a plan."

The "war on terror" is NOT an actual war, any more than the War on Drugs was an actual war. Or the War on Cancer. Or the War on Crime. Or the War on Illiteracy.

However, the name "War on Terror," coming on the heels of an attack on the U.S. by terrorists, was confusing enough to have given the impression that the WOT is a real war, with all the CIC powers, etc. that would obtain in an actual war. I don't think the confusion was unintended by Bushco, or unwelcome, or unexploited.

The War on Terror has no beginning and no end. It is whatever the Executive Branch says it is. Hail to the Chief.

Btw, even as a slogan or a bumper sticker, the term "War on Terror" stinks. We are supposedly trying to eliminate "terrorists" and/or "terrorism," not "terror," as in "fear" So, to everything else they've corrupted, add the English language.

[Mari333]

35. The United States takes the Low Road again. nt

[Clear Blue Sky]

41. Meet the new boss, same as the old boss...nt

[OKNancy]

40. kick

[MISSDem]

42. I am so disappointed in this.

Why can't we just get out of the business of war and locking people up. It solves nothing.

[Solly Mack]

44. Noted