Editorial -- From the Bush Administration, More Overreaching on Detainees

Wednesday, January 7, 2009

EVEN IN its waning days and despite several rebukes by the Supreme Court, the Bush administration continues to espouse extreme theories about the detention of terrorism suspects. The most recent example involves detainees at the Bagram air base in Afghanistan, including Haji Wazir, an Afghan businessman. Mr. Wazir was captured in Karachi, Pakistan, and has been held at Bagram without charge for more than six years. He has challenged his detention in a habeas corpus filing in U.S. District Court for the District of Columbia, where Judge John D. Bates is to hear the matter today. The administration's response: Mr. Wazir's case should be thrown out because federal judges have no power to review the administration's decisions to detain non-U.S. citizens overseas. The administration further argues that it may unilaterally hold Mr. Wazir and other Bagram detainees indefinitely, even though they enjoy fewer legal protections than those available under the shoddy and discredited military tribunals at the U.S. Naval Base in Guantanamo Bay, Cuba.

In a conventional war, where hostilities are formally declared and suspended and combatants are easily identified by the uniforms of their countries, federal judges have rightly been loath to interfere with the battlefield decisions of the executive. But the indefinite nature of the war against terrorism and the ease with which combatants can blend in with civilian populations means that the executive requires more flexibility in fighting the enemy and more checks and balances to ensure that innocents are not wrongly swept up. After all, it is also in the nation's interest to make sure that it detains only those who would do it harm.

Even if the administration is correct to challenge federal court oversight -- and that is a big if, given that the Supreme Court has blessed judicial review of Guantanamo detentions -- it has no justification to deny Mr. Wazir and the other detainees the opportunity to meaningfully challenge his detention through internationally recognized legal avenues and through a more robust process than exists at Bagram. By refusing even these basic accommodations, the Bush administration once again is embracing a hard line that is neither warranted nor productive. And it is all but inviting the kind of judicial intervention that it has long sought to avoid and that could leave the next administration less able to adapt to the new war footing.

This regrettable situation could and should be made moot by President-elect Barack Obama. Upon taking office, Mr. Obama should order that Mr. Wazir and the others at Bagram be afforded their rights under the Geneva Conventions and be given a meaningful chance to challenge their detentions. After six years, Mr. Wazir and the others are entitled to no less.

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