The U.S. Constitution's Reach at Bagram

Tuesday, April 7, 2009

JUDGE JOHN D. Bates of the U.S. District Court for the District of Columbia dealt a serious blow to the Obama administration last week when he ruled that certain detainees at the Bagram air base in Afghanistan are entitled to federal court review of their cases.

When faced with a negative decision, administrations reflexively appeal to a higher court. The Obama administration should refrain from doing so in this case and focus instead on addressing the injustices that gave rise to the litigation.

Judge Bates's decision addressed a handful of detainees captured outside of Afghanistan and held at Bagram for years. According to court records, only some 30 of the 600 men imprisoned at Bagram fit this description. The distinction is critical, as Judge Bates acknowledged in his April 2 decision: "It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which [lawyers for the government] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries -- far from any Afghan battlefield -- and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects . . . the concern that the Executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely."

In concluding that those rendered to Bagram are constitutionally entitled to habeas corpus review, Judge Bates relied heavily on the 2007 decision by the Supreme Court that gave habeas rights to Guantanamo Bay detainees -- all of whom were captured outside of Cuba before being sent to the U.S. naval base. Those rendered to Bagram, Judge Bates rightly concluded, are in virtually the same legal situation as those at Guantanamo.

The Obama administration, like its predecessor, argued that no one held at Bagram has a right to habeas review; neither administration differentiated between those captured on the battlefield and those caught elsewhere. The administration may not like Judge Bates's decision, but it should abide by this narrowly crafted and careful ruling rather than fight it and prolong these men's detentions for many months more without appropriate review. The administration could forgo an appeal and allow the 30 Bagram detainees immediate access to federal court. It could also consider moving the detainees to Guantanamo, where their right to habeas corpus review would be unquestionable.

Under either approach, the administration should work with Congress to craft rules to provide detainees captured outside war zones with formal and robust legal review in a U.S. court. Those who can be charged in traditional prosecutions should be tried in federal court. Lawmakers should create a special national security court for terrorism suspects who may not be candidates for traditional prosecution; the court should be overseen by federal judges with the power to free those whom the government cannot justify detaining.

© 2009 The Washington Post Company