The new Gitmo?
FOR YEARS, the Bush administration used the U.S. Naval Base in Guantanamo Bay, Cuba, as a way to avoid judicial oversight of its detention of terrorism suspects. Now, there is a very real danger that the Bagram air base in Afghanistan could become the next Guantanamo.
Last month, a unanimous panel of the U.S. Court of Appeals for the District of Columbia concluded that three men -- all of them foreign nationals who were purportedly captured outside Afghanistan and then brought to the military prison at Bagram -- did not have the right to challenge their detentions in federal court. The judges concluded these detainees were in virtually the same situation as those held at Guantanamo, who are entitled to federal court review. But the judges declined to extend this right to them, largely because the air base sits in an active military zone. Federal litigation, the court reasoned, could not only disrupt but also undermine military affairs.
The decision overturned a thoughtful, thorough and narrow lower-court ruling by Judge John D. Bates, who ruled last year that the special circumstances regarding the capture and imprisonment of these Bagram detainees warranted judicial review. The men should appeal the decision to the Supreme Court, which should agree to hear the case.
Federal court review is clearly not appropriate for enemy combatants captured on the battlefield; the Geneva Conventions apply under these circumstances. But as Judge Bates wrote last year, extra protections are needed when individuals are apprehended "in foreign countries -- far from any Afghan battlefield -- and then [brought] to a theater of war, where the Constitution arguably may not reach." This is especially true because of the relatively lax review procedures in place at Bagram.
The appeals court decision left room for a challenge by a future detainee who shows that the government imprisoned him at Bagram to avoid judicial review. The detainees in this case could not prove such evasion because at the time of their capture the Supreme Court had not yet recognized habeas rights for any detainees.
Yet judicial checks -- and clear and fair rules for detentions -- are needed to prevent abuses of all kinds. What, for example, would keep the Obama administration from picking up a foreign national suspected of drug dealing and depositing him at Bagram, beyond the reach of the judiciary?
The appeals court decision is yet more evidence that new rules and laws are needed to govern these types of detainees. The administration should work with legislators to craft sensible and morally defensible detention rules that give the president the needed power to hold terrorism suspects captured away from the battlefield while providing judicial review and robust safeguards against unjustified detention. Having a hand in crafting such a system would be better by far than having to live with a binding decision by the Supreme Court that may not be as nuanced or flexible.