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Court: Terrorists Held Overseas Not Due Habeas

Posted By Cully Stimson On May 21, 2010 @ 12:59 pm In Legal | Comments Disabled

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The D.C. Circuit Court of Appeals just issued [2] a blockbuster opinion that vindicates both the Bush and Obama administration’s positions regarding whether detainees captured overseas and held in Afghanistan have the constitutional right to challenge their detention via habeas corpus. The appeals court, in a methodical opinion reversing a lower court decision, said no.  The opinion will have wide-ranging implications in the war on terror, and if it holds (i.e. is not taken up by the Supreme Court and overturned), it gives the green light to an administration which has, to date, been reluctant to capture high value detainees outside of Afghanistan.

The case involved three detainees who are being held at the Bagram Theatre Internment Facility on the Bagram Airfield Military Base in Afghanistan. Each detainee claimed that he was captured outside of Afghanistan, and brought to Bagram for detention. The detainees claimed that, pursuant to the holding in a recent Supreme Court case (Boumediene v. Bush [3]), that they had a constitutional right to habeas.

The Bush administration, and subsequently the Obama administration, each asserted that the Boumediene decision was limited only to detainees held in Guantanamo Bay, Cuba.

A district court judge ruled in favor of the three detainees, essentially saying that holding in Boumediene (and applying its three-part test), required him to rule in favor of the detainees. The judge issued this ruling during the Bush administration, which promptly appealed the case to the D.C. Circuit. The Obama administration, to its credit, asserted the same position as the Bush administration—i.e. Boumediene does not provide the detainees constitutional habeas.

In reversing the District Court, the D.C. Circuit first noted that “Afghanistan remains a theatre of active military combat.” The decision points out that, unlike in Guantanamo, Bagram has been subject “to repeated attacks from the Taliban and al Qaeda.” Furthermore, unlike Guantanamo, “numerous other nations have compounds on the base…troops of other nations are present at Bagram both as part of the American-led military coalition in Afghanistan and as members of the International Security Assistance Force (ISAF) of the North Atlantic Treaty Organization.”

The Court traced the history of this type of wartime litigation, explaining in detail the litigation from post World War II that ended up before the Supreme Court, namely Johnson v. Eisentrager [4]. After recounting the holding of that and other pre-9/11 cases, the Court addressed head-on the Supreme Court opinion in Boumediene v. Bush. That opinion from 2008 held that detainees captured abroad and held in Guantanamo Bay have a constitutional right to habeas.

The Court noted the Boumediene decision’s three-part test, and then applied it to the case at hand. The Court held that the detainees prevailed on the first factor, but failed on factors two and three, concluding “that under both Eisentrager and Boumediene, the writ does not extend to the Bagram confinement in an active theatre of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the sovereign territory of another de jure sovereign.”

This decision is a victory for common sense. Never in the history of warfare have aliens captured overseas, during wartime and held outside the United States, been given constitutional rights. That is, until the Boumediene decision, which, for the time being has been cabined to those detainees held in Guantanamo Bay. If the United States had lost this case, it would further limit our ability to capture known terrorists during wartime and detain them.


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URL to article: http://blog.heritage.org/2010/05/21/court-terrorists-held-overseas-not-due-habeas/

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[1] Image: http://www.foundry.org/wp-content/uploads/bagram1.jpg

[2] just issued: http://www.google.com/hostednews/ap/article/ALeqM5iihUOSafLRwaQ8cS-PmWDTc3PKBAD9FRALKO1

[3] Boumediene v. Bush: http://www.law.cornell.edu/supct/html/06-1195.ZS.html

[4] Johnson v. Eisentrager: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=339&invol=763

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