- Analysis: New detention filter at Bagram
- Tuesday Round-up
- U.S.: No habeas rights at Bagram
- Petitions to Watch Conference of September 29, 2009 (Part I)
Posted: 15 Sep 2009 11:49 AM PDT
The Pentagon’s new policy to control who will be detained as a terrorism suspect at the U.S. military prison at Bagram, Afghanistan, is based on a concept of the enemy that has not withstood legal tests in federal habeas courts in the wake of the Supreme Court’s constitutional habeas ruling in Boumediene v. Bush last year. But that is no surprise at all: this is strictly a within-the-military policy, court papers filed Monday made clear. The Pentagon documents that spell out the new policy can be downloaded here.
The policy is simply not designed for the civilian court process for habeas cases and, in fact, it is not meant to be reviewed by any civilian court. The military chain-of-command is its overseer. In a court filing, Obama Administration officials indicated that they will resist any effort at judicial oversight — what it calls “second-guessing” — of decisions made about Bagram detention.
Disclosed to members of Congress in mid-July (but just now released publicly), it is a policy for holding what the Pentagon calls the “unprivileged enemy belligerent” who has been captured on a battlefield — but not necessarily in Afghanistan — and will go at least initially to the prison at Bagram Air Field outside Kabul.
The new definition for such a belligerent, it turns out, is the same definition as the one the Obama Administration has put forth in civilian habeas cases involving Guantanamo Bay detainees — a definition that has been found too sweeping by at least four federal habeas judges.
Detainees at Bagram get more procedural rights than they have had up to now, but those were kept limited precisely because Pentagon officials have found the procedural rights that detainees get in habeas courts to be too burdensome. Administratioon lawyers, referring to what has been occurring in habeas cases for Guantanamo prisoners, described those cases as involving ”intrusive factual development, onerous discovery, and logistical burdens.”
The policy intentionally provides no role for outside lawyers. Comments in the court filing about the role lawyers have played in the Guantanamo cases show some of the reasons the Pentagon does not want lawyers involved with Bagram prisoners. “In 2008,” a footnote in the court brief said, “the military was required to facilitate more than 1,850 visits between counsel and their detainee clients at Guantanamo.” Another footnote says that, since 2007, “a single detainee there has had nearly 20 counsel visits.”
At Bagram, each detainee, when his detention status is reviewed, gets a military officer as his “personal representative,” who is required to “act in the best interests of the detainee.” The officer is guaranteed against harm to his or her career if actions to aid the detainee are carried out in “good faith.” The representative is to help the detainee gather information favorable to him, and even to summon witnesses. But military officers involved in the review process decide whether such information or witnesses are “reasonably available” — a term that is not defined. (In the ongoing habeas cases, government lawyers have sought to have the judges define that phrase quite narrowly.)
The basic compoonents of the new detention policy follow the steps the military has used for decades in deciding which battlefield captives must be held in custody because they represent a continuing threat — that is, the procedures outlined in Army Regulation 190-8.
But the Obama Administration has added to those procedures new steps that were designed, Pentagon officials said, to “enhance the detainee’s ability to challenge his or her detention.” Those include the help of the “personal representative,” access to interpreters, mostly open proceedings before a three-officer review board, a right to sit in on all open sessions, a right to take the stand and testify (without being compelled to do so), to call witnesses, to question government witnesses, an present documents.
The evidence the government puts before the review board will not be presumed to be valid, and thus is subject to some challenge. After an initial detention, based on a decision made by a review board within 60 days after the individual arrives at Bagram, the review boards come back into being every six months for each detainee at Bagram.
The review board, with a majority controlling its votes, can recommend these options: continued detention at Bagram, transfer to Afghan officials for criminal prosecution, transfer to Afghan officials for rehabilitation, unconditional release, or transfer to a third country for prosecution if the detainee is not an Afghan.
The policy does not show any higher-level review of the recommendations of the review board, but once such a board suggests that the individual be detained further, that is reviewed by a legal officer — for “legal sufficiency” only. It is unclear whether that means a review of whether the evidence justified the board’s recommendation, or only that the board followed the proper procedures.
Nothing in the Pentagon documents appears to require that any member of the review board be an attorney, or that the personal representative have any legal training or skills, as the deal with evidence that sometimes has significant legal complications. The review boards are to have a military lawyer, to provide advice on “legal and procedural matters.” It is not clear how wide-ranging that lawyer’s participation would be, however.
The documents on the new procedures provide no apparent guidance on the nature of the evidence that is to be weighed in making the “threat assessments” that would be the basis for deciding to hold a detainee further at Bagram.
It is also unclear what kinds of evidence will be shared with the detainee’s “personal representative” nor does it spell out how much access that officer would have to classified material. Detainees will not be allowed to see classified information.
Posted: 15 Sep 2009 06:55 AM PDT
Richard Hasen keeps the Citizens United conversation going at Slate, commenting on the impact of the Court’s growing trend towards “broad, constitutional holdings” in “How Liberals Can Win By Losing at the Roberts Court.” Citing a recent Seventh Circuit opinion – and the Court’s affirmation of it – in the voter identification case Crawford v. Marion County, Hasen argues that bad losses in election law cases are sometimes best avoided by staying out of the Supreme Court. Likewise, he points out, the impact of losses at the Supreme Court can be mitigated by narrower opinions, rather than sweeping ones. If the Court decides in Citizens United’s favor but on narrow statutory grounds, Hasen anticipates, “there will be a lot of high-fives among supporters of campaign finance reform, from Elena Kagan on down.”
In the same vein, Carl Pope comments on Citizens for Huffington Post, pointing out that Chief Justice Roberts’ efforts to shape himself as an incrementalist have led to expectations that he will encourage a narrow ruling in the case. Pope also offers a unique view of the significance of Alito, Scalia, and Thomas’s views on Citizens United, arguing that if the three justices choose to rule in the organization’s favor, their decisions will represent an “enormous incompatibility” with their purported judicial doctrine of “originalism”; that is, the claim that “that it is not previous Supreme Court precedent that should govern, but instead the intentions and understanding of those who drafted the Constitution (and its amendments).”
Balkinization recaps Jeff Toobin’s recent New Yorker article on Obama’s “post-partisan” approach to judicial nominations (Supreme Court and otherwise), emphasizing Toobin’s treatment of the idea that the Obama administration will shift its focus away from court fights and toward legislative efforts. (In related news, Legal Beat reports that Obama has just nominated Virginia Supreme Court Justice Barbara Milano Keenan for a seat on the 4th Circuit). Balkanization also covers this past Saturday’s Washington Independent article on Senator Jim DeMint’s opinion on the constitutionality of social security and health care reform; Balkin points to the Court’s 1937 decision in Steward Machine Company v. Davis, arguing that DeMint’s stance might be based on the binding precedent of cases like this one.
The AP is reporting that Sandra Day O’Connor criticized the tradition, maintained in about two dozen states, of judicial elections. Arguing that this practice leads to judges hesitant to make unpopular decisions, the former justice advocated for a universally merit-based system of judicial appointments, pointing out that landmark decisions like Brown v. Board of Education might not have been possible had the justices been concerned with the public opinion of their constituents. O’Connor’s comments came during a Seattle conference on the Supreme Court’s recent decision in Caperton v. Massey Coal, in which the Court held that elected judges must step aside in cases in which they had received large campaign contributions from the parties.
In the NYT column “The Local”, Tina Kelley discusses today’s oral arguments in an ongoing Third Circuit case brought in response to a school district policy barring Christmas Carols. According to attorneys for the parent who brought the suit, if the Court of Appeals does not find that a constitutional violation took place, they will petition for cert.
Finally, the BLT covers the ongoing legal battle over the appropriateness of the name “Redskins” as the moniker for Washington’s NFL football franchise, reporting that lawyers for a group of Native Americans filed a cert petition today in Susan Harjo v. Pro-Football, Inc. While the group has petitioned for a name change under the Lanham Act, which bars disparaging trademarks, BLT reports that the case will turn on an interpretation of the doctrine of laches, which “acts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.”
Posted: 15 Sep 2009 07:36 AM PDT
The Obama Administration argued strenuously on Monday that the Supreme Court’s 2008 decision providing a right for imprisoned terrorism suspects to challenge their captivity does not apply to “approximately 600 long-term detainees” now being held by the U.S. military in Afghanistan. “Habeas rights under the United States Constitution,” government lawyers argued in a 64-page legal brief, “do not extend to anemy aliens detained in the active war zone at Bagram Airfield in Afghanistan.”
The new brief can be downloaded here. It was filed in the D.C. Circuit Court, in Maqaleh, et al., v. Gates, et al. (lead case docket 09-5265), seeking to overturn a federal judge’s ruling that the Justices’ ruling in Boumediene v. Bush does apply to at least three prisoners at Bagram. The three are Fadi Al Magaleh and Amin Al Bakri, both Yemenis, and Redha al-Najar, a Tunisian.
The arguments rely primarily upon the government’s interpretation of Boumediene itself, as well as a post-World War II precedent — Johnson v. Eisentrager (1950). The legal contentions are summarized beginning at numbered page 18 of the main document that is linked above. In an Addendum, the Administration provides documents spelling out new procedural arrangements at Bagram for reviewing the continuing detention of the individuals held there.
The Circuit Court is reviewing a decision last April by District Judge John D. Bates opening habeas rights to non-Afghans captured outside of Afghanistan but now held at the Bagram detention facility run by the U.S. military at an airbase 40 miles from Kabul. He found that the Supreme Court’s Boumediene decision, although written to cover only the situation at Guantanamo Bay, outlined principles that would apply to other detention sites where the U.S. has a strong degree of control.
In the new Administration brief, it argued simply that Judge Bates was wrong about Boumediene. That ruling, it contended, was narrow in scope, confined to Guantanamo’s situation. It would be an “unwarranted extension of such a singular precedent,” the brief said, to extend it “from the peaceful locale of Guantanamo to the war-torn zone of Afghanistan….Bagram Airfield is in the middle of an active theater of war…Bagram is fundamentally different from the ‘isolated’ military base at Guantanamo.”
“This is the paradigmatic case,” it added, “in which lower courts should tread cautiously in extending a new and unprecedented Supreme Court decision beyond the specific contextin which it was announced.” The Court in Boumediene “made clear that its decision was dependent on the extraordinary nature of the United States presence in Guantanamo.”
The Administration disputed Judge Bates’ finding that the lack of adequate procedural safeguards for those held at Bagram should be taken into account in determining whether the prisoners there should have habeas rights. The method for judging who must remain confined at Bagram, the brief asserted, has nothing to do with the basic question of whether the constitutional right of habeas should apply there.
But, to the extent that the procedures for deciding on detention at Bagram do make a legal difference, the brief stressed that the government was increasing the legal options for prisoners there to challenge their ongoing confinement. Those new procedures, it added, “address [Judge Bates'] concerns. Those procedures, which it said will go into effect this month after a waiting period for review by Congress, “support, rather than undermine,” the conclusion that the Bagram detainees do not have a constitutional right of habeas.
To bolster its contention that Boumediene should not reach to Bagram, the government filing said that, to do so, would make it possible for individuals held by the U.S. military anywhere in the world to go into U.S. courts to challenge their detention abroad, so long as they were held in a country other than their own.
The brief expresses mild resentment over Judge Bates’ suggestion that the U.S. military may be using the Bagram prison site as a way to put detainees beyond the reach of American civilian courts. “The court’s fears of Executive abuse were not justified,” it said. “When the U.S. Government holds someone for an extended peiod of time at Bagram, it does so of necessity, not because of whim or convenience….The United States has no interest in holding detainees longer than necessary.”
Lawyers for the three non-Afghan detainees involved in the case are to file their merits brief on Oct. 30. The Administration’s reply is due Nov. 16. No date has been set for oral argument in the Circuit Court.
Posted: 15 Sep 2009 08:36 AM PDT
The first edition of “Petitions to Watch” for the October 2009 term features cases up for consideration at the Justices’ opening conference of September 29. Because of the great number of petitions to be considered, we’ll have multiple installations leading up to the “long conference.” As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. Links to previous editions are also available in our archives on SCOTUSwiki.
Docket: 08-1213 ; 08-1345
Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):
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