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Hullabaloo


Sunday, April 12, 2009

 
Pragmatic Princples

by digby

Greenwald is obviously the go-to source analysis pertaining to the Obama administration's approach to the national security civil liberties issues. If you aren't following the story daily you are missing out on some of the most incisive writing out there ---- and also the most disturbing. Today's rundown of the administration's decision to appeal the Bagram decision was so depressing (especially the moving Senate floor speech he excerpts of Obama forcefully arguing against what he is now supporting.)

He writes:

Back in February, the Obama administration shocked many civil libertarians by filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue -- the Obama DOJ argued, as The New York Times's Charlie Savage put it, "that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team." Remember: these are not prisoners captured in Afghanistan on a battlefield. Many of them have nothing to do with Afghanistan and were captured far, far away from that country -- abducted from their homes and workplaces -- and then flown to Bagram to be imprisoned. Indeed, the Bagram detainees in the particular case in which the Obama DOJ filed its brief were Yemenis and Tunisians captured outside of Afghanistan (in Thailand or the UAE, for instance) and then flown to Bagram and locked away there as much as six years without any charges. That is what the Obama DOJ defended, and they argued that those individuals can be imprisoned indefinitely with no rights of any kind -- as long as they are kept in Bagram rather than Guantanamo.

Last month, a federal judge emphatically rejected the Bush/Obama position and held that the rationale of Boudemiene applies every bit as much to Bagram as it does to Guantanamo. Notably, the district judge who so ruled -- John Bates -- is an appointee of George W. Bush, a former Whitewater prosecutor, and a very pro-executive-power judge. In his decision (.pdf), Judge Bates made clear how identical are the constitutional rights of detainees flown to Guantanamo and Bagram and underscored how dangerous is the Bush/Obama claim that the President has the right to abduct people from around the world and imprison them at Bagram with no due process of any kind

[...]

As Judge Bates noted, the prisoners shipped to Bagram actually have even fewer rights than the Guantanamo detainees did prior to Boudemiene, because at least the latter were given a sham Pentagon review (the CSRT tribunal), whereas the U.S. Government -- under both Bush and Obama -- maintain that Bagram prisoners have no rights of any kind.

In the wake of Judge Bates' ruling that foreign detainees shipped to Bagram at least have the right to a hearing to determine their guilt, what is the Obama DOJ doing?


They are appealing.

By now it's clear that the Holder DOJ is going to keep at least some of the legal pillars of the Bush GWOT regime in place, but that's not entirely surprising. All new presidents of either party tend to support the powerful entrenched bureaucracies and rarely give up power once obtained. (Many of us made that point when people reduced the argument to the necessity of electing a Democratic president.) However, it's profoundly disappointing that the administration is actually seizing more executive power in the case of the states' secrets argument and perpetuating a lawless prison regime outside our borders.

Perhaps there is some sophisticated legal strategy involved in Obama DOJ reasserting the Bush administration's policies but it's hard to see where the principled constitutional lines are drawn. And without the constitutional principles it's all just more of the same.

I continue to wonder where Marty Lederman is in all this since he went to the Justice department. There is nobody who was more critical of these same policies during the Bush years and for whom I have more respect. But I wonder if he is using his thorough analyses of the Bush policies to end them?

In the wake of the Boumadiene decision he wrote:

As I noted below, the two most important questions the Court did not answer are:

(i) Would habeas rights extend to alien detainees held in foreign locations other than GTMO (such as Bagram)?

and

(ii) What is the substantive standard for who may be indefinitely detained?


The Court was not, however, completely silent on these questions; it provided hints about how they might be resolved. In this post and the next, I'll try to identify those hints. Please note: I am not suggesting that the Court issued any holdings, or that the hints are determinative of how the Court will ultimately resolve the questions. They're merely tea leaves, albeit very carefully considered tea leaves that government officials, lower court judges, lawyers, and presidential candidates would be advised to parse carefully.

So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No.

But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.

It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."

More broadly, the Court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the Court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."

In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."

Most importantly, the Court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the Court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." The political branches will not be permitted "to govern without legal constraint" or to "have the power to switch the Constitution on or off at will."

NOTE: In general, and as the above discussion should make clear, Justice Kennedy stresses that the question will in each case be determined by a "functional approach" involving multiple factors and, especially, "practical concerns," rather than by any formalist rules.


During the Bush years Lederman's position couldn't have been clearer that detainees such as those who applied for habeas corpus at Bagram clearly were, should be subject to the writ. Read his posts in this fascinating exchange if you doubt me. He even suggested that the Bagram prisoners, who he admits have been held in the absolute worst of conditions, should be sent to Guantanamo where at least they'd have some rights. It's very difficult to believe that he would endorse this appeal.

(If it turns out that Lederman constructed an argument for the administration to appeal to Justice Kennedy on the basis that Bagram detainees can be held indefinitely without any due process because of "practical concerns," vis a vis his analysis above, it will be profoundly distressing. But it's possible.)

There has been a lot of chatter about this George Packer article arguing that Obama is a principled pragmatist who takes whatever path he can find to reach his liberal goals. Perhaps he's right about that and perhaps that's a successful approach to governing. But Obama isn't exactly the first one to do such a thing when it comes to dealing with the congress -- it's the necessary sausage making that all successful presidents employ.

But this will not work on constitutional issues, and certainly not politically. You can't split the baby and argue that because you've promised to close Gitmo and have repudiated "extraordinary" rendition you are being "pragmatic" and offering the other side some of what they want by asserting a right to indefinitely hold innocent people locked up at Bagram. These are not issues on which compromise is possible and being pragmatic in this regard results in incoherence and a diminishment of moral authority.

I know it's hard to navigate this issue. Bush and Cheney booby-trapped the national security issue in dozens of different ways. But they have to do it. If the administration continues to validate this idea that the United States is so "exceptional" that it's exempt from human rights treaties, the Geneva Conventions, and it's own constitution it will be impossible to ever recapture even the (mostly unrealized) ideal of a country of laws and not men.





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