In order to reveal something about the salience of incoherence in today’s world, let’s examine this recent event:
On May 21st, the Appeals Court for the District of Columbia ruled that detainees at Bagram do not have the right to habeas corpus; that is, the right to challenge their detention; that is, the same right that was extended to Guantanamo detainees in two separate Supreme Court rulings, Rasul (2004) and Boumediene (2008). The Bagram decision was based on reasoning that because the prison is located in Afghanistan – a zone of active combat – the precedent in Boumediene, concerning Guantanamo Bay, cannot be applied. Additionally, the Court ruled that while the United States, in maintaining full and complete control over Guantanamo Bay for over a century, was constitutionally required to provide detainees with the right to challenge their detention, the status of Bagram was a different case because the U.S. does not intend to maintain control over Bagram with any “permanence.” At first, the logic of the court, which is grounded in Supreme Court precedent, ‘may’ sound compelling to the reader, but this is where things get sticky…..
In the recently decided case of Bagram detainees, the three men challenging their detention are non-Afghan citizens who were captured outside of Afghanistan and then sent to Bagram. What this means is that these same men would have had the constitutional right to habeas relief if the administration had decided to send them to Guantanamo Bay. While the Court recognized the irony in this situation, their final decision indicates that the irony was not thick enough to compel them to rule in favor of habeas. Accordingly, the fate of Bagram detainees will be determined by where they end up, rather than the actual conditions of their capture. On a larger scale, the Appeal Courts’ decision also indicates that the salience of the habeas precedent established in Guantanamo litigation will likely be limited to Guantanamo, and this will be the so regardless of whether the case history of a Bagram detainee is virtually identical to that of a man sent to Guantanamo Bay.
What’s the bottom line? If the administration’s legal victory is not challenged and reversed by the Supreme Court, then the Obama administration will have successfully transformed Bagram into its very own GTMO. The crucial difference will be that while jurisdictional ambiguity around the status of Guantanamo Bay ultimately produced the possibility for habeas litigation there, the lack of ambiguity concerning the status of Bagram – alongside the court’s refusal to rule on the difference that they recognized as existing between foreign and Aghan detainees- will effectively eliminate the possibility of habeas litigation altogether in Bagram.
Earlier this week, Shayana Kadidal of the Center for Constitutional Rights appeared on The Rachel Maddow Show to discuss the Bagram decision. He provides us with a critical analysis of the ruling and its implications moving forth: