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Obama Administration argues that detainees at Bagram Air Force Base do not have right of habeas corpus

Federal District Court Judge John D. Bates

Federal District Court Judge John D. Bates

Federal District Judge John D. Bates issued an order on January 22, 2009 providing the Obama Administration the opportunity to change the Bush Administration’s position regarding the question of whether detainees held at Bagram Air Force Base in Afghanistan have the right to petition for habeas corpus. Today, the Obama Administration gave its response:

This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position.

Lyle Denniston over at SCOTUSblog observers:

By declining to change position, the new Administration cannot yet know whether Judge Bates will go along and reject the habeas challenges of Bagram detainees now pending in his Court.  In fact, at a hearing on their cases Jan. 7, the judge dropped hints that he may find that at least some of those at Bagram have a right to contest their initial confinement and their continuing imprisonment there.

After President Obama’s inauguration, and his announcement that he was moving to close Guantanamo, Judge Bates invited the government to “refine their position” on Bagram.  Based on the reply, the judge added, “the Court will decide whether further briefing or some other course is appropriate.”

The reply, however, seems to indicate that the government will rely on the written briefs and oral argument it has already filed in the Bagram cases.  Whether the detainees’ lawyers will seek to file some kind of response to the new government filing is unclear.

If there are no further filings, Bates probably will go ahead and rule on the threshhold question of whether a U.S. court has any jurisdiction over a U.S. airbase, and its prison facilities, in Afghanistan.

Because of the brevity of Friday’s government filing, it is uncertain whether the Obama Administration is leaving itself the option of reconsidering, later on, the detention policy for Bagram.  The Administration is increasing its military buildup in Afghanistan, and that presumably will lead to a rise in the number of prisoners captured and then confined at Bagram.

It will be interesting to see how Judge Bates rules. If he does rule that detainees at Bagram have the right to petition for habeas, this would , I believe, be a significant expansion of existing jurisprudence on the limits of habeas.

(HT: Bobby Chesney)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.