How treating Bagram as the new Gitmo could backfire

Dawinder Sidhu on the prospects for habeas rights at the Bagram prison in Afghanistan:

Reports are now emerging that the White House is considering making Bagram Air Base, the main U.S. detention facility in Afghanistan, the functional replacement for Guantánamo.

Understandably, this has provoked significant outcry from civil liberties advocates, who charge that any such move would be a conscious effort to evade the rule of law. But it might actually be a blessing in disguise, because if the administration does pursue this course it would set the stage for a long-overdue court ruling that could very well vest Bagram’s prisoners with the right to challenge their detention.

At issue is the precarious reach of the writ of habeas corpus -- the time-honored legal right to petition a court to ensure that the executive has sufficient cause to detain an individual. In 2008, the Supreme Court held in Boumediene v. Bush that Guantánamo detainees are entitled to habeas. As the Boumediene case resolved only whether habeas applies to detainees at Guantánamo -- and not other international post-9/11 American facilities -- it remains unclear whether foreign detainees at Bagram can invoke the habeas writ.

Indeed, this very question is at the heart of al Maqaleh v. Obama -- an ongoing legal battle between several current Bagram detainees and the Obama administration. Because these Bagram detainees have not yet been accorded the habeas right, there is concern that the administration’s proposal would place all prospective foreign terrorism suspects beyond the rule of law, without fundamental habeas protections.

In reality, though, this could actually open the door to the al Maqaleh court ultimately holding -- against the government -- that habeas does extend to foreign detainees in Bagram. In other words, in resolving an important policy question, the administration could seriously weaken its legal case.

Sidhu goes on to explain how the U.S. couldn't just pass off "official" oversight of Bagram to the Afghan government, all the while ultimately controlling operations there.

The Supreme Court has made it clear that the government may not "game" the system -- that the habeas writ "cannot be contracted away" and that the administration can’t decide for itself "when and where [the Constitution’s] terms apply." For this reason, when the government posited that habeas proceedings cannot take place in Bagram because it is an "active theater of war," the district court responded by pointing out that it is the government that was responsible for bringing the detainees, captured outside of Afghanistan, to Bagram.

From nearly the beginning of Obama's term, the administration has argued against affording detainees in legal black holes like Bagram any rights to trials. Indefinite detention has been the priority from the start in a continuation of one of the most egregious Bush-era disparagements of basic human rights. To think that this scenario would be a surprise to them would be pretty naive. I'm sure they have a plan to combat habeas corpus rights at Bagram no matter what.

The Orwellian logic of our government pertaining to U.S. detainee and foreign policy in the midst of "democracy promoting" ventures in Iraq and Afghanistan consistently amazes. Indefinite detention = justice, brute force = democracy, reckless Predator drone strikes = a kinder, safer insurgent eradication, war = peace, the examples are endless.

But Sidhu's explanation gives some hope. Unfortunately, when your only speck of hope is the government (maybe) losing the right to imprison suspects indefinitely without a trial, the climb back to respectability and the rule of law is long and steep.