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"Obama and habeas corpus -- then and now," by Glenn Greenwald at Salon.com (4/11/09). The Supreme Court ruled in the Boumediene case that Guantanamo detainees have the right to a hearing to contest the accusations against them. After that the Bush administration took the detainees to the prison in Bagram, Afghanistan, where they did not have those same rights. The Obama administration also argued that military detainees (not necessarily captured in Afghanistan) have no right to challenge their imprisonment at Bagram. However, District Court Judge John Bates, a Bush appointee, ruled last month that "Boumediene applies every bit as much to Bagram as it does to Guantanamo." The Obama administration is appealing the decision. Even though candidate Obama said this after the original Boumediene decision came down:
Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.
Senator Obama's statement on the Senate floor (9/6/06), was also quoted by Greenwald. Senator Obama spoke for "an amendment to the Military Commission Act that would have restored habeas corpus rights to Guantanamo detainees. Greenwald laments in passionate terms, the President's apparent about face.
On April 2, 2009 a federal judge ruled that 3 prisoners being held at the Bagram AFB detention facility in Afghanistan can challenge their detentions in the U.S. courts. They were picked up outside of the country, are not Afghan citizens and have been held there for over 6 years. This is according to an ACLU Blog post. a related post discussed the increasing calls to "Move Gitmo Cases to U.S. Courts."
Other detainee cases are even more strange. For instance, What About the Uighurs? To quote from another ACLU Blog of Rights post in early April:
Remember the Uighurs? They are a group of 17 Chinese Muslims from Northwestern China that have been have been detained at Guantánamo for over seven years without charge. Last fall, the Bush administration conceded that the men are not enemy combatants, but since that time, the group has continued to remain in legal limbo.
Yesterday, lawyers representing the Uighurs asked the U.S. Supreme Court to order their release into the United States.
"Supreme Court vacates lower court decision in Al-Marri case," is the headline from the ACLU Blog of Rights (3/6/09). The court dismissed the case as moot because the Obama administration has decided to prosecute Al-Marri in federal court for providing material support to terrorism. Glenn Greenwald's (3/7/09) post explained that the effect was "preventing a judicial ruling on the power to imprison without charges." The critical question thus remains unresolved by the Supreme Court. Greenwald reminded that The Bush administration had used the same tactic (of finally charging a detainee with a crime) in the Jose Padilla case. Read the rest of this post to understand all the implications of these decisions.
There is some reason to believe, emptywheel states, that high value prisoners were often moved out of the facility at Guantanamo to keep them away from the purveu of the ICRC (see their report referenced below). And there is some reason to hope that a series of unnerving revelations and court decisions against the stances of the Obama Justice Department, after walking in the footsteps of the Bush administration's positions, will force the current administration to return to the rule of law. Keep hope alive.
For reference --
- "Red Cross Torture Report: What It Means," from The New York Review of Books (4/30/09).
- The Treatment of Detainees in U.S. Custody by Steven Aftergood, details and links to Senate hearings held June 17 and September 25, 2008.
- "Podcast: The 'Definitive List' of Guantanamo detainees" from the ACLU Blog of Rights (4/8/09). To quote:
But for all the information that’s already out there, London-based journalist Andy Worthington has recently made available "Guantanamo: The Definitive Prisoners List." This online resource supplements Worthington’s 2007 book, The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, which chronicles, through information gleaned from the Pentagon’s own records released through the Freedom of Information Act, individual histories of each detainee who was imprisoned at Gitmo since it opened in January, 2002.