Bagram Detainees Staying Put--and Maybe Gitmo Detainees Too

Overruling a lower court, the U.S. Court of Appeals for the D.C. Circuit ruled on May 21 that three detainees at Afghanistan's Bagram Air Base can be held indefinitely. In so doing, the panel declined to apply the U.S. Supreme Court precedent in the 2008 Boumediene v. Bush case beyond Guantanamo Bay Naval Base:

A federal appeals court ruled Friday that three men who had been detained by the United States military for years without trial in Afghanistan had no recourse to American courts...The detainees, two Yemenis and a Tunisian who say they were captured outside Afghanistan, contend that they are not terrorists and are being mistakenly imprisoned at the American military prison at Bagram Air Base. But a three-judge panel of the United States Court of Appeals for the District of Columbia ruled unanimously that the three had no right to habeas corpus, in which judges would review evidence against them and could order their release...The ruling dealt a severe blow to wider efforts by lawyers to extend a landmark 2008 Supreme Court ruling granting habeas corpus rights to prisoners at Guantanamo Bay, Cuba.

The appellate panel In Maqaleh v. Gatess explained that habeas corpus relief doesn't apply to an active theater of war in a territory outside of U.S. sovereignty.

David Rifkin, who filed a supporting brief on behalf of the government, said the decision "has restored a considerable degree of sanity to what threatened to be a crazy legal regime that would have deprived the United States, for the first time in history, of the opportunity to capture and detain — outside of the United States, in theaters of war — high-value combatants. That has been solved, and it will apply to many other situations in the future."

In the meantime, the proposed shutdown of the Gitmo prison facility seems less and less likely:

The Senate Armed Services Committee dealt a big setback to President Obama's plans to close the detention facility at Guantanamo Bay when lawmakers stripped funding for a new prison in Illinois to hold the detainees. Committee Chairman Carl Levin on Friday [May 28] told reporters the committee, in a voice vote, stripped $245 million that would have gone to buy and retrofit the Thomson prison in Illinois. [Washington Times]

Lawyers In Love--With Terrorists?

We've wondered over and over why with all the worthy and less worthy pro bono causes out there, why would certain lawyers, especially in high-profile firms, decide to represent enemy combatants? Former terrorism prosecutor Andrew McCarthy expounds on the strange priorities of the "Gitmo Bar":

Lawyers presume that they have an elite status in our litigious society and that their superior knowledge of the law will intimidate critics into silence. Since they are trained advocates, they figure that if they feign enough indignation over somebody’s “questioning their patriotism,” then Americans will shrink from asking, “How is it patriotic to go out of your way to help America’s enemies in wartime?”

...The legal profession’s depiction of these lawyers as heroic servants not of the enemy but of the Constitution is unmitigated nonsense: You can’t be performing a vital constitutional function when the function is not required by the Constitution. They can repeat the lie a million times, but that won’t make it a fact. These lawyers made a conscious decision to contribute their services, usually gratis, to enemy combatants with whom the American people are at war...

The Gitmo detainees, prisoners of war, are not like indigent defendants prosecuted in the criminal-justice system. The Constitution guarantees counsel to people accused of ordinary crimes. The lawyers who represent such defendants do fulfill a necessary constitutional function. The criminal-justice system, which undergirds the rule of law on which our society depends, could not function without them.

That’s not the case with the volunteer Gitmo Bar. If that enterprise were dissolved tomorrow, the rule of law would not be compromised in any way. Prisoners of war could still file habeas corpus petitions — they’d just have to do it themselves, like American prisoners do. If a military judge thought a particular legal claim was potentially meritorious but complex, the judge could appoint a military lawyer to help the detainee — just as the federal district courts, at their discretion, can appoint counsel in unusual cases to represent habeas claimants. And if detainees were charged with war crimes, they would be more than adequately represented by the military defense lawyers. The system would get along just fine — indeed, it would get along just as it was designed to get along. Sure, we’d no longer have hundreds of volunteer litigators making the military’s job far more difficult as it tried to fight the war we rely on it to fight. That would be bad for al-Qaeda, but it would be good for us...

Here’s the landscape: The Obama Justice Department is staffed with many lawyers who volunteered their services to America’s enemies. Since those lawyers have been running the department, there has been a detectable shift in favor of due-process rights for terrorists, a bias in favor of civilian trials in which terrorists are vested with all the rights of American citizens, a bias against military tribunals, the extension of Miranda protections to enemy combatants, a concerted effort to publish previously classified information detailing interrogation methods and depicting the alleged abuse of detainees, efforts to subject lawyers who authorized aggressive counterterrorism policies to professional sanction, the reopening of investigations against CIA interrogators even though those cases were previously closed by apolitical law-enforcement professionals, and the continued accusation that officials responsible for designing and carrying out the Bush administration’s counterterrorism policies committed war crimes.

Is there A Fifth Column in the Justice Department?

We mentioned before that U.S. Attorney General Holder's former law firm represented enemy combatants in court, which poses a fundamental conflict of interest for him and his staff. The news media--which was really, really concerned about Justice Department politicization in the prior administration--has pretty much ignored this story. The Keep America Safe organization released this video about the so-called Al Qaeda Seven:



FoxNews.com has more on the story:

The video by the group Keep America Safe, which dubbed the seven lawyers "The Al Qaeda 7," is the latest salvo in a lengthty political battle.

For several months, Sen. Chuck Grassley (R-IA) has led an effort to uncover politically-appointed lawyers within the Justice Department who have advocated for Guantanamo Bay detainees or other terror suspects.

An extensive review of court documents and media reports by Fox News suggests many of the seven lawyers in question played only minor or short-lived roles in advocating for detainees. However, it's unclear what roles, if any, they have played in detainee-related matters since joining the Justice Department.

On FNC, Charles Krauthammer discusses these "radical civil libertarians" in the Justice Department who have a "peculiar understanding of the constitution":

White House Receptive To Indefinite Detention For Terrorists

At least that's what Sen. Lindsey Graham tells Politico:

The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama’s plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday.

Last summer, White House officials said they had ruled out seeking a “preventive detention” statute as a way to deal with anti-terror detainees, saying the administration would hold any Guantanamo prisoners brought to the U.S. in criminal courts or under the general “law of war” principles permitting detention of enemy combatants.

However, speaking at a news conference in Greenville, S.C., Monday, Graham said the White House now seems open to a new law to lay out the standards for open-ended imprisonment of those alleged to be members of or fighters for Al Qaeda or the Taliban.

Sen. Graham Blasts Administration's Policy Of Trying Terror Detainees in Civilian Court

While he can be wobbly on certain issues, Sen. Lindsey Graham (R-SC) did an excellent job on FNC today assailing the administration's ill-conceived counter-terrorism policies when it comes to treating enemy combatants as common criminals:

While Graham conceded that Gitmo is the best run prison in the world, he said he is nonetheless willing to support the administration's effort to shut down the prison provided the White House adopts a "national security-centric system."

D.C. Circuit Validates Indefinite Detention For Enemy Combatants

The detainee lobby loses another round in court, this time a habeas corpus petition on behalf of Ghaleb Nassar Al-Bihani, apparently a cook for the Taliban who carried a weapon but never fired it in combat:

A federal appeals court Tuesday endorsed the government's sweeping authority to detain terrorism suspects whom it can link to al-Qaeda, the Taliban and affiliated groups.

The ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld a lower court's decision in 2008 that the government may continue to detain a Yemeni, an admitted cook for a group allied with the Taliban. The prisoner, Ghaleb Nassar al-Bihani, has been held at the U.S. military facility at Guantanamo Bay, Cuba, since 2002.

The decision would make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so strongly backs the government's authority, legal experts said.

"This is a big win for the government," said Robert Chesney, a national security law professor at the University of Texas.

Two of the judges on the three-judge panel were George W. Bush appointees: Janice Rogers Brown and Brett Kavanaugh. "Viewed in full, the facts show Al-Bihani was part of and supported a group—prior to and after September 11—that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers," the court wrote.

Supremes Reject Gitmo Prisoners' Appeal

The detainee lobby loses one at the high court:

The U.S. Supreme Court said on Monday that it rejected an appeal by four former Guantanamo Bay prisoners arguing that they should be able to proceed with their lawsuit against top Pentagon officials for torture and religious abuse.

The justices refused to review a U.S. appeals court ruling that dismissed the lawsuit by the four British citizens over their treatment at the U.S. military base at Guantanamo Bay in Cuba on the grounds the officials enjoyed immunity.

...The Obama administration urged the Supreme Court to reject the appeal. It said the appeals court's decision was correct and that further review of the case was unwarranted.