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]

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.