Dispatches from the Creation Wars

Do not adjust your monitor. This is not a repeat. The Obama administration is defending yet another Bush administration position in the war on terror, arguing that the courts have no jurisdiction over military prisons overseas other than Guantanamo Bay.

The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.

In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. The filing shocked human rights attorneys.

“The hope we all had in President Obama to lead us on a different path has not turned out as we’d hoped,” said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Airfield. “We all expected better.”


The problems is that Bagram, like Guantanamo Bay, has housed innumerable inmates who were entirely innocent and who were subjected to brutal abuse in custody. Like many who were transported to Gitmo, many of the detainees at Bagram, which is located in Afghanistan, were turned in by other Afghanis who were seeking to get financial rewards from the US and they just turned in people they didn’t like or people from a different tribe.

The Supreme Court last summer gave al-Qaida and Taliban suspects held at the U.S. naval base at Guantanamo Bay, Cuba, the right to challenge their detention. With about 600 detainees at Bagram Air Base in Afghanistan and thousands more held in Iraq, courts are grappling with whether they, too, can sue to be released.

Three months after the Supreme Court’s ruling on Guantanamo Bay, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system.

The military has determined that all the detainees at Bagram are “enemy combatants.” The Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.

After Barack Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush’s legal argument. Justice Department spokesman Dean Boyd says the filing speaks for itself.

“They’ve now embraced the Bush policy that you can create prisons outside the law,” said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.

As a purely legal matter, it’s probably correct. The courts have never tried to intervene in a prison overseas during wartime, even one ruled by the military. I doubt they will here. But it’s morally appalling to claim that any government has the right to hold any person forever, without charges, without any due process or defense whatsoever.