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Some Old Bullshit

My Washington Independent colleague Daphne Eviatar laces into Obama for challenging Judge Bates’ ruling that Bagram detainees are entitled to habeas corpus.

In other words, it would be really inconvenient right now for the U.S. military to have to defend holding prisoners for years without charge or trial, and it has more important things to do, like fight a war on terror.

Doesn’t that sound eerily familiar? Isn’t that the same argument the Bush administration used when it said that prisoners at Guantanamo Bay didn’t have habeas rights? And wasn’t it President Obama who said that he rejects “a false choice between fighting terrorism and respecting habeas corpus?” So where did that guy go?

If anything, Daphne’s being too generous. From the start, it’s seemed to me that Bagram is different from Guantanamo: Bagram is supposed to house battlefield captures and Guantanamo is supposed to house long-term detainees. The Bush administration designed Guantanamo as a legal netherworld, and until new Office of Legal Counsel documents come to light — always a possibility, I suppose — Bagram never held such a legally exceptional designation. But Bagram has evolved into a quasi-Guantanamo, acting as a longer-term depository for holding detainees, so the distinction is less and less compelling. Now Bates ruled that distinction is so uncompelling that the Guantanamo habeas rulings apply to Bagram. That should be the end of it.

Daphne notes that it’s possible that this year’s detention and interrogation review policy may result in a reversal of the Obama administration’s Bagram position. But why believe that? Appealing the Bagram decision was entirely optional. It seems reasonable enough that the military shouldn’t need to provide legal counsel to every battlefield capture, and the fear of that from Bates’ ruling could explain the appeal. But that objection requires procedures in place to guard against long-term detention, and there’s no new Bagram policy. In light of the administration’s state secrets position in Jewel v. NSA, the likelier explanation is that the Obama administration is testing the boundaries of the expanded executive powers it inherited. Which is, I suppose, to be expected, but still deeply hypocritical.

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Spencer Ackerman

Spencer Ackerman

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