Friday, May 21, 2010

ACLU Press Release: Federal Court Rules No Habeas Rights for Bagram Prisoners

The following is an important ACLU press release on today's federal court of appeals ruling on whether or not non-Afghan prisoners, kidnapped via rendition and sent to Bagram can challenge their incarceration in a U.S. court. As the ACLU explains, the court ruled in favor of the position of the Obama administration, which is continuing and seeking to extend the heinous prisoner policies of the Bush/Cheney years. I hope to write more about the news here, and the Stephen Soldz story mentioned below, as time allows. (Bold emphasis below is added.)

Federal Court Rules Bagram Prisoners Can't Challenge Their Detention In U.S. Courts

Decision Gives Government Unchecked Power To Detain Individuals Indefinitely Without Due Process Or Transparency, Says ACLU

NEW YORK - May 21 - A federal court of appeals ruled today that three prisoners who are being held by the United States at Bagram Air Base in Afghanistan cannot challenge their detention in U.S. courts. The non-Afghan prisoners, some of whom were captured outside of Afghanistan far from any battlefield and "rendered" or transferred to Bagram, have been held at the detention facility for more than seven years without access to a court or counsel. The American Civil Liberties Union has filed habeas cases on behalf of several Bagram detainees and a Freedom of Information Act (FOIA) lawsuit for records relating to the detention, rendition and treatment of prisoners held there. The ACLU's Bagram habeas cases were not addressed by the court of appeals ruling today; the cases at issue were brought by the International Justice Network, the organization coordinating Bagram habeas litigation.

"Today's decision ratifies the dangerous principle that the U.S. government has unchecked power to capture people anywhere in the world, unilaterally declare them enemy combatants and subject them to indefinite military detention with no judicial review and little to no process for challenging their detention in any forum. The rule embraced by the court of appeals permits the executive branch to manipulate whether its actions will or will not be subject to judicial scrutiny, simply by choosing whether to fly a prisoner to Bagram or Guantánamo," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Locking up people who were picked up far from any battlefield for years without telling them why, without giving them access to lawyers and without giving them a fair chance to contest the evidence against them is unlawful and un-American."

In response to the ACLU's FOIA lawsuit for records related to the detention, rendition and treatment of prisoners at Bagram, the Defense Department in January released for the first time a list of the people imprisoned at the notorious detention facility. The list contains the names of 645 prisoners who were detained there as of September 2009, but other vital information including their citizenship, how long they have been held, in what country they were captured and the circumstances of their capture has been withheld. The ACLU is challenging the withholding of this information in court.

The government also continues to withhold information about the implementation of its new detainee status review procedures as well as information about a separate "secret jail" on the base, reportedly run by either the Joint Special Operations Command or the Defense Intelligence Agency, where detainees maintain they have been abused and guards and interrogators may not be subject to the same rules that apply at the main Bagram detention facility.

"Today's decision makes the need for greater transparency at Bagram all the more pressing. The Obama administration has instituted a new military process for determining whether prisoners should be released but has not disclosed any information about the implementation of the process, such as transcripts of the new Detainee Review Board proceedings," said Goodman. "The military disclosed this kind of information about Guantánamo proceedings and should do the same for the Bagram proceedings. The military should also come clean about the secret 'second' prison at Bagram Air Base the Red Cross confirmed existed last week."

More information about the ACLU's Bagram FOIA lawsuit is available online at:

More information about the ACLU's Bagram habeas cases is at:

Rachel Myers, National ACLU, (212) 549-2689 or 2666;
For more on the situation with the second, secret black site at Bagram see the excellent article by Stephen Soldz, The "Black Jail": Obama's Afghan Torture Center and the American Psychological Association. Soldz ties together the American Psychological Association and CIFA/DCHC psychologists, some of whom may be tied to ongoing secret interrogation activities, including abuse of prisoners, at Obama's black site prisons.

Finally, see also Glenn Greenwald's article today on the court decision:
One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?

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