Closing Guantanamo Bay Fades As A Priority

Immediately following Boumediene, the BushAdministration argued that the decision was inapplicable to detainees at Bagram -- including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned. Amazingly, the Bush DOJ -- in a lawsuit brought by Bagram detainees seeking habeas review of their detention -- contended that if they abduct someone & ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind. In other words, the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged. One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as TheNewYorkTimes put it, Obama lawyers "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former PresidentBush’s legal team."



But last April, JohnBates, the Bush-43-appointed, rightwing judge overseeing the case, rejected the Bush/Obama position and held that Boumediene applies to detainees picked up outside of Afghanistan & then shipped to Bagram.



JudgeBates explained that the Bagram detainees are "virtually identical to the detainees in Boumediene," & that the Constitutional issue was exactly the same: namely, "the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely."



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