Last month, the Obama administration informed a Washington D.C. federal court that it opposes judicial review of the detentions of those held at Bagram Air Base in Afghanistan. That means it is implicitly arguing that it can continue to hold people, some of whom were seized outside of Afghanistan, year after year, without charge or access to lawyers. This is unacceptable.
The Bagram situation is not identical to that at the U.S. Naval Base at Guantanamo Bay, Cuba; last year, the Supreme Court ruled that detainees there are entitled to judicial review. Bagram, for one thing, sits in a war zone and is on the soil of a sovereign nation that can offer detainees a different forum to challenge detention - two factors that the Supreme Court said could weigh against extending habeas corpus rights. But like prisoners at Guantanamo, those held at Bagram are under the unilateral control of the United States and its executive branch. And they have fewer protections at their disposal than the Guantanamo inmates held under a flawed tribunal system.
Those seized on the Afghan battlefield should be afforded full-fledged Article 5 proceedings under the Geneva Conventions. But those detained outside Afghanistan and brought to Bagram are entitled to more. Of the 600 or so detainees at Bagram, roughly 30 fall into this category. Some, like Haji Wazir, have been held for years without charge or access to lawyers and with no end to their detention in sight. Wazir and three others have filed a writ of habeas corpus in the U.S. District Court for the District of Columbia, seeking independent judicial review of their imprisonment.
There are legitimate concerns surrounding extension of habeas corpus rights to noncitizens held outside the United States, including the possibility that properly classified prisoners of war could lodge habeas challenges, subjecting war zone decisions to judicial review.
But if President Obama hopes to convince the D.C. federal court that judicial intervention is improper or unnecessary at Bagram, he must guarantee that Wazir and the 30 others in similar situations at Bagram have a muscular and independent review. One way to achieve this might be to transfer these detainees to Guantanamo, where they would have a right to have their cases judged by a U.S. federal court. And the United States must resoundingly reject the Bush-era practice of seizing prisoners overseas and "disappearing" them into secret or not-so-secret prisons. Terrorism suspects who are captured overseas must be either charged in a U.S. federal court or processed through another legitimate legal forum.
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