DC Circuit Helps Obama Turn Bagram into Black Hole

The DC Circuit just overturned a District Court opinion that granted three Bagram detainees who were captured outside of Afghanistan (though the government contests this claim for one of the detainees) the right to a habeas proceeding.

It based its argument on three factors the Supreme Court listed in deciding in Boumediene that detainees at Gitmo did have the right to habeas proceedings.

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

The Circuit found that the three detainees had actually had a less adequate status determination than the detainees in Boumediene. But it said it had to consider the two other named factors. It found that the US has nowhere near the sovereignty over Bagram that it has in Gitmo.

As the Supreme Court set forth, Guantanamo Bay is “a territory that, while technically not part of the United States, is under the complete and total control of our Government.” 128 S. Ct. at 2262. While it is true that the United States holds a leasehold interest in Bagram, and held a leasehold interest in Guantanamo, the surrounding circumstances are hardly the same. The United States has maintained its total control of Guantanamo Bay for over a century, even in the face of a hostile government maintaining de jure sovereignty over the property. In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the “host” country. Therefore, the notion that de facto sovereignty extends to Bagram is no more real than would have been the same claim with respect to Landsberg in the Eisentrager case. While it is certainly realistic to assert that the United States has de facto sovereignty over Guantanamo, the same simply is not true with respect to Bagram.


The Supreme Court expressly stated in Boumediene that at Guantanamo, “[w]hile obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.”

And the Circuit placed even more weight on the impracticality of giving detainees at Bagram habeas proceedings.

Afghanistan remains a theater of active military combat. The United States and coalition forces conduct “an ongoing military campaign against al Qaeda, the Taliban regime, and their affiliates and supporters in Afghanistan.” These operations are conducted in part from Bagram Airfield. Bagram has been subject to repeated attacks from the Taliban and al Qaeda, including a March 2009 suicide bombing striking the gates of the facility, and Taliban rocket attacks in June of 2009 resulting in death and injury to United States service members and other personnel.


But we hold that the third factor, that is “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ,” particularly when considered along with the second factor, weighs overwhelmingly in favor of the position of the United States. It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.

And on that basis–effectively the fact that the Administration chooses to bring men into a theater of war to detain them–the Circuit overturned the District decision.

We cannot, consistent with Eisentrager as elucidated by Boumediene, hold that the right to the writ of habeas corpus and the constitutional protections of the Suspension Clause extend to Bagram detention facility in Afghanistan, and we therefore must reverse the decision of the district court denying the motion of the United States to dismiss the petitions.

Now, as the detainees argued, this basically means that the US can avoid any legal obligation to give detainees some kind of legal review by keeping detainees at Bagram or, possibly, taking them there, into a theater of war, so as to deprive them of a right to habeas. In rejecting this argument, the Circuit got a little silly.

We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able “to evade judicial review of Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will.” Brief of Appellees at 34 (quotation marks and citation omitted). However, that is not what happened here. Indeed, without dismissing the legitimacy or sincerity of appellees’ concerns, we doubt that this fact goes to either the second or third of the Supreme Court’s enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation.

In so stating, we note that the Supreme Court did not dictate that the three enumerated factors are exhaustive. It only told us that “at least three factors” are relevant. Boumediene, 128 S. Ct. at 2259 (emphasis added). Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present. However, the notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to “turn off the Constitution” would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down.

Yes, it is true that the US has detained these men in Bagram since before the Boumediene decision. But to suggest the Bush and Obama Administrations haven’t, constantly and repeatedly, been making these kinds of calculations is simply naive. Furthermore, the decision to take these men to Afghanistan–particularly Amin Al-Bakri, a Yemeni captured in Thailand–was clearly a decision to take them outside the realm of existing sovereign nations that were not then at war.

Plus, unless SCOTUS overturns this, this is just an open invitation to take men from Gitmo (for example, Abu Zubaydah’s lawyer signed an amicus brief on this case) and deposit them in Bagram to take them beyond the reach of US law. Not US transportation and control mind you, just US law.

52 replies
  1. DWBartoo says:

    The court, in question, notices no patterns,

    Being “silly”, which may well be the “case” with certain courts more often than is realized or acknowledged, tends to afflict the overall quality of judgment.

    This is either the expedience of convenience or the convenience of expedience?

    Legal scholars will seriously debate this question for many years./SSSSSSSS


  2. PJEvans says:

    Who is running Bagram, in practice (as opposed to political theory)?
    If it’s the US, then it seems to me that Boumedienne should apply.

    (IANAL. But I think I have more sense than some of these judges.)

  3. klynn says:

    Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be ‘impractical or anomalous’ would have more weight.”


    It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.

    (my bold)

    IANAL…but I wonder…

    By using the “theater of war” language, and specifying “Afghanistan” did the court just open the door for the detainees to challenges their “detainee/enemy combatant” status and argue that in fact they are Prisoners Of War?

    If that door is opened by this language, then the right to a habeas proceeding would be restored according to the DoHR Prisoner of War articles, would it not?

    And it is not clear to me what this means?

    detainees had actually had a less adequate status determination than the detainees in Boumediene.

    These detainees just got put into a specified Theater of War in a specified nation, Afghanistan. I did not see a reference to enemy combatant status as defined through the Bush “War on Terror” definition.

    I am probably crazy to think these thoughts…

    • skdadl says:

      I think those are some deep questions, klynn, especially this one:

      did the court just open the door for the detainees to challenges their “detainee/enemy combatant” status and argue that in fact they are Prisoners Of War?

      I don’t know whether being a POW gets you a habeas hearing (lawyers required), but it certainly changes a lot of things about the way you can be held (although unfortunately you can in theory be held until the war ends, which, given this “war,” could be a very long time).

      But didn’t Bush/Cheney/Rumsfeld invent the category of “illegal enemy combatants” precisely to duck POW classification? It has always been phony. It’s very disappointing that the courts have been able to avoid looking at that problem.

      I don’t know how naive all the ducking and weaving is, although I’d be ashamed to be making sophistical arguments like that. “The law is being fixed to fit the policy” — gosh, that formulation sounds so familiar for some reason.

    • Leen says:

      This conscious manipulation of the agreed upon standards for war are so creepy.

      prisoners of war to enemy combatants
      “theater” as if all of these people put in harms way are not human beings all “actors” just playing parts.

      What a way to disconnect.

      Hope you are right about the “theater of war” reference

      • ondelette says:

        I think, as a legal term, the DC Circuit made up the term “theater of war” out of whole cloth. I know “theater” has been used to define large scale war areas, like the “European Theater” in World War II in strategies and in histories, but it has no meaning in IHL. The term is much looser and more poorly defined than “battlefield” or “region of armed conflict”, which do have meanings and define where military objectives are allowed to be. “Theater of war” exists solely because all of Afghanistan is not a “battlefield” and these people are trying to include both the internment facility and the location of alleged arrest of these prisoners as being places where the “Commander in Chief” supercedes the judiciary.

        • bmaz says:

          It goes back at least as far as the Hague Convention, which is part of international humanitarian law is it not?

          • ondelette says:

            Actually, I did a search of it in the Geneva Conventions, Hague Conventions and commentaries. According to the search engine, which I suppose could be wrong, it appears exactly once, in a commentary, in discussing Article 27 of the 1st Geneva Convention, spec. why a person from a neutral country is required to go through their country’s diplomatic channels for rights if they have relations with the party in whose territory they find themselves in.

            Maybe that’s wrong, but I don’t think “theater of war” is in any way, shape, or form equivalent to “battlefield”, it’s a brand new application. There is a pretty strange application of the laws of war going on when someone can be apprehended in a country that isn’t one in which the U.S. is engaged in war, and transported to one in which it is, and the Court can rely on the fact that the latter country is at war to determine the individual’s status. And it isn’t true that all of Afghanistan is a battlefield. It is true that it’s all a theater of war, but that isn’t a term which makes a difference for the status of an individual held as a prisoner. That’s why I’m saying they are making up laws of war out of whole cloth. It’s nothing new, the SCOTUS agreed with the government in Hamdan that the government could declare all of al Qaeda to be illegal enemy combatants. Article 5 would indicate that this determination has to be done individually, not collectively, and Article 3 says the same in the last para.

            • bmaz says:

              Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, U.S.T.S. 540, 2 A.J.I.L. Supp. 117, entered into force January 26, 1910; Chapter 2, Article 11.

              • ondelette says:

                I stand corrected then. What does it mean for a prisoner, under Geneva 1949? And what does it mean with respect to a battlefield? And doesn’t that particular article, which is superceded by Article 19 of the 3rd Geneva Convention (which uses the term “combat zone”) make transport to Bagram illegal regardless, if it is, as the Court said, somehow equivalent to in the battlefield? Or does the term mean what it looks like it means in the decision: A term chosen because they would have trouble with using the terms that are commonly used, because Bagram wouldn’t qualify?

                • bmaz says:

                  Heh, I honestly have no idea; way outside of my wheelhouse. But I do know that the effectively identical term “theater of military operations” dates at least back to In Re Milligan, a seminal decision issued in 1866 by the Supreme court. I don’t support the view of the DC Circuit (or the Supremes apparently) on Habeas availability in these cases, not in the least. I can understand there may be circumstances where restrictions or lack of availability of the writ are/is warranted; but don’t see that here. I do however think the basis (even if it is being bent to get where they do) the courts are using to get there is a little more historical than you are giving credit for. I support what you are doing, but would probably recommend distinguishing the term as opposed to taking the position it is a new contrivance.

                  • ondelette says:

                    So, and I’m drawing on a discussion I had with another lawyer on Glenn Greenwald’s column, do you think that it should be enough for these petitioners to argue that they have no other place to have their detention reviewed, and that the reason is because the U.S. has prevented their access to anywhere else? He (coram nobis on that blog) agreed in part, and cited some other cases that relate, especially, Filartiga v. Pena-Irala, and Kadic v. Karadzic.

                    The laws of war require that their status be periodically reviewed, especially since they aren’t supposedly lawful combatants (which makes them civilians).

                    • bmaz says:

                      Don’t know. But I guess I would advise to focus on US law first and argue the international as buttressing opinion only. With the Roberts Court, arguing international primary will get you nowhere fast. At this point, I would focus on the proven duplicity of the government with the movement of detainees between not only physical locations, but legal jurisdictions, in bad faith and demonstrate the very pattern the door was left open for in Boumediene and was noted in Maqaleh. Ain’t much, but about the best I got.

                    • klynn says:


                      As I have written before, IANAL. However, in my background of cross cultural mediation, I have focused a great deal on dynamics of war and peacemaking.

                      I brought the questions up above at 3 because they are serious questions about the import of the language the court used.

                      Here is a source worth reading

                      Davis’ views on international law have been helpful to me in the past. Look at his definitions and think about and ask yourself about the legality of the Bush definition of enemy combatant.

                      In many circles Prisoner of War and enemy combatant are mutual/equivalent and Bush was violating law to try and redefine it otherwise.

                      But again, IANAL. I defer.

                      Enjoy the use of Theatre of War in his book on page 312.

                      Anyway, I think door may be open here… but I know little.

  4. BoxTurtle says:

    A cynic might think that the court went into deliberations with a specific goal in mind and twisted the law as much as needed to achieve it.

    I await bmaz take on this, as I’m not sure I understand the ruling well enough to do my normal oversimplification.

    Boxturtle (Regardless, it’s worth at least 3 votes with the Supremes without any arguments)

  5. Garrett says:

    Article 19

    Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.

    Article 23

    No prisoner of war may at any time be sent to or detained in areas where he may be exposed to the fire of the combat zone

    Holding people in POW camps located in a war zone, since they cannot flee the combat, is inhumane.

    Article 21

    prisoners of war may not be held in close confinement

    Holding people in small cells, in a war zone, since they cannot flee the combat, is inhumaner.

    Chaining people to the wall, in a war zone, since they cannot flee the combat, is inhumanest.

    • bobschacht says:

      You really sum it up well. I hope this decision gets appealed, the detainees lawyers put together a more powerful case, and the Supremes get it right.

      Bob in AZ

      • Mary says:

        And everyone gets a pony.

        Will Kagan be participating or recusing? Not that anything but her self respect will matters in connection with that answer – she’s no Stevens.

        But Congress needs to be looking at what it is putting on the court with that kind of question hanging out there – our President has just successfully asserted the right to pick up anyone, anywhere, and ship them to a battle site as the pretext for holding them.

        Of course, the Geneva Conventions would REQUIRE that such persons be given a full and fair, regularized tribunal hearing to assert they are non-combatants. The downside, as with GITMO, is that once you’ve shipped non-combatants out of country, you’ve committed a war crime. Shipping them to a battlefield would make it a more significant war crime. And there is no regularized tribunal available for such hearings, anyway, so the Court has unilaterally decided to back us out of the Geneva Conventions – an interesting take on judicial power. And how do you have that “full and fair” hearing when your adjudicators will be determining that they and their superiors are participants in a war crime if they do find you to be a non-combatant? Maybe just a bit of undue coercion on the decisionmaker? Ya think?

        @6 – very simple and telling examples.

  6. ondelette says:

    Silly isn’t the word for it. It was specifically argued as a reason for using such facilities, both by Jack Goldsmith and by Stephen Bradbury, and by John Yoo. There isn’t a hypothetical or speculative quality to the assertion, it’s very, very real. That the court could even pen those paragraphs is an insult to those who follow the other TV show in town, reality.

    BTW, since the question has come up here before about how many detention sites there are in Afghanistan, the ICRC annual report is out. They visited 17,633 detainees last year, at 121 sites in Afghanistan.

    • DWBartoo says:

      You got me thinking, ondelette, and, obviously you’ve been “there” before my meager thoughts said, “Hmm, is ondelette saying that the “enabling” findings or justifications for all of what Obama has contrived to continue, that which had been Bush and Cheney’s, all come back to Yoo, Bradbury, and others?”

      Or, is there some “new” or “improved” … “determination”?

      I probably missed the latest “bling” or “drift”.

      However, I remain, curious.


      • PJEvans says:

        I don’t recall seeing anywhere that they’d actually repudiated those memos or even declared them ‘non-operational’. So my guess is that those memos are still in use, being a very convenient way to keep things hidden or under control. And being quietly expanded to cover everyone else.

      • ondelette says:

        Obviously, I wouldn’t know if there’s been new ‘findings’ or opinions driving this. But it is very, very important to understand that the philosophy underpinning Yoo/Bybee, Goldsmith, and Bradbury is still very much alive, and the denial that keeps it from “shocking the conscience” is still very much not a river in Egypt. The philosophy goes:
        1) The Senate reservations to the CAT require that the detainee has access to the 5th amendment, because the 8th is only for punishment and the 14th is only a matter between the states.
        2) Outside the sovereign U.S., Eisenstrager states that the detainee has no access to the 5th amendment. Therefore, any treatment short of torture (i.e. CIDT) is legal for U.S. personnel holding the detainee.
        3) The Geneva Conventions allow persons to be held for security reasons for the duration of conflict.
        4) The global war on terror is global in extent, and permanent in time, therefore everywhere is a battlefield.
        5) All prisoners taken pursuant to the September 11 AUMF are illegal combatants, because al Qaeda and the Taliban are terrorist organizations.
        6) The laws of war are therefore lex specialis for all detainees, and the Supreme Court has validated that they are entitled only to the protections of common Article 3.
        7) Facilities may therefore be set up to serve as intelligence gathering sites, as long as they are not on the sovereign territory of the United States, and as long as the gathering procedure falls only under Article 16 of the CAT, and not under Article 1.
        8) Therefore interrogation methods may be created that butt up on the boundary between the two, so long as they are administered by professionals and monitored by medical and psychological experts to keep from crossing the line.
        9) Protected civilians may be removed to such sites as long as they are brought back to their country in advance of having been charged with a crime.

        That’s the whole thing. Some of it is Yoo/Bybee/Bradbury, (9) is Goldsmith/Garcia, (6) is Patterson/Bolton, (7) is Cheney/Macintosh. The creative lack of use of Miranda and so forth are also related.

        I would claim that much of this has been, in fact, validated by the D.C. Circuit, and that almost all of it is still doctrine at some level in the government/military/intelligence agencies. The underlying reasoning is still very much believed by most parties involved, has been elucidated recently by Lindsey Graham and confirmed by Eric Holder. If nothing changes that underlying reasoning, nothing is going to change. Ban some practice, the purpose it serves will manifest in some other practice almost as soon as it is forbidden.

        The only way to stop it is to renounce the idea that people are repositories of information to be cracked open, spun up, and drained of what they know, and that those reservations to the CAT are meant to say how the U.S. interprets Article 16, not place jurisdictional requirements on it, and in general to forever renounce the idea that information can somehow make 300 million people secure from all harm in perpetuity.

        Anything short of that, you’ll see it come back again and again.

        Sorry for the rant, Marcy. I’m just upset.

        • DWBartoo says:

          Thank you, ondelette, for the rant, delineating your take on the choir’s current cant.

          “Nine-eleven changed everything.”

          No, actually it was a cynical few, people, who, with the connivance of Congress, and, evermore, apparently, with that of the courts, as well, who changed “everything” … to suit themselves, they hide some of it away as “national security secrets” and twist the law to protect themselves, whatever they do … regardless of who it is they do it to.

          None, at this time, may or dare, in America, OR abroad, to effectively, question or try stop this behavior and the world-wide consequences which will, inevitably, ensue.

          Perhaps to take our minds off such matters, as well as the blatant “failures” more daily evident, America might convince itself to go to war, in a bigger way, with someone?

          I appreciate your voice, ondelette.


        • Mary says:

          You 10 would be, “As long as they survive their detention without being tortured to death, but if not, oh well, oops.”

          BTW – Rivkin and Lee Casey filed an amicus for the Special Forces Association. So at least we know that if they guys who were carving bullets out of the bodies of the dead women in the “raid gone wrong” had just thought to take the bodies with them back to Bagram, first, then – quite literally – no one would have had to produce the body.

        • Jeff Kaye says:

          Very good comments by all, and article by Marcy.

          Ondelette, you write (my emphasis):

          8) Therefore interrogation methods may be created that butt up on the boundary between the two, so long as they are administered by professionals and monitored by medical and psychological experts to keep from crossing the line.

          Ah, and I believe that’s where we will get them, or on murder charges. If one looks at the history of trials for torture, one finds that sometimes the charges come from crimes not exactly listed as torture. They did this in Greece with the trials of the junta torturers in 1975.

          Geneva forbids(emphasis added):

          Common Article 3 Violations. –
          (1) Prohibited conduct. – In subsection (c)(3), the term “grave
          breach of common Article 3” means any conduct (such conduct
          constituting a grave breach of common Article 3 of the
          international conventions done at Geneva August 12, 1949), as
          (A) Torture. – The act of a person who commits, or conspires
          or attempts to commit, an act specifically intended to inflict
          severe physical or mental pain or suffering (other than pain or
          suffering incidental to lawful sanctions) upon another person
          within his custody or physical control for the purpose of
          obtaining information or a confession, punishment,
          intimidation, coercion, or any reason based on discrimination
          of any kind.
          (B) Cruel or inhuman treatment. – The act of a person who
          commits, or conspires or attempts to commit, an act intended to
          inflict severe or serious physical or mental pain or suffering
          (other than pain or suffering incidental to lawful sanctions),
          including serious physical abuse, upon another within his
          custody or control.
          (C) Performing biological experiments. – The act of a person
          who subjects, or conspires or attempts to subject, one or more
          persons within his custody or physical control to biological
          experiments without a legitimate medical or dental purpose and
          in so doing endangers the body or health of such person or

          (D) Murder. – The act of a person who intentionally kills, or
          conspires or attempts to kill, or kills whether intentionally
          or unintentionally in the course of committing any other
          offense under this subsection, one or more persons taking no
          active part in the hostilities, including those placed out of
          combat by sickness, wounds, detention, or any other cause.

          Let them twist the rules for torture and murder, but they’ll have to show how or why they can twist them for biological experiments, something which the population in general holds in repulsion. They are doing all they can to hide these, but the tide is flowing against them.

          From Ambinder’s article on Tor (quoted in excellent new article by Stephen Soldz — my emphasis):

          From what information I’ve been able to gather, the interrogation environment is much like a social science laboratory, with psychologists and experts in human behavior looking for clues to see who might know more than they do, alternating with interrogators trained to ferret out actionable intelligence information.

          Of course you’re upset, ondelette. What decent person wouldn’t be? But these SOBs are not going to get away with their crimes, and the names of the judges and legislators that alibi or cover for them will go down in ignominy for centuries, much as one derides today the judges in the trial of Jean Calas.

          • powwow says:

            We should in fact highlight “Tor,” in response to this cavalier D.C. Circuit opinion by Chief Circuit Judge David B. Sentelle (the opinion’s author), Circuit Judge David S. Tatel, and Senior Circuit Judge Harry T. Edwards (both of whom joined Sentelle’s opinion in full), because, after all, implicitly, if not explicitly, this is the American government activity that those three federal judges just blessed with a blank check (quoting from the new Stephen Soldz article, though the judges’ “hometown” newspaper actually covered parts of the story too, so they can’t credibly plead ignorance):

            In recent months the Washington Post, New York Times, and BBC reported on a secret prison on [the] fringes of the Bagram Air Base in Afghanistan. Referred to by former prisoners as the “black jail,” this institution is reportedly a site where prisoner abuse is regular and systematic. The BBC reported that all nine former prisoners they interviewed:

            told consistent stories of being held in isolation in cold cells where a light is on all day and night.

            The men said they had been deprived of sleep by US military personnel there.

            Thus, we can assume that psychological torture techniques of isolation, sleep deprivation, and hypothermia are routine aspects of treatment inside the facility.

            The Washington Post provided additional details through interviews with two youths imprisoned in the black jail. As one young man, Rashid, who is “younger than 16” described:

            At the beginning of his detention, he was forced to strip naked and undergo a medical checkup in front of about a half-dozen American soldiers. He said that his Muslim upbringing made such a display humiliating and that the soldiers made it worse.

            “They touched me all over my body. They took pictures, and they were laughing and laughing,” he said. “They were doing everything.”

            He said he lived in a small concrete cell that was slightly longer than the length of his body. Food was tossed in a plastic bag through a slot in the metal door. Both teenagers said that when they tried to sleep, on the floor, their captors shouted at them and hammered on their cells.

            When summoned for daily interrogations, Rashid said, he was made to wear a hood, handcuffs and ear coverings and was marched into the meeting room. He said he was punched by his interrogators while being prodded to admit ties to the Taliban; he denied such ties. During some sessions, he said, his interrogator forced him to look at pornographic movies and magazines while also showing him a photograph of his mother.

            “I was just crying and crying. I was too young,” Rashid said. “I didn’t know what a prison looks like or what a prison is.”

            [Marc] Ambinder [of the Atlantic] received confirmation from the Defense Department of the existence of this secret detention center at Bagram that Department had previously consistently denied existed. [Ambinder has a picture of the facility here.]

            District Judge John Bates, whose ruling this decision overturns, is not the one who’s going to regret his judgement on this issue in future. On the contrary, many, or most, of the federal judges now serving on the D.C. Circuit Court of Appeals are someday soon going to be very sorry – for the effect on their own self-image, if nothing else – that they repeatedly bent to the political winds when it came to responding to the pleas of disfavored, demonized, and unjustly-imprisoned foreign plaintiffs, instead of resolving to do the right thing by our Constitution and their own consciences, never mind the political difficulties, or how it displeased the powerful.

            • ondelette says:

              Thanks, powwow, for the Stephen Soldz article. There’s one other thing, in addition to mentioning the biological experiments ban in the Geneva Conventions. Setting up a system for torture is more than a war crime. It’s a crime against humanity.

              • DWBartoo says:

                “It’s a crime against humanity.”


                Before we may lay waste the humanity of others, we first, of necessity, must lay waste our own.

                Any society that thinks, or believes, that other societies will long sustain, or even tolerate, such behavior, is not sadly, but profoundly mistaken.

                Thank you, ondelette, and thank you, powwow.

                Thank all of you, who have spoken up here, and consistently, against what should trouble the souls and consciences of all.

                Whatever else may be said, it is good to know that we are not alone, nor even, I suspect, that small a number, considering those who must understand and agree that our fate, quite as much as that of any terrorist, now and henceforth, depends upon our own humanity.

                That is the only thing which may save us, however we are stopped.


        • bobschacht says:

          Thank you for laying things out this way, ondelette. I’m upset, too. I hope you’re wrong, and that things are not really this bad, but this may be what we have become.

          Bob in AZ

          • PJEvans says:

            Bob, I have this feeling that it is that bad, but they have enough control of the media that most people won’t find out until it’s much worse.

            I’m thinking that demonstrations should be done wearing burqas (for all genders). Maybe in camo….

        • Hmmm says:

          Ondelette, this is by far the clearest tracing of the argument I’ve ever seen. It seems to comport with all the evidence and all the peculiarities that we know of (or at least the parts I can remember tonight) down to a very fine level of detail. You seem quite knowledgeable about all the particulars. Can I ask, how confident are you of the steps in this chain?

          If the lawyerly folks in the immediate vicinity agree with the analysis (or is that more ‘virtuosic feat of insightful inference’?), then this should be front page news. Organized teams of lawyers should be working on this, if they aren’t already.

          To think all this misery and destruction and debasement of the US is nothing more than a twisted line of tortured logic, trying to thread a ridiculously long sequence of loopholes in the fabric of our law and Constitution. ‘Gaming the system’ doesn’t begin to cover it.

        • bmaz says:

          Pretty good synopsis I think; sad but just about right. I left a response to you way back on the Kucinich thread.

  7. Scarecrow says:

    wrt to Bagram vs Gitmo, I’m sure it will come as a great relieve to those imprisoned at Bagram that the US just doesn’t have that much legal control over what happens there.

    The justice issue is about fundamental fairness to humans vs a sovereign’s unchecked power, not the location where it’s done.

  8. powwow says:

    Have the various justice-hostile panels of the (lower, and only, appeals court allowed jurisdiction over these grave human-rights-vs.-federal-police-powers habaes questions) D.C. Circuit Court of Appeals managed to completely vitiate and moot the Supreme Court’s Boumediene holdings yet?

    Judging by the yawns issuing forth from the Supreme Court, as it prepares to vacate its premises for many months of a summer-fall recess, while the heat and humidity mounts where the wrongfully-accused and abused-with-impunity foreign-citizen detainees in Guantanamo are imprisoned, while still deprived of the speedy, or even any, recourse in the federal courts supposedly provided by Boumediene almost two years ago now, it apparently wouldn’t much matter if they have in fact collectively reduced that vaunted decision to nothing but a hollow shell. It sounded good at the time, but a rogue government can’t be bothered to follow Supreme Court direction, and obviously the Supreme Court has no Top Secret Army or department full of publicly-financed lawyers to enforce its direction, so the rogue government wins this one hands down, so long as the Washington-based media continues to take its marching orders from the powerful while carefully avoiding questioning their actions, as a free press would.

    No justice need apply in the D.C. Circuit Court of Appeals, the Supreme Court can’t be bothered to intervene, and so the other two branches of government will continue to act accordingly, accountability-free, hubris unabated. Meanwhile, any actual reporters who dare speak the truth, and thereby risk introducing harsh reality into the placid world view of the insulated elite sheltering in D.C., will be promptly banned from the premises of our military prison camps by Executive Branch fiat, without the slightest murmur or consequence from those charged with upholding the rights of a “free press,” as part of their solemn responsibility to protect the “security” of every human being subject to arbitrary abuse at the hands of our, or any, government unbounded by the law in all but name.

    • DWBartoo says:


      Well said, powwow, my thanks and appreciation.

      But let us give the court its proper due.

      Due diligence and due process have duly become due deference.

      A deference to raw, to brute power.

      It will be argued that there was no choice, that the facts, the “evidence” before the law, and that, indeed, the rule of law itself, demanded that the court so rule.

      Nonsense, the court looked around, smelled the cordite, tested the wind, and decided that it really had no choice, it would have found itself alone, and isolated, its decision derided and abjured, had it ventured into the murky waters of daring to gainsay the most powerful force on earth. Better to look silly and complicit, because there is no consequence beyond a wee dab of embarrassment or an imperceptible tremor of shame …

      (The truth may be more powerful, someday, time will tell, but for now, expediency will out.)


      That is what “we” are now become.

  9. b2020 says:

    Obama’s Black Hole.

    It has a certain offensive ring to it. Almost as… offensive… as Predator “chastity drone” jokes.

    I wonder whether Colbert has the balls to do for Obama what he did for Bush, or whether the Daily Show prefers to write Obama’s “punchlines”. The Onion certainly has not hit its stride under the most recent Worst Administration Ever.

  10. spanishinquisition says:

    This ruling doesn’t make sense in that sounds like it allows the government to deprive you of your rights by virtue of them moving you. Just logically it would seem that people should always be given the benefit of the doubt with their rights – if the government is taking you to a place where rights are denied but you had them before you were forcefully moved, you should still have your rights. This ruling seems to say that a US citizen in a US city could be renditioned off to a war zone and lose all their rights because they were abducted. It’s one thing to say this is OK if someone was caught in the theater, but it is a whole other thing to say if the government puts you in a war zone the government can deprive you of your rights. This just seems to encourage the government act badly and recklessly.

    Since North Korea withdrew from the armistice in 2009, does that mean our bases there can be turned into Gitmos (if they secretly haven’t already) as that is technically a “war zone”?

  11. PJEvans says:

    It’s scary how many people think this is an acceptable way to treat ‘suspected terrorists’.
    Apparently they’re sure that it’s never going to happen to them, or any of their family or friends.

  12. earlofhuntingdon says:

    The DC Circuit is conservative, more so since Bush added the likes of the execrable Brett Kavanaugh, but this seems a bit much even for it. That an administration could avoid judicial scrutiny over how it mistreats prisoners – detained for a host of reasons that have nothing to do with its war in Afghanistan – simply by relocating them to a war zone is contemptible. It is precisely the decision Obama hoped for in “promising” to “close” its prison in Gitmo while in reality it simply relocates its prisons and its mistreatment of detainees to a prison it purposely located in an active war zone.

  13. earlofhuntingdon says:

    It is also false to say that the US does not have the requisite de facto control over Bagram that it has over its prison in Gitmo. The US’s control over its base at Bagram is founded on an exercise of power inside a failed state, whereas its control over Gitmo is founded on a century-old lease obtained through force majeure over another failed state. The difference, while a legal nicety, is practically immaterial, something even the conservative DC Circuit ougth to have taken judicial notice of.

  14. timbo says:

    It doesn’t take them “beyond” US law. What it does is point out how flimsy US law has become when it comes to basic human decency and fair application of the laws of the United States. It’s basically more evidence that the US should and can be held accountable for numerous Geneva treaty violations by extra-national legal bodies so empowered.

    And, yeah, the appeals DC fed court is being entirely disingenuous. They were looking for a way for the US Administration to skirt the law in this case, definitely a truly bad precedent and certainly one that could be used in a Nuremberg type setting to impeach the integrity and veracity of these so-called men of the law. Acting credulous does not make the credulity believable at all and this ruling certainly does strain the imagination a tad.

  15. bobschacht says:

    Gadzooks! bmaz and ondelette in agreement! That makes ondelette @ 14 virtually a lead pipe cinch, whatever that means. Sad, but apparently too true. I emailed ondelette’s catalog to the lawyers in my family.

    Bob in AZ

  16. bmaz says:

    Couple of thoughts. I see several folks upthread brought up the conservative nature of the DC Circuit; while that is certainly true, Tatel and Edwards are not necessarily in that category. They may not be flaming progressives, but their background and history are very decent – they are most certainly not in the Silberman/Kavanagh sect. As this was an unanimous opinion with Tatel and Edwards joining, I think you have to get beyond the reflexive knee jerk bit of it being the result of the Federalist society type of DC Circuit conservative mindset.

    Secondly, the reliance on Eisentrager is sadly predictable and, really, if you compare the cases it is easy to see why. That said, courts have found convenient ways to distinguish or work around Eisentrager when they really wanted to; no such luck here of course.

    Thirdly, and this is worth chewing on a little, there is an interesting dichotomy going on in the realm of jurisdiction on foreign soil. The Supremes hemmed and hawed and struggled to find it for Gitmo in Boumediene and Rasul; and struggled with the implications, but refused to find it at Bagram in Maqaleh. However, under the Military Extraterritorial Jurisdiction Act (MEJA), which is codified in 18 USC 3261 (See here: http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00003261—-000-.html ) and the Special Maritime and Territorial Jurisdiction provision of 18 USC 7(9) (See here: http://www.law.cornell.edu/uscode/18/usc_sec_18_00000007—-000-.html ) the US government claims jurisdiction for criminal offenses committed in places like Bagram. So the US government thinks there is enough jurisdiction to criminally prosecute individuals and remove their liberty (i.e. imprison them for convictions), which obviously involves fundamental Constitutional rights, but does not think there should be jurisdiction for the most fundamental right of Habeas. Quite a hypocritical dichotomy.

  17. ondelette says:

    Ah well, I thought when you replied so quickly, you were here. I should have remembered that your comments to me are never intended as discussion. My mistake.

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