DC Circuit, Want to Rethink that Habeas Ruling?

Back in May, the DC Circuit decided that detainees at Bagram Air Force base were not entitled to habeas corpus because, since the base is in an active war zone, it would be unduly burdensome for the government to hold a real hearing.

I’m wondering if the DC Circuit would like to rethink that decision?

After all, in July, the Afghans proved themselves capable of holding a trial in the very same base in which Americans claim to be helpless to do the same, relying on assistance from US military lawyers who claim to be unable to hold their own meaningful hearings.

The chief judge asked God’s forgiveness if he had reached the wrong decision, and then he sentenced four members of an Afghan family charged with making bombs: two brothers to 10 years in prison and two other family members to time already served.

The courtroom, deep inside the American-run detention center in Parwan, erupted. The prosecutors complained that the sentences were too light, and the defense lawyers protested that they were too heavy; one of the defendants, Masri Gul, said he had not been allowed to examine the evidence; and the guards tried to quiet everyone.

[snip]

The American military made a great effort to showcase the bomb-making trial as a symbol of the transfer of authority, inviting Afghan and Western news media. However, the judges’ verdict seemed to depend in large part on crucial forensic work primarily from American technicians, and over all, Americans will continue to play a substantial role in decisions about the transfer of detainees. So far, Afghan and American officials have identified 110 cases for Afghan trials.

If a bunch of US military lawyers are already actively involved in hearings in Afghanistan (ones they’re proud enough to turn into a press spectacle), and if Afghans can pull a trial off, then doesn’t it follow the American military can muster some kind of real review of detainees?

Add in the fact that–as Spencer describes it–this base is looking more and more like an American exurb, down to the traffic jams and the road named Disney.

More notable than the overstuffed runways is the over-driven road. Disney Drive, the main thoroughfare that rings the eight-square-mile base, used to feature pedestrians with reflective sashes over their PT uniforms carrying Styrofoam boxes of leftovers out of the mess halls. And those guys are still there.

But now the western part of Disney is a two-lane parking lot of Humvees, flamboyant cargo big-rigs from Pakistan known as jingle trucks, yellow DHL shipping vans, contractor vehicles and mud-caked flatbeds. If the Navy could figure out a way to bring a littoral-combat ship to a landlocked country, it would idle on Disney.

Expect to wait an eternity if you want to pull out onto the road. Cross the street at your own risk.

Then there are all the new facilities. West Disney has a fresh coat of cement –- something that’s easy to come by, now that the Turkish firm Yukcel manufactures cement right inside Bagram’s walls.

There on the flightline: the skeletons of new hangars. New towers with particleboard for terraces. A skyline of cranes. The omnipresent plastic banner on a girder-and-cement seedling advertising a new project built by cut-rate labor paid by Inglett and Stubbs International.

If we’re going to build infrastructure for a permanent empire in Afghanistan, then we ought to build in all the things empires bring, like real judicial systems.

Seriously. With all this building and trialing and whatnot, the DC Circuit now looks like a collection of chumps buying a transparent government lie about the ability to hold hearings. Isn’t it time to rethink habeas in Afghanistan?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

  1. prostratedragon says:

    Would they have to get the case from new appellants, or would the new facts you cite here allow the same ones to reapply? Seems to me that’s a direct refudiamation of the basis of the court’s argument there.

    Addendum: Disney Drive?!! Is that really necessary? There’s a mindset there that could stand explication and display.

    [OT: Matthew Simmons died last night at his home, apparently from a heart attack in his hot tub.]

    • bobschacht says:

      Would they have to get the case from new appellants, or would the new facts you cite here allow the same ones to reapply?

      I have the same questions. Someone is going to have to file a suit, right? Who would have status? Or could the losers in the case file an appeal based on these particulars?

      Fantastic info, EW! Thanks!

      Bob in AZ

  2. Peterr says:

    Disney?

    Disney?

    It’s a world of laughter, a world of tears.
    It’s a world of hopes, and a world of fear.
    There’s so much that we share
    that its time we’re aware
    it’s a small world after all

    I never really noticed the “world of fear” part so much. Now, however, it makes sense.

    But I’m torn between two things: is this part of a product placement deal between the DOD and Disney, or will Disney go after the DOD for copyright infringement?

    • emptywheel says:

      Sounds like it’s been Disney since Spencer was last there two years ago, so I’ve got to assume it’s a placement deal.

      Micky colonizes the graveyard of empires.

  3. Jeff Kaye says:

    Great reporting by Spencer. But don’t expect the D.C. Circuit to change their minds because they’ve video-toured Disney Drive. The fix is in. There’s money to be made. They’re laying out the new streets and neighborhoods.

    I like the ones that are themed after Disney movie characters. There’s Pinocchio Avenue, where the press office sits, and Dopey Lane, where Petraeus keeps his HQ. The road to the detention facility is Malificent Drive.

    But don’t drive out East Disney. They say no one comes back from there.

    (Side note: it is not true that one of the roads is called Frozen Head of Walt Disney Street. That is a pernicious rumor.)

  4. Mary says:

    It’s all pretty mind boggling, isn’t it? Afghan bombmakers in Afghanistan get trials.

    Canadian kids accused of planting bombs while children in the company of adults – if they fall into US hands they get disappeared into torture for years, then kangaroo commissions.

    The US has control under the Afghan SOFA of Bagram, and yet Afghanistan’s judiciary has jurisdiction to hold trials there. OTOH, the American judiciary has no authority there, per the Kavanaugh circuit.

    For Afghan trials at Bagram, the US is producing forensic evidence and offering it up – for kangaroo commissions at home no one has any forensice evidence for pretty much anything bc — they don’t have to.

    And they wonder why they are losing the PR battle with goons like the Taliban? Here, come to Bagram, have a nice little court, with evidence and things and … what’s that?… what are those noises coming for over there in the salt pit? … why are those holes being dug there? … never mind, nothing to do with law and courts, just us Americans with no judicial system that punishes executive branch/military torture or that punishes destroying and falsifying evidence or that punishes violation of discovery rules and rules of conduct – just us guys with some human trafficking victims we’ve picked up around the world, having some free-from-law funsies with them.

    Now, back to your trials, watch us real close and we’ll show you how they work.

    It would be kind of fun for someone to file a petition with the Afghan court which has just apparently exercised jurisdiction from within Bagram. ;)

  5. AZ Matt says:

    I have a nephew who did 2 tours in Afghanistan guarding prisoners. The 2nd tour I believe he was Bagram. I have not asked him about any of it as he was probably told to keep his mouth shut about the experience.

  6. timbo says:

    Disgusting. And more evidence that the American judiciary is covering up war crimes and coddling American war criminals.