Bag’em & Tag’em @ Bagram

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled that three detainees, allegedly captured in Afghanistan and held for years at Bagram Air Force, are barred from accessing American courts. (I say allegedly because the detainees claim they were captured outside Afghanistan.) The decision reverses the lower court’s denial of a motion by the Government to dismiss the petitions for lack of jurisdiction under § 7(a) the Military Commissions Act of 2006. The lower court carefully analyzed and relied on the U.S. Supreme Court test articulated in June 2008 in Boumediene v. Bush, which granted Guantanamo Bay detainees access to the U.S. Court system. Basing its opinion on what it calls a middle-ground interpretation of Boumediene, the Court of Appeals dismissed the habeas petitions, asserting that permitting litigation of every detainee in an on-going theater of war would hamper the war effort. To read the U.S. Court of Appeals opinion, click here.

To my surprise, the three-judge panel of the Appeals Court consisted of one conservative and two liberals. Perhaps even stranger, the lower court citing a change in executive administrations, invited the Government to express any change in its position regarding the Commissions Act of 2006 and its effect on the question of jurisdiction in this case. In response, the Government stated that it “adheres to its previously articulated position.” Now that’s change we can believe in.

Admittedly, the Court of Appeals carefully expounded upon the historical case background of habeas corpus rights as applied to non-citizens. Citing from previous case law, the Court states:

“[w]hat is presently at stake is . . . whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.”

In Boumediene, the Supreme Court found it uncontested that the United States maintained sovereignty over Guantanamo Bay (Gitmo). Although Gitmo is located on Cuba’s sovereign soil, the High Court disagreed with the Government, finding that the United States maintained the facility for over a century, in the face of a hostile regime, and outside the theater of war. The Boumediene Court, thus, rejected the Government’s argument that it did not maintain legal sovereignty over Gitmo, but rather it maintained sovereignty over the base de facto.

Here, the Bagram petitioners assert that the of United States lease of Bagram is likewise sufficient to effectuate habeas rights, or at least satisfy the second factor of the three factor test set forth in Boumediene. The Appeals Court, however, rejected this argument as an “extreme understanding.” Understandably, the Appeals Court fears that such an interpretation would create the potential for extending habeas rights to non-citizens held in any United States military facility in the world.

Instead, the Bagram Court holds that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Ok, so far, a logical conclusion.


Central to its decision, the Appeals Court found that the question of extraterritoriality was not determinative. Holding so would render all other points in Boumediene mere dicta and result in the overturning of seminal Supreme Court habeas cases. To maintain consistency, the Appeals Court held that the question of extraterritoriality was one of three factors that needed to be evaluated before granting habeas rights to non-citizen detainees. Those three factors are:

(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.

In the Court’s analysis of the first factor, the Court admits that status determination process of the Bagram detainees affords even less protection to the rights of detainees than was the case with Guantanamo detainees or previous historical status determining tribunals. The first factor, thus, heavily favors the petitioners. No gripes here.

The second factor is where the Court’s analysis seems to run somewhat amok. The Court distinguishes Bagram from Gitmo and asserts that the United States has “options as to the duration of the lease agreement” and that “there is no indication of any intent to occupy the base with permanence, nor is there hostility on the part of the ‘host’ country.” Really? At the outset of its opinion, the Court discusses the nature of the agreement. The agreement states that the leasehold created is to continue “until the United States or its successors determine that the premises are no longer required for its use.” Nothing is said of Afghanistan’s right to terminate the lease. It would seem the United States and coalition forces have the right to maintain Bagram indefinitely. As for Bagram not being located in a hostile host territory, it seems to make more sense that the cozy relationship we have with the Afghan government supports the premise that the United States intends to stay, especially since this is concomitant with the discretion afforded the United States by the lease agreement. Despite this, the Court holds that the second factor favors the United States.

As for the third factor, the Court found that it overwhelmingly favored the United States. The Court held that it is undisputed that Bagram is located in a theater of war, where Gitmo was not so located. The Court stated:

“In ruling for the extension of the writ to Guantanamo, the Supreme Court expressly noted that “[s]imilar threats are not apparent here.” 128 S. Ct. at 2261. In the case before us, similar, if not greater, threats are indeed apparent. The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram.”

While I find this assertion sound on its face, I cannot help but feel the Court missed an important nuance here. The Court makes an important analogy to a World War II case:

“Not only does this suggest that the detention at Bagram is more like the detention at Landsberg than Guantanamo, the position of the United States is even stronger in this case than it was in Eisentrager. As the Supreme Court recognized in Boumediene, even though active hostilities in the European theater had come to an end, at the time of the Eisentrager decision, many of the problems of a theater of war remained:

‘In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain enemy elements, guerilla fighters, and were-wolves.’

128 S. Ct. at 2261 (quoting Eisentrager, 339 U.S. at 784).”

Indeed, we are in a very different world than the one that existed at the time of Eisentrager. While World War II was fought on many fronts, the front lines were relatively well known and articulable. Today, we are fast approaching the decade mark of the War on Terror. Our enemy has many faces, pledges no allegiance to any particular flag, and hides amongst a myriad of civilian populations, including that of Afghanistan. This dynamic theater of conflict is what the Court’s analysis of the third factor fails to grasp. It is precisely because this dynamic exists that the Bagram detainee situation offers only slight differences to Gitmo.

To be perfectly clear, affording habeas rights to every non-citizen detainee in any and every United States facility abroad is not the proper solution. Certainly I do not, nor would any court, find a logical or legalistic basis to do so. However, some of the Bagram detainees have been held in confinement for as long as eight years. The War on Terror has seen its ups and downs in that stretch, yet it is a mission that does not purport to conclude in the foreseeable future. Even more likely, the Government must have some inkling as to whether it has legitimate cases against these detainees. If the Government cannot act on the information it has accumulated in this stretch, then it is high time for the U.S. courts to step in and determine whether or not it is appropriate to continue detention.

Even more telling, the Court acknowledges that the three Boumediene factors are not exhaustive. It notes the potential for the Executive to manipulate the Constitution as an additional factor, but stops short of setting up a preventative precedent based on mere speculation. It goes so far as to say that such illegal action is improbable.

Additionally, a point of contention in these cases is not only where the detention is located, but also where the detainees were captured. The detainee petitions contradict statements by their capturers. Yet the Court skims over this point, perhaps finding the sworn declaration from Colonel James W. Gray, Commander of Detention Operations more credible. While, by no means is the honor and integrity of the commanders of our armed forces called into question, our system of justice is not based on “he-said, she-said”, but rather on hard evidence. Our commanders and soldiers do commit Constitutional mistakes from time to time:

I believe it is of vital importanance that there is some form of check and balance to the detainee process so that it does not appear to the rest of the world that our armed forces have the unfettered discretion to kidnap and imprison any human being anywhere, anytime. It is becoming increasingly apparent that the best way to achieve this goal is by providing long-term detainees habeas corpus rights. I conclude with a quote from the Supreme Court opinion in Rasul v. Butler:

"There was 'no doubt' as to the court's power to issue writs of habeas corpus if the territory was 'under the subjection of the Crown.'"

On Cartoons

Nigger.

Freedom of speech allows me to say it. But that doesn't mean I should. Freedom of speech doesn't mitigate the hurt. It doesn't heal the wounds. 40 years of civil rights, 150 years of freedom and a black president haven't, and likely nothing ever will. Most of our society has removed that word; ostracized it from our vocabularies. Its use is punishable by death of career and reputation.

We all recognize that our speech is not less free without that word. In fact, our speech is more free. The oppression empowered and symbolized by its use silenced more than any FCC regulation ever could. Removing it from discourse was liberating--even to those who previously said it. No longer can they live in the darkness of having to use expletives to engage in political expression. Now they can come out of the woods, take off their hoods and appear as guests on The O'Reilly Factor. The word is almost gone and we're all winners for it.

However, today much of the American left lives in some parallel kindergarten playground universe, where sticks and stones and car-bombs may break their bones but cartoons can never hurt them, or anyone else. Nowhere does wisdom or sensibility enter their analysis of the "Everyone Draw Mohammed" controversy (or the seemingly dozens of nauseatingly repetitious cartoon "controversies" that preceded it). Nowhere is there concern to empower Muslim voices across the world. Or at least to force bigotry against Muslims out into the open. Rather, the only concern is that bigots continue to feel safe in their bigotry.

Hogwash. The bigots face the threat of physical violence. That's terrible. They're jerks, but they don't deserve to die for it. Still, risking your life and limb to be a bigot is not courageous. It's about as courageous as being a terrorist. Sure, you could die, but why would you want to die for that? We need a word for people who take risks to do reprehensible things. I can't think of one. Courage certainly doesn't fit.

Two words fit: diabolical maniacs.

From OED:

Diabolical: adj. Of or pertaining to the devil.

Maniac: n. A person who has an obsession with or excessive enthusiasm for something.

That's what terrorists are. They are obsessive devils, who pervert legitimate points of opposition into irrational and unconscionable acts of violence.

The provocateurs behind the cartoons, and every permutation of making deliberately offensive statements about Islam under the guise of "free speech," are also diabolical maniacs. Under the vice-grip of their own xenophobia, and in many cases disdain for religion in the abstract, they go to great lengths to organize around the irritation and provocation of the other, in hope that their own myopic views of Muslims will be proven right by an (understandably) angry and (inexplicably) violent response.

Then the American left interjects itself, not in the way it should by accurately the describing the situation as two sets of diabolical maniacs bring each other to heightened mutual arousal, but rather by standing by one set of maniacs in opposition to the other. Yes, the left should stand for free speech. But it never should stand by needlessly offensive and intentionally provocative free speech without reservation or disclaimer.

I am a former student of free speech scholar Lee Bollinger. While I don't believe he's been an ardent supporter of student speech in his capacity as President of Columbia University, Bollinger taught what I believe to be the best argument for free speech. Freedom of speech allows us the opportunity to counter bad words with better words. In the Qur'an, God implies that humanity was made fallible so that we could exemplify His Glory by overcoming our fallacies. Bollinger's argument for free speech frames the marketplace of ideas in that inherently Muslim context.

When defending the free speech of right wing provocateurs, the left must condemn the content of the speech they seek to protect. Absent any condemnation, the American left will come to serve as part of the defense for continued bigotry.