Avoiding Habeas Corpus And The Need For A Bagram

Why did the US need to send prisoners to prisons located outside the borders and ‘jurisdiction’ of the United States? The answer is quite simple: the Bush administration was determined to avoid any and all court review for the many prisoners it was capturing in Afghanistan. The fact remains that the creators of America’s detention policies were suspicious if not outright dismissive of the judicial review process, and saw it as a weakness and an obstacle against combating ‘terrorist’ threats. They feared that courts, over-sight, and judicial review would reduce their ability to act as they believe they needed to in the face of what they said was a new kind of threat to the country. Sites like Guantanamo and Bagram were chose to avoid such a review, and move the practices and procedures of detention, torture, and renditions beyond the authority of both the US and the international legal structure.

 These fears and prejudices were confirmed in a memo written by John Yoo and Patrick F Filbin on December 28, 2001 (See Pages 29 – 37 of the book cited). The memo reveals that the Bush administration chose Guantanamo because it believe that it would be beyond the jurisdiction of the US federal courts and hence protected from judicial review. This would mean that the courts could not demand any legal protection for the prisoners’s rights, review the evidence, have access to habeas corpus, it could not inquire into the prisoner’s treatment, or demand that s/he have access to lawyers, family members and the media. That is, the prisoners could be isolated from any and all legal recourse, oversight and institutional protection, hence leaving them at the mercy of those determined to hold them indefinitely, torture them for information, and discard them as they saw fit. The memo was specifically written in response to a query about how judicial oversight could be avoided and habeas corpus rights denied to prisoners.

The last point is an important one – that there was a concentrated goal of selecting a detention regime where prisoners captured in the ‘war on terror’ could be isolated from the law, and the state’s obligations to it. As the very first sentence in the memo states, it was the need to avoid the writ of habeas corpus that led to the selection of Guantanamo, and later Bagram, as the principle sites for the detention and interrogation of prisoners. Habeas corpus is one of the most fundamental protections enshrined in the American Constitution and the American legal system. It is also one of the fundamental rights promised in the Pakistani Constitution. Article 199 (1) (b) (i) of the Pakistani constitution empowers the high courts to issue writs of habeas corpus. So can the Supreme Court, under Article 184 (3), “if it considers that a question of public importance” is involved.

Habeas corpus – derived from the Latin, means ‘you shall produce the body. This writ protects and safeguards the individual from unjust detention, and the right to challenge their detention and the accusations made against them. But perhaps most importantly, habeas is a check on state power, and in particular arbitrary power of arrest, imprisonment and disappearance. These checks on state power were precisely what the Bush administration was aiming to avoid. By creating sites like Guantanamo, Bagram and other CIA ‘black sites’ located in European countries (see various cases being filed against Poland, Romania and Lithuania to name just a few. Similar actions are now being organised in Africa starting with Djibouti.) the administration hoped that courts would be reluctant to challenge their right to detain at will, and torture at length. They were in fact right.

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