The Absence Of Habeas Corpus At Bagram

In April 2009, a district judge handed down a decision in al-Maqleh v. Gates that prisoners held at Bagram were entitled to the same habeas corpus review as those detained in Guantanamo Bay. Habeas rights for Guantanamo prisoners had been recognized and granted by the US Supreme Court in the Boumediene v. Bush ruling.1 Judge Bates believed that the US was in sufficient and authoritative control of the prison to consider it under US administration, and hence under US legal jurisdiction. He argued that:

Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence. [The government’s] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process, Bagram detainees receive no review beyond the UECRB itself.

This Court need not determine how extensive the process must be to stave off the reach of the Suspension Clause to Bagram. It suffices to recognize that the UECRB process at Bagram falls well short of what the Supreme Court found inadequate at Guantánamo.

However, this decision was later over turned in 2010 by DC Court of Appeal, which argued that Afghanistan remained an active war zone, and that the prison would soon be handed over to the Afghanistan government. Based on this decision, Judge Bates over-turned his earlier judgement. The prisoners in Bagram remain without habeas corpus rights, and the Americans continue to retain influential control over the prisoner court processes there. The latter decision has been challenged extensively and remains one of the many poor decisions the DC Circuit Courts have made in response to the government’s draconian detention policies.

A UK habeas corpus petition on behalf of Amanatullah Ali, a Pakistani captured by British forces in Iraq and later handed over to the Americans, was filed in October 2010. The UK government rejected this petition on the grounds that it did not have sufficient power over the Bagram facility. A US Supreme Court judgement in October 2012 deemed Amanatuallah Ali’s continued detention in Bagram, years after the end of hostilities in Iraq, s a violation of international law.

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