Afghanistan: Obama Suspends the Rule of Law (Greenwald)

Glenn Greenwald writes in Salon:

Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram [the US detention facility in Afghanistan] does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world -- far away from any battlefield -- and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court.

Back in the day, this was called "Bush's legal black hole."  In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumediene v. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo.  Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention.

Afghanistan and Beyond: The Wicked Ideology of Counter-Insurgency (Mull)

Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram --- including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned.  Amazingly, the Bush DOJ [Justice Department] --- in a lawsuit brought by Bagram detainees seeking habeas review of their detention --- contended that if they abduct someone and ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind.  In other words, the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.


One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embraci.ng a key argument of former President Bush’s legal team"

But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held thatBoumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram.  I reviewed that ruling, in which Judge Bates explained that the Bagram detainees are "virtually identical to the detainees in Boumediene," and that the Constitutional issue was exactly the same: namely, "the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely".

But the Obama administration was undeterred by this loss.  They quickly appealed Judge Bates' ruling.  As the New York Times described that appeal:  "The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight."

Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind.  When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it "one of the worst decisions in the history of this country."  But Obama hailed it as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo," and he praised the Court for "rejecting a false choice between fighting terrorism and respecting habeas corpus".  Even worse, when Obama went to the Senate floor in September, 2006, to speak against the habeas-denying provisions of the Military Commissions Act, this is what he melodramatically intoned:

As a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence....

By giving suspects a chance --- even one chance --- to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit....

Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer.  But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.

Can you smell the hypocrisy?  How could anyone miss its pungent, suffocating odor?  Apparently, what Obama called "a legal black hole at Guantanamo" is a heinous injustice, but "a legal black hole at Bagram" is the Embodiment of Hope.  And evidently, Obama would only feel "terror" if his child were abducted and taken to Guantanamo and imprisoned "without even getting one chance to ask why and prove their innocence".

But if the very same child were instead taken to Bagram and treated exactly the same way, that would be called Justice -- -or, to use his jargon, Pragmatism.  And what kind of person hails a Supreme Court decision as "protecting our core values" --- as Obama said of Boumediene --- only to then turn around and make a complete mockery of that ruling by insisting that the Cherished, Sacred Rights it recognized are purely a function of where the President orders a detainee-carrying military plane to land?

Independently, what happened to Obama's eloquent insistence that "restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe"?  How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States?  If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?

One other point:  this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the [Elena] Kagan-for-[John Paul] Stevens replacement could be.  If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed.  More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is whatBoumediene was, with Stevens in the majority) into a 5-4 defeat.  Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?

This is what Barack Obama has done to the habeas clause of the Constitution:  if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantanamo, then you have the right to have a federal court determine if there is sufficient evidence to hold you.  If, however, President Obama orders that you be taken to from Thailand to Bagram rather than to Guantanamo, then you will have no rights of any kind, and he can order you detained there indefinitely without any right to a habeas review.  That type of change is so very inspiring --- almost an exact replica of his vow to close Guantanamo...all in order to move its core attributes (including indefinite detention) a few thousand miles north to Thompson, Illinois.

Real estate agents have long emphasized "location, location, location" as the all-determining market factor.  Before we elected this Constitutional Scholar as Commander-in-Chief, who knew that this platitude also shaped our entire Constitution?

UPDATE:  Law Professor Steve Vladeck has more on the ruling, including "the perverse incentive that today's decision supports," as predicted by Justice [Antonin] Scalia in his Boumediene dissent:  namely, that a President attempting to deny Constitutional rights to detainees can simply transfer them to a "war zone" instead of to Guantanamo and then claim that courts cannot interfere in the detention.  Barack Obama quickly adopted that tactic for rendering the rights in Boumediene moot --- the same rights which, less than two years ago, he was praising the Supreme Court for safeguarding and lambasting the Bush administration for denying.  Vladeck also explains why the appellate court's caveat -- that overt government manipulation to evade habeas rights (i.e., shipping them to a war zone with the specific intent of avoidingBoumediene) might alter the calculus -- is rather meaningless.

UPDATE II:  Guest-hosting for Rachel Maddow last night, Chris Hayes talked with Shayana Kadidal of the Center for Constitutional Rights about the Bagram ruling and Obama's hypocrisy on these issues, and it was quite good, including a video clip of the 2006 Obama speech I excerpted above:

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And in The New York Times, Charlie Savage has a typically thorough examination of the impact of the ruling.  As he writes:  "The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight."  But GOP Sen. Lindsey Graham (author of the habeas-denying provision in the Military Commissions Act) "called the ruling a 'big win' and praised the administration for appealing the lower court’s ruling", and that's what really matters.

Matlin's America: Is the US Constitution Fit for Purpose?

In a 40-year professional lifetime of reading countless statutes, regulations, and legal documents, there were only two occasions when I realised instantly that I had read something exceptional.

One of these occurred over The Partnership Act of 1890, a 12-page document I was required to understand to pass one of my many lawyers’ exams, a document written in language as succinct as humanly possible. The other document was the American Constitution, which I read when I was at school. I was instantly impressed by its clarity of language, a reaction I remember all these years later. I recall its approach to the structure of government, the certainty of separation of powers, and the potential tensions between the three branches of federal government, although I didn’t think in exactly those terms. For me, the document was a work of art.

I am envious of Americans with their Constitution. We Brits, too, have a written constitution but it is not codified into one document. We have common law, statute, and legal precedent. We also have a Bill of Rights, passed in 1688 following the bloodless Glorious Revolution, when “the Crown in Parliament” became the supreme power. Our Bill of Rights, however is not a document anywhere near as influential as the American version.


Until 2009, we Brits did not have branches of government whose powers were clearly separate and enforceable as such. Our executive branch, namely the Prime Minister and his or her Cabinet, were also legislators, so no separation of powers there. The Law Lords, our equivalent of the Supreme Court, were not excluded from the House of Lords, acting as a legislative body, until last year. The strong government whipping powers in the House of Commons makes certain that the demands of the executive will always be met by legislators.

In contrast, Americans do not have to put up with attempts by the executive to circumnavigate separation of powers or force through legislation. I know of only one exception to US separation powers, namely when the Vice-President, sitting as chairman of the US Senate, casts a deciding vote in the event of a tie.

However, as an interested observer, I cannot regard the Constitution as perfect. It has surprising omissions. For example, there is no declaration of “one person, one vote”, which is one of the bedrocks of democracy. Perhaps this is an indication that the framers were not too impressed by the educational standards of the poorer of their fellow citizens.

Also, the Constitution makes no provision whatsoever for the regulation of city or town government. True, the largest American city in the 1780s was Boston, with a population of some 8,000 persons, thus there was no apparent urgency to legislate for smaller communities. However, the framers were aware that by 1789, Europe boasted large city populations, like Paris (750,000) and London (700,000), and it was easily foreseeable that the American urban population would rapidly increase. Indeed, Jefferson warned it would happen.

Apparently, the founders had more than enough to cope with between 1789 and 1792, deciding upon the rules for a federal government and getting the Constitution ratified by the states. City government would be a matter for local citizens and the states.

I like the immediacy of conflict, built into the Constitution, between the executive and legislature. A President’s legislative programme has to be championed into Congress. Positions on the legislation are taken rapidly, and a President can quickly gauge the difficulties he may have to face to get passage of his programme. Each body alson has advantages and disadvantages, not specified in the Constitution. For example, the Senate’s power of filibuster, which is a Congressional rule and not a constitutional power, can be removed or altered, as it was during Truman’s presidency, if Congress so decides. Within the executive, a President has what Teddy Roosevelt called “the bully pulpit”, namely the power to persuade through all kinds of media outlets who need to report daily on Presidential activities.

To counter the speed of conflict between the executive and legislative branches, the Supreme Court’s role is often decidedly slow. It took two years before Roosevelt’s New Deal programme was torn apart by the Court.

Still, the Supreme Court is an extraordinary device and is rightly held in high esteem. Undoubtedly, it is a political body but most of the time, it seeks to transcend partisan politics. On occasion it fails, for example when the 2000 Presidential election was handed to George W. Bush by the Court. However, even in this case, the Court was careful to state that its judgement was “not to be taken as a precedent”.

Where I struggle with the American Constitution is on interpretations made by the Court. Let us consider the First Amendment and the ruling of the Supreme Court that “speech” and “money” cannot be separated in the political sphere. It seems that the law permits a citizen to say anything he likes and to spend his money wherever and on whatsoever he chooses.

Recently, the Supremes extended the First Amendment ruling to corporate bodies. The court failed to impose a conservative or strict construction test upon what is constitutional. Furthermore, this ruling is difficult to reconcile with the ideals of Founding Fathers who sought to escape the privilege and abuse of wealth of their British masters. In 1792, would the framers have approved of a rival Presidential candidate, who could spend his way to power, to George Washington?

Not long ago, John McCain, together with Russ Feingold, sponsored a fair and reasonable statute on campaign finance. That statute is now in tatters, mainly as a result of Supreme Court rulings. Is this what Congress intended to happen? There seems to be something corrosive and corruptive in a political system that allows money, not ideas, to be the dominant factor in an election.

I am also deeply troubled by the interpretations of the Second Amendment over the "right to bear arms". I know I am treading on hallowed ground and expect many brickbats. Did the framers really intend citizens to have the right to own semi-automatic weapons? By extension, what is there to prevent a citizen from parking a Centurion Tank in his front yard?

My argument is based on legal reason. The Second Amendment provides as follows: “A well regulated militia being necessary to the security of the State, the right of the People to keep and bear arms shall not be infringed.”

The opening clause of the Amendment is what we lawyers call a condition precedent, in other words something which must occur or be in existence before the rest of a provision can apply. The words are plain. “Militia” in late eighteenth century-speak meant a legally constituted armed force. If a person was a member of such a force, he might keep and use a weapon as part of his duties. How can this Amendment be interpreted to allow Americans in many states to go to a gun show and buy and lawfully keep a weapon?

Now, I am happy to go toe to toe with any National Rifle Association member and argue principles such as “guns don’t kill, people do”. But this is not my point. I am looking at the amendment purely on legal interpretation. I do not believe that the framers had any intention whatsoever of permitting the entire American adult population to have the right to own guns. Had there been such an intention, the opening words of the Amendment would have been omitted because they would have been superfluous.

For certain, there is nothing in the Federalist Papers, the extensive discussion between James Madison, Alexander Hamilton, John Jay on the formation of the American Republic, which shows an intention to arm citizens as a matter of course or right. “Why would it?” I hear people ask. “Those discussions did not cover individual rights.” True but they covered every aspect of federal government for those times.

There are numerous examples of other decisions which cause concern, for example the Plessy v Ferguson decision enshrining "separate but equal", which contradicted not only the 14th Amendment but also the Civil Rights Act of 1875. There are the recent rulings on the Eighth Amendment over "cruel and unusual punishment". However, I know there have been innumerable brilliant decisions by the Court, dating back to Madison v Marbury in 1803.

Let me make it as clear as I can. I have no issues with a nation whose laws stem from a document that is almost 225 years old and has, by and large, stood the test of time. It is common ground that if the executive and legislative branches of the federal government cannot get the job done, it is almost always because of ideology, partisan politics, and personal problems between individuals, not the framework provided by the Constitution.

In 1937, Congress held the composition of The Supreme Court sacrosanct, when President Franklin D. Roosevelt attempted his Court Packing Plan. However, is the Court still held in high esteem today for the right reasons? I am bound to question a judiciary which seems to flout the wishes of the majority of both those elected and those who elected them, for the same ideological and partisan political reasons as members of Congress. If my argument has merit, perhaps it is the workings and processes of the Court that need to be re-examined, not the document which is supposed to be both its justification and its cause of concern.