Emptying One Black Hole to Fill Another

Yesterday, the Justice Department filed a brief (PDF) with the D.C. Court of Appeals asserting that detainees in U.S. custody at Bagram Air Force Base in Afghanistan have no right to challenge their detention in American courts.

Sound familiar? In early December 2007, Bush Justice Department lawyers made the same argument, except they were arguing that Guantánamo detainees didn’t have these rights. The Supreme Court disagreed: in the landmark Boumediene v. Bush decision, the high court found that detainees in U.S. custody at Guantánamo did have the right to challenge their detention.

Jonathan Hafetz, staff attorney with the ACLU’s National Security Project, said in a statement today:

Guantánamo was the Bush administration’s effort to do an end-run around the Constitution, and the Obama administration is now essentially using Bagram as a way to do an end-run around Guantánamo and the constitutional right of habeas corpus found to apply there. Simply shipping detainees from around the world to an alternative destination is not a solution, and flouts the principles laid down by the Supreme Court.

Over the weekend, the White House announced that prisoners at Bagram would be allowed to present evidence challenging their detention before “Detainee Review Boards.” Detainees would also be assigned a “personal representative” (read: not a lawyer) to help with their case.

In the meantime, we await responses from an alphabet soup of government agencies to our Freedom of Information Act request for information about the detainees held at Bagram. The CIA has been less than forthcoming (PDF); we’re still waiting for answers from the departments of Defense, Justice and State. We’re seeking basic information, including how many people are imprisoned at Bagram, who they are, how long they’ve been detained, and where and under what circumstances they were captured. We’re also requesting records about the process for prisoners to challenge their detention and designation as “enemy combatants.”

For the Obama administration to treat Bagram detainees the way the Bush administration treated Guantánamo detainees is to re-create a dangerous precedent. Let’s not allow Bagram become the new Gitmo.