Analysis: Some overseas extension of habeas?
Wednesday, January 7th, 2009 4:45 pm | Lyle Denniston
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UPDATE 6:40 p.m. After Wednesday’s hearing, Judge John D. Bates ordered the government to supply, by Jan. 16, information on how many detainees are at Bagram Air Base, how many were captured elsewhere, and how many are Afghan citizens — the last two points apparently bearing on issues the judge had raised at the hearing. [order is
here]
Analysis
Voicing some concern over the government creating a “black hole” for detainees in a “law-free zone” at an overseas military base, a federal judge hinted on Wednesday that he may allow some of the prisoners the U.S. holds in Afghanistan to file court cases to test their captivity.
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Bates, though, did indicate that he would approach cautiously the issue of granting habeas rights for anyone now at a U.S. military prison at Bagram. Holding a hearing on whether the right to bring a habeas challenge, recognized by the Supreme Court last June in Boumediene v. Bush, extends to Bagram, the judge seemed to grow impatient with a lawyer for detainees who asked for a sweeping expansion of habeas rights.
“You seem to be reserving the position that anywhere [detainees] are held, they would have habeas privileges,” the judge commented to Stanford law professor Barbara J. Olshansky She told Bates that, while she was seeking habeas rights only for the four prisoners involved in the cases now before him, “there can’t be any place in the world where we can keep people without any due process.”
The judge, however, said: ”I don’t think the Supreme Court in Boumediene was intimating that anywhere detainees are held, they have habeas rights. That was not the kind of analysis it made.” The case, he said, was decided on very specific grounds, and left much to be decided by lower courts later. Any ruling that extended habeas everywhere, Bates added, “would write off the books” the six-factor test the Supreme Court laid down last June for determining the scope of habeas.