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DC Circuit Rules 3 Detainees at Afghan Airbase Have No Right to Habeas

Posted May 21, 2010 11:08 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that three detainees held at the Bagram Air Force Base in Afghanistan do not have a right to a habeas hearing in U.S. courts.

The U.S. Court of Appeals for the D.C. Circuit ruled today in the case of two Yemenis and a Tunisian being held in a cooperative arrangement between the United States and Afghanistan, according to stories by the Associated Press and SCOTUSblog.

SCOTUSblog calls the ruling "a major victory for the Obama administration’s detention policy."

At issue, according to SCOTUSblog, was whether the 2008 U.S. Supreme Court decision giving habeas rights to Guantanamo detainees extends to captives at other overseas military facilities.

The D.C. Circuit took what it regarded as a middle position on the reach of the Supreme Court case, Boumediene v. Bush, SCOTUSblog says: “On the one hand, it rejected the government argument that Boumediene had adopted a bright-line rule that habeas never extends to another country where the U.S. has a military facility, unless it is like Guantanamo Bay where the U.S. has the factual equivalent of national sovereignty. But it also rejected an argument by Bagram detainees’ lawyers that habeas extends to a U.S. military base overseas if the U.S. in fact has control of the facility and its management.”

The appeals court decision (PDF) looked to three tests outlined in Boumediene, and found no right to a hearing in U.S. courts. Weighing against habeas, the court said, were two facts: Afghanistan is a theater of war, and the United States has no permanent lock on the Bagram lease.

The court acknowledged the detainees' argument that the United States could "switch the Constitution on or off at will" by transferring detainees to war zones. "However, that is not what happened here," the court said. "We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation."

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