May 23, 2010
Few issues highlight Barack Obama’s extreme hypocrisy the way that Bagram 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.
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 — 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, embracing 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 that Boumediene applies  to detainees picked up outside of Afghanistan and then shipped to Bagram. I reviewed that ruling here , 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.”