Detainee Watch

By Dan Froomkin
1:22 PM ET, 02/23/2009

I don't think many people figure prisoners of war deserve access to the domestic courts of their enemies, or that civilian judges should interfere on the battlefield. But how many of the 600 "enemy combatants" being held in Afghanistan (and several thousand in Iraq) genuinely qualify as POWs? And how many are the same kind of vaguely identified terror "suspects" that the U.S. had been sending to Guantanamo -- until U.S. courts ruled that the Cuban outpost was de facto U.S. territory? And how will we ever know?

Charlie Savage writes in the New York Times: "The Obama administration has 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.

"In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release....

"The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

"The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States.....

"The Obama administration's decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration's policy of indefinitely detaining 'enemy combatants' without trials."

So what does this mean? Savage writes: "Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided 'to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything' about the detention policies it inherited because it had too many other problems to deal with."

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