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June 13, 2008 5:01 PM

Lawyers Consider Implications of Supreme Court Rulings Beyond Guantánamo

Posted by Daphne Eviatar

While yesterday's Supreme Court ruling in Boumediene v. Bush addressed only the habeas corpus rights of suspected terrorists detained at the U.S. naval base at Guantánamo Bay, the language of the decision, coupled with the court’s ruling in Munaf v. Geren and its companion case, Geren v. Omar, has strong implications for the rights of suspected terrorists being held by the United States in other parts of the world, such as Afghanistan and Iraq.

The media and most lawyers have focused largely on the detainees at Guantánamo Bay, some of whom have been held for up to six years without charges or judicial review. But ever since the Court ruled in Rasul v. Bush that these detainees have at least some rights, the U.S. has been shifting suspected terrorists from Guantánamo to other detention centers--including one at the Bagram Theater Internment Facility in Afghanistan, one of about 20 detention centers used by the U.S. in that country, according to Human Rights Watch. There are now more than 600 prisoners at Bagram, according to Human Rights First and other advocates.

In light of yesterday's rulings, what rights might these prisoners have to challenge their detention?

"The combination of the jurisdictional result in Boumediene and the jurisdictional result in Munaf leads me to believe they will accept habeas review of U.S. terrorism or post-9/11 detentions anywhere where the U.S. is in control of the detention," says Joseph Margulies, a professor at the MacArthur Justice Center at Northwestern University Law School and counsel in Munaf and Omar. "They’re saying that if the U.S. is holding them for its own purposes, as a post-9/11 terrorism detention, then viewing these two cases together, I think the federal district court would have jurisdiction."

Munaf and Omar concerned two U.S. citizens detained by the U.S. in Iraq. In yesterday's 9-to-0 decision, the Court held that they were entitled to habeas corpus review because they were being held by U.S. forces, although in their case, that would not prevent the men from being turned over to Iraqi authorities for prosecution.

While the Court's decision in the more closely watched Boumediene case applied only to prisoners held at Guantánamo, Justice Kennedy, writing for the majority, traced the history of habeas corpus and its centrality to the American justice system. He explained that it applies to places over which the U.S. maintains an "objective degree of control," and not only to those places where the U.S. is the ultimate sovereign. The Court found that the U.S. has sufficient control over its leased base at Guantánamo Bay to entitle detainees there to the right of habeas corpus.

As Margulies sees it, Kennedy's reasoning could well apply to suspected terrorists being held at the U.S. base in Afghanistan. "They built [Bagram] and expanded its operations substantially because of decisions about Guantánamo," says Margulies.

Other advocates are more cautious about the implications of the Court's most recent decisions. Barbara Olshansky, a professor at Stanford Law School and legal director of the International Justice Network, which is challenging the detention of several detainees at Bagram, says future challenges will depend on "whether the kinds of agreements or leases we have in a place like Bagram meet the standard that's set in Rasul for exclusive jurisdiction and control. I would hope that what would happen is, given this decision, the Department of Defense would decide to do the right thing with people that they're holding from all over the world. But this is an administration that’s argued everything under the sun, and then, things from other solar systems. I think Bagram has a strong lease agreement. But I would have to look back at Stevens's opinion in Rasul, and at the particulars of the nature of U.S. control required."

According to Eric Lewis, a partner at Baach Robinson & Lewis in Washington, D.C., who also represents detainees at Bagram, "the logic of [the Boumediene] decision should apply to victims of arbitrary detention by the U.S. government and give them the right to challenge their detention."

The Department of Justice can be expected to fight the application of that logic anywhere beyond Guantánamo Bay. 

"In its opinion, the Court stressed the 'unique status of Guantánamo Bay,'" says Erik Ablin, a spokesman for the Justice Department. "According to the Court, the United States's control over Guantánamo is 'absolute' and 'indefinite,' and our military mission at Guantánamo would not be compromised by providing habeas review. In contrast, the Court explained, an 'active theater of war' would present an entirely different question."

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'active theater of war'

I wish they'd rule that there is no war, because it was never declared by Congress.
In any case, the U.S. has absolute, but not "indefinite" control over Iraqi detainees. It may be obliged to surrender that control if the U.N. Mandate expires at the end of the year.

First why are there two Supreme Court Justices who are not legal since there is no legal president and furthermore, there is no legal war.

Why do people with intelligence continue to go along with the insanity.

This is what I just can't figure out.

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