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Obama should define rights of suspected terrorists held by U.S. abroad

To avoid the mistakes of the Bush administration, the president must institute new detention procedures or risk having the courts tie his hands.

April 09, 2009

Rebuffing both the Bush and Obama administrations, a federal judge has ruled that three suspected terrorists held at Bagram air base in Afghanistan may challenge their confinement in U.S. courts. Whether or not the administration appeals the ruling, it should address the grievances that gave rise to it.

When the U.S. Supreme Court ruled last year that inmates at Guantanamo could seek a writ of habeas corpus, critics warned that the decision would lead to judges second-guessing military decisions overseas. That hasn't happened. But last week's decision by U.S. District Judge John Bates undeniably extends the reach of the Constitution beyond the de facto U.S. territory of Guantanamo. Even the Obama administration, which has renounced many of President Bush's anti-terrorism policies, believes that goes too far.

Bates insisted that his ruling was narrow, applying only to three men -- a Tunisian and two Yemenis -- who were transported to Bagram after being captured elsewhere. (The decision doesn't apply to prisoners captured in Afghanistan.) The judge said that the three are "virtually identical" to Guantanamo detainees because they're foreign nationals who have been transported to a foreign country, imprisoned indefinitely and denied a fair chance to dispute their designation as enemy combatants.

Less persuasively, Bates likened U.S. control of the Bagram facility to the virtual sovereignty the United States exercises over Guantanamo under a lease from Cuba. That Guantanamo is under "the total military and civil control" of the United States was an important factor in the Supreme Court's 5-4 decision granting detainees there access to U.S. courts. So was the fact that Guantanamo was, as Justice Anthony Kennedy noted, a tranquil and secure area. Afghanistan, as President Obama has emphasized, remains a dangerous place, where the niceties of constitutional law are more difficult to apply.

Given the narrowness of last year's Supreme Court decision, the Obama administration might well convince a majority of the justices that Bates overreached. That would trouble advocates of due process for detainees, but the opposite result could pose its own problems. If anyone held by the U.S. military anywhere enjoyed habeas corpus rights, Washington might be tempted to surrender prisoners to foreign governments that would abuse them -- a revival of the Bush administration's policy of "extraordinary rendition."

Ideally, the administration would avoid a Supreme Court ruling on the issue by quickly instituting new procedures at Bagram that would satisfy Bates. Otherwise, Obama will be accused of perpetuating not only the Bush administration's legal theories but its indifference to injustice.

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