The Bagram difference

For those who followed the debate over the legal rights of suspected terrorists at Guantanamo Bay, it might seem like a case of deja vu. This time the question is whether about 600 detainees held by the United States at Bagram air base in Afghanistan can challenge their confinement in U.S. courts. Like the Bush administration with Guantanamo, the Obama administration is opposing such access. It is appealing a federal judge’s ruling allowing three Bagram prisoners to seek writs of habeas corpus.

Yet there are important differences between the two situations. It’s unlikely that the U.S. Supreme Court, which ruled that prisoners held at Guantanamo had a right to habeas corpus, would extend the same right to detainees at Bagram. Guantanamo, as the court noted in a decision last year, is subject to the “de facto sovereignty” of the United States, while the Bagram site is temporarily leased from Afghanistan. Unlike Guantanamo, Bagram is located in an active war zone. Even the federal judge who ruled that some Bagram inmates could seek habeas corpus relief confined his ruling to non-Afghans, who currently number only 30, most of them Pakistanis.

Nonetheless, some civil libertarians see Bagram and Guantanamo as interchangeable. They warn that if Guantanamo were shut down as President Obama has promised, this administration or a future one could create a new “legal black hole” at Bagram to which suspects seized anywhere in the world could be consigned. We share that concern. International indignation about Guantanamo has focused not on the facility’s location but at what went on there: prolonged detention without due process and cruel treatment of inmates. Similarly serious allegations have been raised about Bagram.

The Obama administration has announced new procedures by which inmates at Bagram can challenge their detention, including the appointment of “representatives” (not lawyers) to assist them in making their case. They also will be able to call witnesses in their defense and present “reasonably available evidence.”

These measures are welcome but don’t go far enough. Inmates in U.S. custody, including Afghan citizens, should have the assistance of lawyers in petitioning for release. Detainees seized far from the battlefield should be taken into American custody, where they should be tried as terrorists, with all the protections and avenues of appeal available to criminal defendants. Bagram isn’t Guantanamo and may require different means to the end of providing due process. But it’s the end that counts.