Obama backs Bush policy on denying detainee rights

The Obama administration, siding with the Bush White House, contended Friday that detainees in Afghanistan have no constitutional rights.

In a two-sentence court filing, the Justice Department said it agreed that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention. The filing shocked human rights attorneys.

"The hope we all had in President Obama to lead us on a different path has not turned out as we’d hoped," said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Airfield. "We all expected better."

The Supreme Court last summer gave al-Qaida and Taliban suspects held at the U.S. naval base at Guantanamo Bay, Cuba, the right to challenge their detention. With about 600 detainees at Bagram Air Base in Afghanistan and thousands more held in Iraq, courts are grappling with whether they, too, can sue to be released.

Three months after the Supreme Court’s ruling on Guantanamo Bay, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed by relatives on their behalf since they had no way of getting access to the legal system.

The military has determined that all the detainees at Bagram are "enemy combatants." The Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.

After Barack Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush’s legal argument. Justice Department spokesman Dean Boyd says the filing speaks for itself.

"They’ve now embraced the Bush policy that you can create prisons outside the law," said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.

The Justice Department argues that Bagram is different from Guantanamo Bay because it is in an overseas war zone and the prisoners there are being held as part of a military action. The government argues that releasing enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.

The government also said if the Bagram detainees got access to the courts, it would allow all foreigners captured by the United States in conflicts worldwide to do the same.

It’s not the first time that the Obama administration has used a Bush administration legal argument after promising to review it. Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the state secrets privilege, a separate legal tool it used to have lawsuits thrown out rather than reveal secrets.

The same day, however, Justice Department attorney Douglas Letter cited that privilege in asking an appeals court to uphold dismissal of a suit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations that tortured them.

Letter said that Obama officials approved his argument.


  1. Carl Nemo

    What people fail to realize is if our government endorses such treatment of detainees in a far off land, then when the balloon goes up in this country due to another terror attack, engineered or otherwise, they’ll use the same excuse on our citizenry in terms of the right of habeas corpus with a fair hearing by our “peers” and not a military kangaroo court proceeding aka a “tribunal”…!

    Carl Nemo **==

  2. gazelle1929

    Certainly the detainees have Constitutional rights. But not under our Constitution. The Constitution of Afghanistan would apply. Am I the only one who thinks this borders on being a no-brainer?

  3. griff

    I think that a US military base would be considered sovereign American territory, therefore the Constitution would apply, as well as any treaties agreed to like the Geneva Conventions.

  4. Carl Nemo

    Well I guess we all know by now that American citizens have a snow balls chance in hell for a reaffirmation of the right habeas corpus, a reinstitution of posse commitatus, the rescinding or consitutional friendly modification of the Patriot Act and even the closing of GITMO.

    Evidently Obama is a mere feelgood “judas goat”; ie., a “strawman” groomed by the shadowy elites that have been working feverishly to turn the U.S. into a “banana republic” with their pre-groomed handpicked shills holding office.

    Carl Nemo **==

  5. gazelle1929

    Territoriality applies only to embassies. We don’t even had a SOFA with Afghanistan, and some troops serve directly under US control and some under control of the UN. I predict that the US Supreme Court will say that the US Constitution does not cover those held in Afhanistan.

  6. griff

    I wouldn’t doubt that the SC would make that determination. As far as I’m concerned, if an American flag flies overhead, it is to be considered American territory.

    I would think that the detainees would at the very least be covered under the Geneve Conventions, if not the Constitution. Under the Geneva Conventions the detainees would be treated in a humane manner until the war is over, and then either be tried for war crimes or released.

    But that’s where things get fuzzy. They’re not considered POW’s but detainees, which Bush has argued that they are not guaranteed rights under the Conventions. And since this “war on terror” may never end, therein lies the government’s argument that they need to be treated differently than POW’s.

    The US has unilaterally ignored the Geneva Conventions using symantical doublespeak. Simply using a different term for those captured during this “special war” means that new rules need to dreamed up, and that long-standing rules of war and POW treatment can be ignored.

  7. almandine

    John McCain was able to run for Pres because he was born on a US military base in the Panama Canal.

    Too bad The Bama can’t say as much.

  8. adamrussell

    The declaration of Independance states that
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

    It does not say that only US citizens have rights. A decent respect for the rules of honor and justice would indicate that all human beings deserve basic human rights among which certainly is the right to a trial. Without a trial no one can know if the prisoner is being rightly held or is merely a political prisoner.

    This is not to say they have every right of an american citizen, but that there are basic human rights which any honorable and decent society would respect.

  9. gazelle1929

    How many POWs during WW II were granted the right to a trial to determine whether their captivity was “Constitutional”?

    How many men, women, and children were held in involuntary servitude between July 4, 1776 and December 18, 1865?

    Where was the Declaration of Independence when Dred Scott was pursuing his case through the courts?

    The Declaration of Independence has absolutely no legal effect either within or without the United States.

  10. almandine

    AND, the notion that documents of reference have jurisdiction over all is the root problem.

    If you can’t argue for basic due process, how can you call yourself an American, all things considered?

  11. Warren

    Due Process doesn’t uniformly hold even in the United States. Crossed a border lately? You have no ‘Constitutional Rights’ at the border, even as an American citizen.

    The problem really is two-fold. The first is what to do with those who are incarcerated. What to do with them? In many, maybe most cases they’d be worse off being released to officials of their own home countries. And, some of them really are ‘bad guys’. We have few US criminal laws to deal with the actions of an enemy soldier on the battlefield.

    The second issue is precedent. Whatever ‘Constitutional’ rights are given to foreign nationals on a foreign battlefield in a war situation will have untold unintentional consequences. Foreign nationals on a foreign battlefield in a war don’t just become American citizens with the full rights of citizens because they happened to be captured. That is why the Supreme Court has been relatively silent on the issue.

    All that said, yes we do need to find a solution. But it’s complex.


  12. almandine

    Small minded fools.

    Either human rights stand outside govt policies or they are given through govt largesse. You pick… but let’s hear you justify it.

  13. Warren

    I agree with you. Human rights are God-given (whatever your perception of God). Government can only protect them or deprive them. Mostly it is the latter.


  14. gazelle1929

    “Small minded fools”??


    Back to ad hominem arguments again, huh? I will debate and discuss, but not when you pull this stuff.

  15. Warren

    ITWOTLRRTYGOA means nothing to me if my feeble brain is incapable of deciphering it. Here and here are lists of net and SMS text acronyms for those like me who are clearly less clever.


  16. gazelle1929

    In The Words Of The Late Ronald Reagan, There You Go Again.  Sorry I added the second O.


    That was probably what threw you (VERY BIG GRIN!)

  17. woody188

    I never understood how they could be so afraid of people that they have locked up that they would need to treat them as less than human. I suppose this is what happens when you let chicken hawks run your foreign policy. Real free men aren’t afraid of POW’s or what they might say.

    Seems the policy is more to suppress the fact that most of the detainees have been systematically tortured than for any other reason.

  18. Carl Nemo

    It was my perception based on Obama’s campaign trail promises that he would be the one to make decisions concerning how our military was deployed and that he would no longer leave it up to his theatre commanders and Pentagon apparatchiks to continue to drag our nation on a “Nantuckett sleigh ride” to the bottom in the Middle East. Seemingly he’s allowing his National Security Council with all its perma-hawks to continue this Middle Eastern, no-win debacle.

    OBL is dead! Saudi intelligence services passed the info on to the French intelligence directorate about three years ago. He died of complications associated with typhus shortly after the Tora Bora cave campaign which basically allowed him and his entourage to escape. The story was quashed and discredited by our MSM or simply ignored for the most part.

    They always drag out the same old photo’s of him and another guy shuffling through the rocky terrain hefting AK’s over their shoulder. We only hear threats from his surviving aged underlings on occasion. The CIA and its duty mouthpiece, the National Security Council are continuing to use the mythos of this guy as a “scare bear” tactic to keep us involved in these Middle Eastern adventuristic wars for the benefit of the MIC and the host of camp-following, “blood-sucking” contractors that have been bleeding this nation white.

    I advise people to rent the movie “Iraq for Sale”. It’s an eye opener for sure and rest assured it’s soon to become “Afghanistan for Sale” courtesy of Halliburton and a host of these blood-sucking criminally disposed civilian sector freebooters.

    We shouldn’t even be involved with having to discuss the Constitutional rights of Afghani internees. Instead we should be hearing about Obama’s accelerated time table for us to leave both Iraq and Afghanistan asap!

    It seems our nation has been commandeered by crazies and outright thieves for quite some time and the ballot box is not going to address this seemingly terminal situation…! : |

    Carl Nemo **==

  19. gazelle1929

    If he’s dead where are those audio recordings being delivered from?  Those recordings that have been independently verified as being in ObL’s voice and referring to recent historical events. 

    Just wondering, you understand.

  20. Carl Nemo

    Hi Gazelle1929,

    Both the CIA and DIA (Central & Defense Intelligence Agencies) have access to professional "Dreamworks" capable photomorphing and audio morphing technology.  They can virtually create anything visually, audibly or both even with the necessary amateurish grainy or aged look to the product.  When you operate at that level, no expense is spared when it comes to creating whatever is necessary to sway the masses for the benefit of leaders with a less than sterling agenda such as the Bushistas.

    After the report of OBL’s death was released, Michael Hayden head of the CIA instantly discredited the report and within one hour the Saudi’s backed off on their claim as well as the French newspaper that broke the story.  French intel made a serious effort to find the intel leak, but to no avail.  In other words they got their marching orders from the shadowy puppet masters that orchestrate this global social psycho-drama as I call it.


    Rest assured that Bushco’s entire war-making agenda was based on the capture of OBL with evidently Iraq’s oil  and  Saddam’s track record concerning WMD’s as an excuse for us to engage in the Middle East.  With a confirmed death of OBL it would cause the American public to begin to lose interest in Bushco’s war far more prematurely to his exit from office precluding evermore ill-gotten lucre making its way into the MIC’s coffers.   

    I’ve listened to the most recently released recordings of OBL and I’m not impressed with the product or its alleged confirmation of authenticity by so-called experts.  With the current state of the art vidcams available to any citizen on planet earth at this time, why do they foist off such grainy, noisy, poorly produced material?  If OBL and his entourage were shot in HD or simply hi-res color as they should be; it would create greater  fear in the unwashed masses, but instead they opt for seemingly more believable clips that look like they were shot with a 50 year old 8mm camera.  Why so?  Because there’s no flesh and blood OBL in circulation to create such material and their phony dupes can never exceed the quality of the original image samples with which they have to work from.   OBL has been a CIA asset since his days as head of the Mujhadeen Holy Warriors fighting the Russians in the 80’s.  He was also our ally in fighting the Taliban in Afghanistan, but eventually went rogue and became problematical for the company and his usefulness to the West.   I firmly believe he’s dead!

    OBL has now become a useful mythos for our out of control government to continue to bleed this nation ever whiter.  These people have no limits or shame when it comes to their uber greed and quest for evermore power … : |

    Carl Nemo **==

  21. griff

    “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.” – Thomas Paine, 1791

  22. bodeen

    I’m not taking up for these terrorists, but they should have access to courts. This is just plain wrong.

  23. adamrussell

    We dont even know which ones are terrorists if they dont have trials. Thats what trial means. Does anyone *really* trust the cia to decide guilt and innocence?
    And on a slightly less serious note:
    How is OBL’s driver considered a terrorist? Sure he might be guilty of driving the enemy around to meetings. Thats not terrorism. Is his cook a terrorist too? How about the teenager that takes care of his kids while he is away? Is she a terrorist too?

  24. Carl Nemo

    Thanks griff for the superb, spot-on quote by Thomas Paine.

    It’s too bad our leaders and their high level advisers have neither read or have kinship with Paine’s high order sentiments… : |

    Carl Nemo **==

  25. griff

    It would be a pretty safe bet that they haven’t read a certain document that they take an oath to uphold and obey, either.