Sentelle has just overturned an earlier court decision by District Judge John D. Bates to grant some basic rights to three foreign prisoners — Redha al-Najar, a Tunisian seized in Karachi, Pakistan in 2002, Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand in 2003, and Fadi al-Maqaleh, a Yemeni seized in 2004 — who were seized outside Afghanistan and transferred to Bagram via a number of secret CIA prisons, the Court of Appeals reversed a ruling last March by District Judge John D. Bates. Bates had ruled that these prisoners had the right to ask why they were being held indefinitely. They were being held at Bagram Air Base in Afghanistan, in a manner that Bates had called a "Black Hole."
What happened after this is as follows.
As soon as Judge Bates delivered his ruling last March, the government announced that it would appeal, and, in September, submitted a 76-page argument (PDF), which, as a sweetener to the Court of Appeals, also addressed a problem that Judge Bates had highlighted, even though it was beyond his remit to suggest any remedy.
The problem highlighted by Judge Bates was the review process at Bagram, and in making his ruling about the foreign prisoners rendered to the prison, he had compared it unfavorably to the review process in operation at Guantánamo, noting that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram was both "inadequate" and "more error-prone" than the Combatant Status Review Tribunals at Guantánamo (which were condemned as nothing more than a rubberstamp for executive detention by former officials who worked on them, including, in particular, Lt. Col. Stephen Abraham), and concluding that the US military’s control over Bagram "is not appreciably different than at Guantánamo."
In an analysis of the UECRB process, Judge Bates noted that prisoners were not allowed to have a "personal representative" from the military in place of a lawyer (as at Guantánamo), and were obliged to represent themselves, and also explained, "In addition, Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an "enemy combatant" designation — so they lack a meaningful opportunity to rebut that evidence." He also noted that, unlike at Guantánamo, where Administrative Review Boards were convened on an annual basis, "Bagram detainees receive no review beyond the UECRB itself."
It was no wonder that Judge Bates concluded that this process "falls well short of what the Supreme Court found inadequate at Guantánamo," but in highlighting the review process at Bagram, he also touched on the biggest problem of all — that everyone at Bagram was held with less rights than the largely powerless "enemy combatants" of Guantánamo, and that they were, in particular, not being held as prisoners of war according to the Geneva Conventions.
This would have involved them being screened on capture, to determine whether they were combatants or civilians seized by mistake, and would then have involved them being held unmolested until the end of hostilities. It certainly would not have involved them not receiving adequate screening on capture, and then being subjected — at some undetermined point after capture — to a review process conjured up out of thin air.
When the government appealed Judge Bates’ ruling, the Justice Department’s submission included an attachment from the Defense Department, announcing that the UECRB process at Bagram was being replaced with a system that closely matched the tribunal process at Guantánamo — the one that, as Judge Bates noted, was "found inadequate" by the Supreme Court.
Under this new system, prisoners are assigned personal representatives (as at Guantánamo), are allowed to call witnesses (as at Guantánamo, although not a single witness from outside the prison was ever located by the officials in charge), and have their cases reviewed every six months. This certainly addressed the main problems identified by Judge Bates, although, as I explained at the time, by importing the CSRT process to Bagram and refusing to reinstate the Geneva Conventions, Obama and his administration "have, essentially, accepted the Bush administration’s aberrant changes regarding the detention of prisoners in wartime as a permanent shift in policy, with profound implications for the Conventions in general."
On Friday, sadly, none of these concerns registered with the three judges responsible for reviewing the government’s appeal. Instead, Chief Circuit Judge David B. Sentelle, supported by Senior Circuit Judge Harry T. Edwards and Circuit Judge David S. Tatel, discarded Judge Bates’ ruling, after disagreeing with his interpretation of three tests required to ascertain the extent to which Boumediene applied beyond US territory.
This account, written by Andy Worthington, author of the book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, goes on to highlight some of the key differences between Bates and Sentelle in so far as they interpret the "three tests" for "the process for deciding who is to be detained, the nature of the site where detention occurs, and practical problems of having courts decide the validity of detention."
Essentially, what Sentelle and his colleagues concluded is that because Bagram is in Afghanistan, which is a theater of an ongoing war, the "right of the courts to interfere was not appropriate," and "the balance of the argument therefore tipped "overwhelmingly" in the government’s favor." This argument had been rejected by Bates, who reasoned that the "prisoners were specifically transported to Bagram from other locations."
In other words, these prisoners - who have yet to be charged or tried and who may or may not be guilty of anything - were placed in a location by our government which then argued, successfully, that because of their status as prisoners within this location, their rights to justice should be severely limited.
Worthington concludes by writing that
Alarmingly, then, the prisoners at Bagram may have just found themselves consigned once more to the legal black hole that the Bush administration intended for them when they were first seized, with no hope of ever challenging the basis of their detention. For anyone who has understood the reasons behind Judge Bates’ ruling last March, this is disgraceful, and those who defend it should recall the words of the Supreme Court in Boumediene, when the justices’ majority opinion made clear how habeas rights were a necessary check on the kind of unfettered Executive power that the Court of Appeals has just attempted to justify at Bagram. "At its historical core," the opinion stated, "the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest."
If this ruling is allowed to stand, the Supreme Court will have abdicated its responsibility to ensure that no one can be kidnapped anywhere in the world and held indefinitely, without charge or trial, and with no way of challenging the basis of their detention in a satisfactory manner, either in Bagram, or, for that matter, in any other US facility in a foreign land. Moreover, the Bush administration, from beyond the electoral grave, will have won its most significant battle, which was supposedly lost; namely, maintaining that people can, in fact, be seized anywhere in the world and held without any means of judicial review, and without the obligation to face either a criminal trial or detention as a prisoner of war according to the Geneva Conventions.
Back to Sentelle, the lead judge of this circuit court, and a reminder that this is someone who, when he gets a chance, puts his right wing, authoritarian political beliefs over and above the principle of justice. Is it any wonder that the reason he became a judge is that he was appointed by Ronald Reagan, a man who also whenever he got a chance, also put his own right wing, authoritarian political beliefs over and above the principle of justice.
This is, for example, the same partisan hack who voted to overturn the convictions of Oliver North and John Poindexter, for their Iran Contra crimes.
This is, for example, the same partisan hack who appointed his fellow partisan hack Kenneth Starr for his witchhunt of the Clintons.
This is, for example, the same partisan hack who enthusiastically supported the "Military Commissions Act" and its destruction of habeas corpus for enemy combatants; if you are David Sentelle and the government accuses you of a crime, you are guilty until you can prove innocence, rather than the other way around, and the government can throw up all sorts of roadblocks to prove your innocence. Unless, of course, you are someone like Ollie North. Then, of course, your innocence is fully presumed.
The man has no business wearing a judge's robe, and is a disgrace to our supposed rule of law.
And in the meantime, the Bagram prisoners remain in the black hole, without habeas rights, waiting for justice to be served.
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