A federal appeals court in Washington today struggled with how to draw a line extending habeas rights to some prisoners captured abroad and not to others.
The Justice Department is fighting the extension of habeas rights to prisoners held at the Bagram Airfield detention center in Afghanistan. Last year, Judge John Bates of the U.S. District Court for the District of Columbia ruled in favor of three detainees whose circumstances, he said, justified access to U.S. courts to challenge continued detention.
Justice lawyers appealed the ruling, and today a three-judge panel—Chief Judge David Sentelle was sitting with Senior Judge Harry Edwards and Judge David Tatel—heard oral argument in the ceremonial courtroom. More than 150 spectators, including Assistant Attorney General Tony West, head of the Civil Division, attended the hearing.
Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.
In Boumediene v. Bush, the U.S. Supreme Court in 2008 granted habeas rights to Guantanamo prisoners. Those rights, Katyal said, have always flowed from the government’s sovereignty over a particular area. Allowing the courts to second-guess sovereignty decisions would be a destabilizing force in international relations, he said.
Tina Foster, executive director of the International Justice Network, who argued for the Bagram detainees, said the Justice Department’s position is one where “Boumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.
Edwards and Tatel were particularly interested in how to limit a ruling in favor of the detainees so that it would not extend habeas rights to other overseas military bases.
There were some humorous moments during the hour-long hearing.
Among them: Sentelle explained that he pronounces Boumediene as “Boo-mah-deen”—not the common pronunciation—because that’s the way he first heard the name pronounced.
When Katyal got up for rebuttal toward the end of the hearing, he didn’t make any additional argument. Why? He said he’d learned a lesson from the first go-around, when Sentelle interrupted him early on to say that he shouldn’t read argument to the court. Sentelle thanked Katyal.