Bagram and Habeas

There is hardly an American who isn't familiar with the detention facilities at Guantanamo Bay, but what is lost on many Amercans is the fact that our government has maintained since 2002 a larger and drastically more secretive detention program in Bagram, Afghanistan (via Andrew Sullivan):

The incoming Obama Administration says it wants to shut down the U.S. military prison at Guantánamo Bay. But even if Guantánamo closes, the controversial U.S. practice of jailing suspected al-Qaeda militants and other terrorists indefinitely won't end, because such detentions continue on an even greater scale at the U.S. military base at Bagram, Afghanistan, 40 miles north of Kabul. Approximately 250 detainees are currently being held at Guantánamo; an estimated 670 are locked up under similar conditions at Bagram.

The Obama transition team has declined to comment on whether U.S. detention policy for enemy combatants will change with a new Administration. Nevertheless, the U.S. military is building a new prison for what it calls "unlawful enemy combatants" at Bagram that won't be finished until Obama is well settled in the White House. "The Obama Administration is inheriting not so much a shrinking Guantánamo as an expanding Bagram," says Tina Foster, executive director of the International Justice Network, a nonprofit legal group based in New York City.

Bagram, operating on a lower profile, is not the subject of scripted tours for members of the press and politicians. In fact, the detention facilities at Bagram operated largely under the radar until stories about the torture and death of detainees at the base raised the program's profile. Now though, a federal court will begin considering whether the right of habeas extends to prisoners being held at Bagram (via Constitutional Law Prof Blog):

The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo from the courts’ review. But the Justice Department will be making an argument that none of those rulings has any application to the prison at Bagram Airfield, and that, therefore, a federal judge should dismiss legal challenges by Bagram detainees by finding that U.S. courts have no jurisdiction over them.

Countering that argument, lawyers for detainees in four Bagram cases will be contending that, not only does the Boumediene decision reach that far, so does a decision the Supreme Court announced on the same day as Boumediene – Munaf v. Geren, extending habeas rights to a U.S. military facility in Baghdad, Iraq.

Of course, that decision extended only to U.S. citizens being held, whereas the detainees at Bagram are foreign nationals of the sort being held at Gitmo.

Of course, the real question is whether the incoming Obama administration will see fit to defend the Bush administration's stance in regards to Bagram, or will rather seek to close down or otherwise minimize the facility in some way. As the Time article above indicates, Obama has thus far given no indication of his intent.