The U.S. Detention System Since 9/11: A Conversation

As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Bagram prison in Afghanistan, and the future of habeas corpus.

This is the third installment in a three-part series. You can read the first two conversations here and here.  

Hafetz is the author of Habeas corpus after 9/11: Confronting America’s New Global Detention System. You can read the chapter Terrorism as Crime.

We hear much less about detention operations in Afghanistan than we do about Guantanamo, but there are still thousands of detainees in military custody in and around Bagram. 

Moreover, rumors about a secret Bagram prison — one where detainees are held in isolation and that is off limits even to the Red Cross — persist. 

What do we know about the state of American detention operations in Afghanistan, and what opportunities those detainees have to challenge the lawfulness of their detention?

—Emily Berman 

Bagram has always played second fiddle to Guantanamo in terms of focusing public attention on human rights abuses by the U.S. Government — even though, for many years, conditions at Bagram were worse.

Congress’s current proposal requiring the military detention of terrorism suspects goes beyond anything it has done so far, and represents an unprecedented militarization of the U.S. justice system.

Currently, there are many more prisoners at Bagram than Guantanamo, and some detainees at Bagram are held in secret — at least for limited periods of time. While conditions at Bagram, now known as Parwan, have improved, serious problems remain. Most importantly, detainees there are imprisoned without access to any court, whether U.S. or Afghan. Although the U.S. Supreme Court has recognized a constitutional right to habeas corpus review for detainees at Guantanamo, the Court has not extended that right to detainees at Bagram, and an appellate court has expressly rejected any such right. That Bagram is located in Afghanistan, where the U.S. remains involved in an armed conflict, admittedly complicates court review. But the alternative — holding prisoners at Bagram indefinitely based only on a military tribunal hearing — is worse.

The arguments for habeas review at Bagram will grow stronger if, as I suspect, the U.S. continues to hold at least some prisoners there even after troops withdraw and detention operations are turned over to the Afghan government. The continued detention of prisoners under these circumstances will make it more difficult to argue that Bagram is different from Guantanamo in any meaningful respect.

—Jonathan Hafetz

Another complaint, voiced by Republican lawmakers in the letter to President Obama raising questions about Warsame’s treatment, is that the administration’s actions “directly contradict pending legislation.” The pending legislation they refer to is the House version of the National Defense Authorization Act for FY 2012, which includes multiple restrictions on and requirements for the executive’s handling of suspected terrorists. Perhaps the most dramatic of these provisions requires that certain terror suspects be held in military detention and tried in military courts, rather than being held by U.S. law enforcement entities and tried in criminal courts. 

For a moment let’s leave aside the fact that the current Senate version of this bill does not include that provision, as well as the fact that the content of this “pending legislation” is likely to change before it reaches the President’s desk for signature. But regardless of whether this particular military-detention requirement is actually enacted, Congress has already imposed similar conditions. For example, there are restrictions regarding where and under what conditions the President may transfer detainees from Guantanamo, as well as restrictions on using Defense Department dollars to convert facilities on the U.S. mainland into terrorist detention centers. 

For many years, it seemed that Congress sat on the sidelines when it came to detention issues. What do you think about the ways in which it has decided to step in?

—Berman 

Other than passing the broadly worded Authorization for Use of Military Force just days after 9/11, Congress did little on detention issues until 2005. Since then, Congress has intervened several times, mostly in counter-productive, even destructive ways.

In 2005, and again in 2006, Congress sought to strip the federal courts of jurisdiction to consider the habeas petitions of Guantanamo detainees — an effort the Supreme Court ultimately ruled unconstitutional.

Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.

More recently, Congress effectively killed Obama’s plan to close Guantanamo, by prohibiting the use of funds to transfer Guantanamo detainees to the mainland United States, as well as restricting the president’s ability to transfer Guantanamo detainees to another country.

The current proposal requiring the military detention of terrorism suspects goes beyond anything Congress has done so far, and represents an unprecedented militarization of the U.S. justice system. It’s bad enough that the government need not prosecute terrorism suspects and provide individuals in U.S. Custody with a fair trial. This proposal would actually prevent the president from doing so in many cases.  

Congress’s actions underscore the degree to which the debate over counter-terrorism policy has been distorted by fear and hijacked by political grandstanding. Ten years after 9/11, we can see how much the policies underlying Guantanamo not only are becoming normalized, but also are expanding in new and radical directions.

—Hafetz

That point brings me to my last question, Jon. As we approach the tenth anniversary of 9/11, it seems that many of the rules surrounding habeas — where geographically does it extend, what categories of individuals may lawfully be detained, how definitively must the government prove a particular detainee’s connection to Al Qaeda or its affiliates — remain unanswered. 

And this past term, the Supreme Court declined to exercise jurisdiction over any of the multiple detention-related cases that came before it. So the Court seems to have stepped out of the detention business, at least for the moment. At the same time, the situation in the world is getting more complicated. Afghanistan is less likely to serve as a terrorist base of operations, but other failed states like Somalia and Yemen seem to be vying to take its place. Al Qaeda proper seems to be in decline, but affiliated or copycat groups interested in attacking U.S. interests continue to pop up. 

As this complexity evolves, and in the absence of clear rules set forth by the Supreme Court, where do you think the future of habeas corpus is headed, and who is going to be writing the rules?    

—Berman

It does seem like we’re entering a new chapter in the future of habeas corpus, with the tragic events of 9/11 now almost a decade behind us. While the legal battles in the “war on terror” have not always produced clear answers, and many important issues remain to be decided, I think several important lessons emerge.  

Habeas, I believe, will remain relevant as we begin to focus on new questions, such as counter-terrorism operations in the Horn of Africa and Yemen. Despite its numerous shortcomings, habeas has proven one of the most important checks on executive power. It helped expose abuses at Guantanamo, enabled lawyers to visit the base and represent detainees, and provided some judicial oversight of what once had been a prison beyond the law.  

At the same time, the “war on terror” litigation has underscored the vulnerabilities of habeas and the limits of courts generally. Too often, it seems, the executive was able to remain one step ahead of the “Great Writ,” evading accountability by transferring prisoners to new detention sites to which habeas did not extend or using other countries as proxies to mask U.S. control and influence. Judges, moreover, have too often interpreted the habeas right narrowly and deferred excessively to the government. We can see this in the D.C. Circuit’s recent rulings in the Guantanamo habeas cases, which sometimes seem little more than an exercise in rubber stamping executive power. 

—Hafetz