Published on Politico.com.
President Barack Obama pledged to close the Guantanamo Bay detention facility during his campaign and again after his Inauguration.
For many voters, this signaled an end to the policy of indefinite detention, one questionable legal legacy of the Bush administration.
Given this inferred promise, it looks bad enough that the Obama administration has announced plans to continue to hold indefinitely 48 current Guantanamo detainees.
But even worse, the administration is reportedly considering an international expansion of the practice of indefinite detention.
There is already a classified draft of the policy that lays out rules permitting suspected terrorists captured in the future to be detained indefinitely without charge and interrogated in overseas prisons, according to the Los Angeles Times.
This report becomes all the more troubling in light of a D.C. Circuit Court of Appeals decision Friday.
The court decided in favor of the administration when it ruled that detainees held at Bagram Air Field in Afghanistan have no right to challenge the lawfulness of their detention.
According to the court, this ruling even covers detainees captured far from any war zone and brought to Bagram for detention.
But we’ve been down this road before. And it did not end well.
Obama, with his post-inaugural announcement, seemed to recognize that detention without charge gives our enemies a recruiting tool, alienates our allies and stains our human-rights record.
But why close Guantanamo if other overseas facilities — like the Bagram Air Field — can fill the same role?
This sort of indefinite detention is even worse than at Guantanamo, for the Supreme Court has ruled that Guantanamo detainees have the right to challenge their detention in court. They have done so, successfully, by the dozen.
The outcomes of these cases — the vast majority decided in the detainee’s favor — reveal that the government’s detention decisions made in the absence of judicial review can sweep in innocent individuals.
Friday’s ruling, however, means that these same procedural safeguards — the ones that the Supreme Court ruled as necessary at Guantanamo and that have identified cases of unlawful detention — do not apply at Bagram.
It is this unreviewable detention power that Guantanamo was originally created to permit. And it is this same power that the Obama administration seemed to disavow when it announced Guantanamo’s closure as a triumph of human rights and the rule of law.
That promise now rings hollow.
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