Presidential doublethink in the Bagram habeas corpus case 

On Friday, the Washington D.C. Circuit Court of Appeals ruled that detainees at Bagram Air Force base in Afghanistan do not enjoy rights of habeas corpus under United States law and cannot petition civilian courts for release.

Hailed Monday in the Wall Street Journal as “a joint triumph in the war on terror” for President Obama as well as the preceding Bush Administration, the unanimous opinion distinguishes between Guantanamo Bay and the active war zone that is Afghanistan.

Of course, support of such a decision by the government exposes the Obama Administration to charges of hypocrisy. Tina Foster, a lawyer for the detainees, made such a complaint. “The thing that is most disappointing for those of us who have been in the fight for this long is all of the people who used to be opposed to the idea of unlimited executive power during the Bush administration but now seem to have embraced it during this administration,” Foster told The New York Times.

Foster’s irritation notwithstanding, Judge Sentelle invoked judicial precedents dating back to World War II. Writing the unanimous opinion, Sentelle noted that the writ does not extend to “confinement in an active theater of war in a territory under neither the de facto nor de jure sovereignty of the United States and within the territory of another de jure sovereign.”

Praising the decision as a “bipartisan show of judicial deference” to executive war powers, the Wall Street Journal treats this habeas corpus case as a conflict between the constitutional powers of the judicial and executive branch, which might be a mistake. No doubt a ruling in favor of the detainees would have inspired loud outcry against liberal judicial activism, but the appellate decision enables congressional evasion of responsibility on this matter.

Article One of the Constitution delegates to Congress the power to suspend habeas corpus, and then only “when in Cases of Rebellion or Invasion the public Safety may require it.” During the Civil War, Abraham Lincoln sparked controversy with his suspension of habeas corpus, but succeeded in creating a precedent for such an expansion of executive war powers.

Remember, though, these are war powers. Suspension of habeas corpus is acceptable only insofar as it furthers the effort to restore order. Refusing to acknowledge that there is a war while simultaneously deploying extreme executive power, the Obama Administration undermines its own political position.

Congress could resolve this question by designating these terrorist detainees as enemy combatants, but that would vindicate President Bush’s prosecution of the war and demonstrate the political opportunism of Democrats who took advantage of the war’s unpopularity to come to power.

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