When Barack Obama was elected the US’s 44th President opponents of the Bush Administration’s unrelentingly cruel detention of so called enemy combatants at Guantanamo Bay and other jails, collectively cried with joy. President Obama promised a winding down of Guantanamo Bay and more humane and fair treatment of those rounded up and captured in Afghanistan and other parts of the globe by the Americans since 9/11.

But are things really different? Last Friday, the Obama Administration took steps to prevent Judge John Bates of the US District Court in Washington from going ahead with hearing a challenge by four men who have been held for six years as ‘enemy combatants’ at the Bagram Air Base in Afghanistan.

A week earlier, Judge Bates, in a 53 page ruling, said that Fadi al Maqaleh and Amin al Bakri, who are Yemeni citizens, Haji Wazir, an Afghan citizen, and Al-Najar, a citizen of Tunisia, were entitled to bring a habeas corpus challenge against their continued detention by the US. These men all contested their enemy combatant status and none of them was captured in Afghanistan but were simply brought there to be detained. According to Judge Bates, these four men are in a similar, if not worse position, than those held at Guantanamo Bay who also successfully challenged their detention in a US Supreme Court case called Boumediene;

They are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention…these petitioners have been determined to be “enemy combatants,” a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received.

The Obama Administration’s response to Judge Bates’ ruling is one of extraordinary caution, and at its worst could be said to be putting process ahead of real human rights concerns. The Department of Justice’s Good Friday response to Judge Bates’ ruling argues that because President Obama has ordered a ‘comprehensive review’ of detention of persons in anti-terrorist or war activities, these four men can wait until that process is completed — at this stage by July.

And in language reminiscent of the type used by the Bush Administration lawyers, the Department of Justice argues that, “the extensive harms to the Government and the public interest involved in further proceedings envisioned by the Court in these cases, and the likelihood of respondents’ success on the merits of appeal, strongly warrant a stay pending appeal.”

In addition the Obama Administration is appealing against Judge Bates’ ruling and has given the case top priority so the appeal can be heard quickly.

It would be unfair to characterise the Obama Administration as a carbon copy of its predecessor on the matter detention policies, but as this case illustrates it is certainly not keen for the courts to hand victories to people it has locked away over the past few years. On that issue it shares a similar view to that held by President Bush’s lawyers.

Peter Fray

Fetch your first 12 weeks for $12

Here at Crikey, we saw a mighty surge in subscribers throughout 2020. Your support has been nothing short of amazing — we couldn’t have got through this year like no other without you, our readers.

If you haven’t joined us yet, fetch your first 12 weeks for $12 and start 2021 with the journalism you need to navigate whatever lies ahead.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW