Pushing Back On A Runaway Executive

The New York Times editorial board steps up with an excellent editorial about the White House's duplicity on Bagram Air Force Base.

The Obama administration is basking in praise for its welcome commitment to shut down the American detention center at Guantánamo Bay. But it is acting far less nobly when it comes to prisoners held at a larger, more secretive military detention facility at Bagram Air Base in Afghanistan.

In February, the new administration disappointingly followed the example of the Bush White House in opposing judicial review for prisoners who have been indefinitely detained at Bagram without any charges or access to lawyers. The administration has now added to that disappointment by appealing a new federal court ruling extending the right of habeas corpus to some Bagram detainees.

Bagram differs from Guantánamo in that it is located in an active theater of war. Historically, habeas corpus has not extended to detainees held abroad in zones of combat. But the evidence suggests it was the prospect that Guantánamo detentions might be subject to judicial oversight that caused the military to divert captives to Bagram instead [...]

In the absence of a fair review process that complies with international and military law, there is no reason to feel confident that everyone detained at Bagram deserves to be there. The administration should focus on putting such a process in place, instead of wasting its energies in an appeal that simply recycles extravagant claims of executive power and perpetuates the detention policies of the Bush administration.

I think the boldfaced paragraph is the important one here, actually. The Bush Administration set up Bagram to be the next Guantanamo as a reaction to the series of court battles they were losing. By defending the practice, Obama is shielding the previous Administration from their own culpability in indefinite detention and acting in contravention of court-ordered mandates, as has disappointingly become standard practice.

Meanwhile, Greg Sargent reports that the White House has no opinion on legislation that would significantly constrain the ability for the executive to use the state secrets privilege, legislation that was sponsored by then-Senator Joe Biden and then-Senator Hillary Clinton. The Congress needs to assert itself and check the runaway executive here.