Among the criticisms leveled against the George W. Bush administration was its handling of enemy combatants in the wake of the Sept. 11, 2001, terrorist attacks. The Bush administration argued that Guantanamo detainees -- most of whom were captured abroad in the Middle East and south Asia -- did not have the right to habeas corpus.
A Latin phrase, habeas corpus means a prisoner's right to challenge his or her detention in a court of law. It's part of Article One, Section 9 of the U.S. Constitution, which reads, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” On a few occasions this writ has been suspended. President Abraham Lincoln famously suspended it during the Civil War. President Ulysses S. Grant also suspended
the writ in nine South Carolina counties while combating the Ku Klux Klan during Reconstruction.
The Bush administration did not suspend habeas corpus but argued that it did not apply to enemy combatants kept at the Guantanamo Bay detention facility because they weren't U.S. citizens. The United States Supreme Court did not agree and in 2004 found that Guantanamo detainees had the right to challenge their detention. Congress responded with legislation, most notably the Military Commissions Act of 2006, that again took these rights away. In June 2008 the Supreme Court declared certain provisions of the Military Commissions Act unconstitutional and in doing so reasserted Guantanamo detainees" rights to habeas corpus.
"This is an important step toward re-establishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus,” said
then candidate Barack Obama after the 2008 decision. "Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.”
At this point, it seemed to us that the promise was made moot before Obama was elected. But civil rights groups say that detainees at Bagram Air Force Base in Afghanistan should also have the right to challenge their detention. The detention facility at Bagram holds more than 1,000 enemy combatants, almost 10 times as many as Guantanamo Bay.
In 2009, a district court ruled
that detainees at Bagram had the right to challenge their detention. The Obama administration's Department of Justice challenged
this ruling, and in May 2010, a federal appeals court in D.C. ruled
in the government's favor.
The Obama administration argued in in a 2009 brief to the U.S. Court of Appeals for the District of Columbia that Bagram exists in an active conflict zone, and therefore the same habeas corpus rights do not apply do the detainees. "(F)ederal courts have never before in this Nation's history granted what petitioners now request: judicial review of military detention operations in an active theater of war,” reads the brief.
Civil libertarians say that Bagram functions much like Guantanamo, so prisoners should have the same rights. "In key ways, Bagram has become the new Guantanamo, except with hundreds more prisoners held indefinitely, and with less due process,” said Hina Shamsi, Director of the National Security Project at the American Civil Liberties Union.
The administration has adopted Detainee Review Boards, which provide a process for Bagram detainees to challenge their detention. Human and civil rights groups have criticized these review boards for a number of reasons. These groups find the review process insufficient because detainees often can't see the evidence against them, and they're represented by military officers, not lawyers.
But not everyone agrees with that.
It would seem, based on the facts, that President Obama broke his promise. Not necessarily according to Benjamin Wittes, Senior Fellow and Research Director in Public Law at the Brookings Institution. Wittes argues that, although Obama's supporters may be dismayed by his administration's reluctance to expand these rights to Bagram detainees, the fact remains that these detainees never had habeas corpus rights to begin with. Thus, there is nothing to "restore.” The situation for detainees held at Guantanamo is different, since the Supreme Court ruled that they had habeas corpus rights, but then Congress stripped them of this with the Military Commissions Act of 2006.
"Obama never had the chance to keep this promise because the Supreme Court beat him to the punch. He has, however, lived under the habeas regime the Supreme Court created and never complained about it; indeed, he has honored it. I would call this a promise mooted by external events, before he even took office,” said Wittes.
So where does this leave us? The restoration of habeas corpus rights for Guantanamo detainees occurred before Obama took office. Therefore, he can't lay claim to restoration as an accomplishment. At the same time, however, his administration hasn't ardently tried to strip Guantanmo detainees of this right. This reality, combined with the circumstances surrounding Bagram, lead us to rate this promise as Compromise.