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Obama Bungles Bagram

The Obama administration could have just let this one go.

U.S. District Court Judge John D. Bates’ April 2 ruling that three detainees — two from Yemen, one from Tunisia, all held by the U.S. military at the Bagram air base in Afghanistan without charge for more than six years — have a right to challenge their detention in U.S. courts was crafted narrowly on purpose. The Obama administration did not have to appeal it and open itself up to the charge that it was making the same arguments that the Bush administration did — that prisoners in the war on terror can be held indefinitely with no constitutional rights whatsoever.

Yet on Friday, the Obama Justice Department did just that, filing documents with the federal court indicating that it plans to appeal the judge’s ruling, because allowing these three men to challenge their detention would “impose serious practical burdens on, and potential harm to, the Government and its efforts to prosecute the war in Afghanistan.”

Bagram is “in a theater of war where the Nation’s troops are in harm’s way,” wrote Justice Department lawyers, and responding to a possible deluge of future petitions from prisoners at Bagram “would divert the military’s attention and resources at a critical time for operations in Afghanistan, potentially requiring accommodation and protection of counsel and onerous discovery.” This would cause “significant and irreparable burdens” that would risk “injury to the public interest.”

In other words, it would be really inconvenient right now for the U.S. military to have to defend holding prisoners for years without charge or trial, and it has more important things to do, like fight a war on terror.

Doesn’t that sound eerily familiar? Isn’t that the same argument the Bush administration used when it said that prisoners at Guantanamo Bay didn’t have habeas rights? And wasn’t it President Obama who said that he rejects “a false choice between fighting terrorism and respecting habeas corpus?” So where did that guy go?

Glenn Greenwald at Salon provides some choice Obama quotes on this that illuminate what sure looks like some kind of ugly hypocrisy going on here.

Then again, Justice Department spokesman Dean Boyd told The Washington Post Friday that the Obama administration might still change its mind on Bagram, depending on the outcome of its comprehensive review of detainee policy, to be completed in July.

“While that review is pending, we concluded that it was necessary to appeal this ruling,” Boyd said. So maybe Obama is being cautious rather than unprincipled.

Obama may have all sorts of good, logical reasons why he doesn’t want to grant all 600 prisoners at Bagram habeas corpus rights immediately, particularly since those numbers are likely to rise under his new strategy for Afghanistan. But that’s not what Bates’ ruling was about. It applied only to three men captured outside of Afghanistan and brought to Bagram. The government has refused to say publicly how many more prisoners at Bagram are in the same situation. But it’s difficult, as Bates found, to distinguish the situation of these prisoners from those who’ve been held for years at Guantanamo Bay.

Obama said repeatedly and unequivocally as a as a senator and as a presidential candidate that he thought Gitmo prisoners deserved the right to challenge their detention in a U.S. court, because the procedures offered to them at Guantanamo were woefully inadequate.

In his ruling, Bates, a conservative Bush appointee, concluded that the procedures at Bagram were significantly worse — specifically, “less sophisticated and more error-prone.”

Why defend those procedures now? It may simply be that Obama has not been paying attention to Bagram. After all, the president is dealing with a failing economy, multi-trillion dollar budgets and, in recent days, a bizarre stand-off with Somali pirates. But ignoring Bagram is already coming back to bite him. We’ve called Bagram “Obama’s Gitmo,” and today the New York Times editorial board is calling it “The Next Guantanamo.” That’s hardly what Obama needs right now.

Friday’s filing seems to have the mark of Eric Holder, his attorney general, who has years’ worth of experience taking some unseemly positions on behalf of major corporations.

But defending the United States of America isn’t the same as defending Chiquita, and Americans elected Obama in part because he promised that in his administration, principles wouldn’t be so easily trumped by expediency.

*This post has been updated to note today’s New York Times editorial.

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