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Send Them All to Bagram

And now for a moment of positive news in a series of often disappointing recent decisions about National Security and Foreign policy. In a unanimous ruling, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that foreign national detainees being held at the Bagram Theatre Internment Facility are not entitled to rights of Habeas Corpus.

This tracks back to a case from the Bush Adminstration, Boumediene v. Bush that essentially ruled that while detainees at Guantanamo were entitled to Habeas rights, the extension of those rights is dependent on where the detainees are being detained.

"(1)the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ."

This ruling is consistent with the often stated opinion of Professor Jeffrey Addicott. Although written in February 2010 the points are still focused.

Under the rule of law associated with armed conflict, all al-Qa'eda and Taliban detainees are unlawful enemy combatants or "unprivileged enemy belligerents", as the recently passed 2009 Military Commissions Act labels them. As such, these individuals are not entitled to Miranda rights, nor are they entitled to the special protections associated with prisoners of war. Under the law of war, the purpose of detaining these unprivileged enemy belligerents is to ensure that they do not return to join enemy forces and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorists' organizational infrastructure, financial network, communication system, weapon supply lines, and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy.

Lawyers may decide to debate this position and ruling. From a policy perspective, it strongly suggests that enemy combatants captured on the battlefield should not be kept anywhere but a place like Bagram (by extension, one might also conclude that holding trials of known terrorists and enemy combatants in a U.S. court, is contrary to this decision).

This is a direct quote from the Heritage Foundation's article on this subject:

"This decision is a victory for common sense. Never in the history of warfare have aliens captured overseas, during wartime and held outside the United States, been given constitutional rights. That is, until the Boumediene decision, which, for the time being has been cabined to those detainees held in Guantanamo Bay. If the United States had lost this case, it would further limit our ability to capture known terrorists during wartime and detain them."

Let it be.

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