Michael's Dispatches

Court Decisions on Bagram Detainees


25 May 2010

We all are aware that war leads to difficult situations.  In regard to detainees, we've seen terrorists released only to strike again. Yet in the interest of justice we are concerned about detaining potentially innocent people.  Difficult times, difficult answers.  In summary, some detainees at Bagram are trying to use American courts to chisel their way out.

Last year, a group of people were asked to join in offering an opinion to the court.  Those were: Special Forces Association, U.S. Army Ranger Association, Senator Lindsey Graham, Col. (ret) Abraham German, Wade Ishimoto, Prof. Andrew Nichols Pratt, Dr. Dennis Walters, Rear Admiral (ret) George Worthington, Michael Yon and Senator Ryan Zinke.

The good attorneys who are trying to keep us from getting blown up by repeat offenders emailed today.  The above parties received the following message from Attorneys David Rivkin and Carlos Ramos Mrosovsky:

Dear Gentlemen,

We are very happy to report a tremendous success in the Maqaleh litigation before the D.C. Circuit.  Last Friday, the panel of three judges handed down their decision, as well as an opinion by Chief Judge Sentelle, which reversed the district court and ordered that the Bagram detainees' habeas petitions be dismissed.  We have attached Judge Sentelle's opinion for your review.

It appears that our amicus brief was right on target.  While both the government and counsel for the detainees made "bright line" arguments -- that is, they argued that habeas rights should always or should never apply on U.S. military bases overseas -- the court refused to accept either extreme position. Instead, it focused on the "practical factors" which were emphasized in our brief.  In this regard, the most important language appears on page 22 of the decision: " . . . we hold that the third factor, that is 'the practical obstacles inherent in resolving the prisoner’s entitlement to the writ . . . weighs overwhelmingly in favor of the position of the United States."  The court then concluded that the fact that Bagram is located within an active theater of war weighed strongly against extending habeas rights to detainees held there.  Given the court's emphasis on the "practical difficulties" side of the analysis, we feel confident that the involvement of amici who could speak with ultimate credibility as to those difficulties cannot but have made an immense impact.

At this stage, it is too early to know whether counsel for the detainees will seek a final appeal to the Supreme Court.  Even if she does so, however, we believe that, given the unanimous nature of the D.C. Circuit panel's decision and its well-reasoned character, the Supreme Court is most unlikely to grant this request.  Overall, the D.C. Circuit's Maqaleh decision represents a significant victory.

Thank you again for your participation in this amicus briefing project.  Please do not hesitate to contact us if you have any questions.

Best regards,
David & Carlos




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  • This commment is unpublished.
    Tim · 11 years ago
    Excellent News!
    Keep fighting the good fight Gentlemen.
    From a gratefull American.
  • This commment is unpublished.
    Jon White · 11 years ago
    At last a decision that reflects the issue. In the UK we have just released an AQ rep into public domain because to send him back to Pakistan may mean he is tortured. The general concensus from the public is "so what". From the trendy lefties it is more a case of "well the EEC rules say so we obey". I saw a spoof e mail once saying that a terrorist was being released and as this person had signed a petition for his release then he was going to be delivered to their house as a house mate. Oh how you wish that could be true. In this case well done USA.
  • This commment is unpublished.
    J Richardson · 11 years ago
    Chief Judge David Sentelle is a local boy from the mountains of NC (Haywood County) made good. He may sometimes come across like a good ol' boy but he is one smart fellow.
  • This commment is unpublished.
    Jeff Stanley · 11 years ago
    Common sense from an American court? Who'd a thunk!
  • This commment is unpublished.
    Charles Griffith · 11 years ago
    Isn't it past time for someone to do a thesis on the subject of "Lawfare versus Warfare"?

    How has this emerged since WWII when such things as the Bagram issue would've never gone anywhere at all.....think of Dachau, Treblinka; ... even Vichy France never (to my knowledge) had such a situation, even with the prisoners taken in North Africa.......examples from both sides of that war. Think Shanghai, Nanking, on and on.

    Why have we allowed our Military to become the least bit defensive about taking these potential killers prisoners at warfare in an active war zone? When these Islamic terrorists wear no uniforms, hide behind and use women and children as "mules"....and skillfully vanish into the market area?

    This whole situation is Orwellian.
  • This commment is unpublished.
    Graeme Thompson · 11 years ago
    And thanks from a grateful Englishman as well. All free citizens of the world owe you one for this one. I'll echo the thoughts of the previous poster, it shows what an insane state the western world is in that these cases even get to court.
  • This commment is unpublished.
    kwgm · 11 years ago

    This is good news. Somewhere in democracy heaven, Locke, Rousseau, and Voltaire are having a hell of a party tonight, while in fascist hell Genghis Khan, Himmler and Hitler, Ivan the Terrible, and Steel Joe Stalin are crying in their beer.

    Hooray for justice, hooray for human rights, and hooray for the good guys in the endless battle between good and evil.

    It must make your job feel very worthwhile to report such news. Thank you again for work, look for another support check from me, and God bless us all who know the difference between right and wrong, are willing to fight with whatever God-given tools with which we are blessed, and who work for peace and human justice without haste and without rest.

    -- kwgm
  • This commment is unpublished.
    AZ Angel · 11 years ago
    Thank Gos, some common sense!! About time, now what about all the rest of the crap!!
  • This commment is unpublished.
    AZ Angel · 11 years ago
    LOL, Thank God!! Pay attention, Jane!
  • This commment is unpublished.
    Michael Yon Author · 11 years ago
    The more people you see killed by terrorists the less tolerant you become of terrorists.
  • This commment is unpublished.
    mike wilson · 11 years ago
    as i said before-- take the gloves off the military-- help when we can help the locals if they want it-- but kill the bad guys as needed-- never tell a marine to look up a law book to see if he can shoot back when being shot at-- we need to take back this nation from the leftie wienie types who would squeal like a bunch of pigs if a bomb would go off in San Fran-- smug butt holes--- Remember to Vote in a new wave of leaders who can lead!!!
  • This commment is unpublished.
    Scott Dudley · 11 years ago
    For those ignorant of the realities of the ROEs in Afghanistan, perhaps a little education is in order.

    http://www.mudvillegazette.com/0 68 .html

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