Bagram’s new prison and what might have been

Saturday’s New York Times discussed a plan by the U.S. government to build a 40-acre prison at the Bagram airbase in Afghanistan:

In its place the United States will build what officials described as a more modern and humane detention center that would usually accommodate about 600 detainees — or as many as 1,100 in a surge — and cost more than $60 million.

The U.S. and its Afghan allies have held prisoners in Afghanistan since the very beginning of the war in October 2001. But one wonders whether the course of U.S. constitutional law, the future of the executive’s ability to conduct military operations, and the reach of U.S. judicial authority, would have taken a different course had the Bush administration committed to this prison facility in late 2001 rather than opting for the Guantanamo Bay gambit.

In June 2004, the U.S. Supreme Court handed down its opinion in the case Rasul v. Bush. In this notorious ruling, the court decided, much to the great surprise of the Bush administration, that the leased Cuban territory constituting U.S. Naval Base Guantanamo was effectively enough U.S. territory that the U.S. court system should have jurisdiction over what happened there. This began the U.S. judiciary’s dangerous walk down a very slippery slope which still might result in the Supreme Court deciding that the sovereign territory of any nation-state might be subject to its supervision. As I discussed in December, cases before the court this term provide an opportunity for the court to extend its quasi-imperial powers.

Knowing what it knows now, the Bush administration would never have transferred a single detainee to Guantanamo. Two years ago, I speculated as to why the Bush administration’s legal advisors committed what is now the grievous error of moving terror detainees to Guantanamo:

The decision to establish it in the first place, made back in the angry days of October 2001, was no doubt tinged with both excessively hubristic legal advice and a touch of bureaucratic laziness. In October 2001, the Bush administration’s legal team incorrectly assumed that righteousness and legal precedent would protect any legal challenges to the Guantanamo camp. And Washington, D.C.-based intelligence officers undoubtedly balked at the idea of having to schlep to some frozen, dusty corner Afghanistan to conduct interrogations of captured Al Qaeda members. Warm, sunny Cuba, a short plane ride from Washington, seemed much more attractive.

Once collected in one visible place, it was inevitable that the machinery of “lawfare” would crank up, inevitably sending a work product to the U.S. Supreme Court.

In the immediate wake of the 9/11 attacks, no one knew what “lawfare” was. Everyone knows now. Had the Bush administration spent the money back then to build a suitable prison at Bagram and collected all the terror detainees there, it seems very reasonable to conclude that the Supreme Court would have found it too much of a legal stretch to extend its authority into that active war zone, as compared to Guantanamo, a place completely disconnected from combat operations. If the Supreme Court had wished that it could have avoided involving itself in essentially military matters, collecting the detainees at the media-visible Guantanamo camps left the court no choice but to get involved. With the prison at Bagram instead, the outcome might have been different.

What now? The remaining U.S. presidential candidates say they want to close the camps at Guantanamo. Could the U.S. transfer the high value prisoners, the ones no other country will take, to Bagram? Would this remove them from U.S. judicial supervision?

That seems unlikely. Like the proverbial toothpaste out of the tube, it would seem very unlikely that the U.S. court system would acquiesce to the undermining of its jurisdiction in this manner. In fact, transferring the prisoners to Bagram could make the situation worse, by forcing the Supreme Court to declare global geographic jurisdiction (assuming it does not do so with the cases before it this term).

And what about future captures, such as bin Laden, Zawahiri, or others? If they go straight to Bagram, will they be free of U.S. judicial system oversight? Or will they, like the rest, likely end up in U.S. federal court inside the U.S., with their cases most probably dismissed for lack of admissible evidence (for reasons I explained here)?

What a mess. What might have been, had the prison been in Bagram instead of Guantanamo.