Obama Wins The Right To Detain People With No Habeas Review

Glenn Greenwald writes Obama wins the right to detain people with no habeas review>/a>.

"Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).

So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind.  When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it 'one of the worst decisions in the history of this country.' But Obama hailed it as 'a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo,' and he praised the Court for 'rejecting a false choice between fighting terrorism and respecting habeas corpus.'"

I get this part. If we're at war, and we capture the enemy and hold them in POW camps, I don't see that they get habeas review. Such a description works well for WWII or Vietnam. What does it mean for the so-called War on Terror?

If capture Taliban forces then we should be able to imprison them, either at our bases or put them through an Afghani criminal system if that applies. When we leave Afghanistan in 2011 that choice is reduced by half.

If we capture a US citizen attempting to blow up a domestic plane, they should go through the criminal justice system. Doesn't that make sense? Seems the same for an international flight. And it seems the same for a non-US citizen on a domestic or international flight (where one end is in the US).

If we stop some al Qaeda on a flight from Pakistan to Yemen, I have no idea what we do. That sounds very James Bond to me. And Bond never seemed to take prisoners. I don't know as I'm too comfortable with the US having the ability to just kidnap anyone in the world and hold them forever in a cell somewhere. You want to tell me the real James Bonds do this occasionally with a Goldfinger, fine. But don't tell me we do this with people brought to us by poor farmers in a lawless land based just on their word that this guy is a terrorist. And yeah, we've don't that a lot.

Greenwald makes another point: "One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the Kagan-for-Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is what Boumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?"