Commentary Magazine


What to Do With Afghan Detainees?

At first I thought that U.S. District Judge John Bates’s ruling that prisoners held at Bagram have the right to file habeas petitions with the U.S. courts was a disaster. But on closer examination, it doesn’t seem so bad. He focused his ruling exclusively on non-Afghan prisoners detained by U.S. forces in Afghanistan, essentially extending the U.S. Supreme Court’s previous ruling on Gitmo. He did not apply his ruling to prisoners detained in Afghanistan, who constitute the bulk of Bagram detainees. He wrote:

It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theater of war, where the
Constitution arguably may not reach.

That means that U.S. forces can continue to detain terrorism suspects captured in Afghanistan without instituting U.S. criminal court proceedings. The real difficulty so far in Afghanistan hasn’t been with the U.S. courts. It’s been with NATO, which allows troops to detain suspects for only 96 hours. As a result of that overly restrictive policy, we are holding only 621 detainees at Bagram — far too few, given that there are certainly over 10,000 insurgents operating in Afghanistan. (In Iraq, a smaller country, our forces were holding 24,000 detainees at the height of the surge.)

President Obama didn’t mention legal issues in unrolling his new Afghan strategy but finding a way to process and hold more detainees has to be a critical part of the war effort going forward. I hope that military commanders are not dissuaded from addressing this urgent task by Judge Bates’s ruling-which, in any case, is certain to be appealed.