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Analysis: Some Overseas Extension Of Habeas?

Publication Date: 
January 07, 2009
Lyle Denniston

Professor Barbara Olshansky is quoted in a SCOTUSBlog analysis regarding a suit over habeas corpus privileges of four Bagram prisoners whom Olshansky is representing:

After Wednesday’s hearing, Judge John D. Bates ordered the government to supply, by Jan. 16, information on how many detainees are at Bagram Air Base, how many were captured elsewhere, and how many are Afghan citizens — the last two points apparently bearing on issues the judge had raised at the hearing.


“You seem to be reserving the position that anywhere [detainees] are held, they would have habeas privileges,” the judge commented to Stanford law professor Barbara J. Olshansky. She told Bates that, while she was seeking habeas rights only for the four prisoners involved in the cases now before him, “there can’t be any place in the world where we can keep people without any due process.”


Olshansky disagreed with Bates on that point of difference, saying that even if a prisoner were actually arrested inside Afghanistan might not mean that they were an “enemy combatant” who should remain detained. She said that the military could easily accommodate habeas proceedings, including giving detainees access to lawyers. Bates countered that “in a theater of war, it isn’t all that easy.”