Habeas corpus at Bagram There are no exceptions

There has been an important step toward universal human rights. It is the recent ruling by United States District Judge John Bates that three non-Afghan suspects who were captured outside Afghanistan but transferred to and detained there at Bagram Airbase (for more than six years without trial) nevertheless have a right to habeas corpus, that is, right of appeal to U.S. courts to challenge the grounds for their imprisonment. It is a welcome corollary to the U.S. Supreme Court 2008 ruling regarding prisoners held at Guantanamo in Cuba.

Judge Bates, a George W. Bush appointee, said transferring captured terrorism suspects to a prison inside Afghanistan and claiming they were beyond the jurisdiction of American courts “resurrects the same specter of limitless executive power the Supreme Court sought to guard against� in its 2008 ruling that Guantanamo prisoners have a right to habeas corpus. You cannot transfer a prisoner to a “war zone,� and then claim that “war powers� trump human rights.

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The question remains, however: What about all the other prisoners who are Afghans, or some other nationality, and who were captured, rightly or wrongly, on the battlefield in Afghanistan? Do they have the right of habeas corpus? The short answer is, yes. Every person on the face of the earth has that right. But there are limits and conditionalities.

Under the U.S. Constitution, for example, the right of habeas corpus may be temporarily suspended by Congress (not by the president) under defined circumstances. The Bush administration never met the procedural requirements or conditionalities. The Obama administration now has to rectify this.

As the framers of the U.S. Constitution clearly understood, the writ of habeas corpus, dating to the Magna Carta of 1215, and as reconfirmed by determining court cases, notably under Charles II in the 17th century, applied to any place on earth controlled by the hand of the king (the chief executive). This, of course, is why the U.S. Constitution entrusts the Congress (the legislature) and not the president (the executive against whom the writ is addressed) with the limited ability to suspend habeas corpus. It is why habeas corpus applies as much to Bagram as it does to Guantanamo.

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Still, the remaining question is this: To which courts of law in these cases does the right of appeal apply? Basically, the right of appeal begins with the nearest court of possible jurisdiction, if that court is functional, and meets national and international legal standards of due process.

Thus, Afghans and others who were captured in Afghanistan and held at Bagram have the right to appeal to the Afghan courts of law. If that is prevented, due to incapacity of the Afghan courts, or political conditions, or other reasons in Afghanistan, then the right of appeal shifts to the courts of the United States.

Why? Because the United States incarcerated the detainees in the first place. The hand of King George reached Bagram. Therefore, the writ of habeas corpus reaches Bagram also. If the U.S. courts fail, then other nations can take the cases to the International Court of Justice in the Hague.

The bottom line is this: Habeas corpus is a basic, universal and inalienable human right, belonging to every person on earth. Every nation has a solemn and inescapable responsibility to respect and ensure that right for all. Such is the morality and law of civilized nations. Ultimately, there are no exceptions.

Sharon resident Anthony Piel is a former director and legal counsel of the World Health Organization.