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Terror suspects held in Afghanistan may challenge their detention

A federal judge applies the same principles as the Supreme Court ordered at Guantánamo, which presents a challenge to the Obama administration.

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"What Judge Bates's decision does is reject the position that the war on terror provides a blank check for the Bush administration and the Obama administration," she says.

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The ruling does not apply to the vast majority of Bagram detainees who were captured in Afghanistan and continue to be held in Afghanistan.

It is not clear how many other Bagram detainees were captured abroad and transported to Afghanistan. Government lawyers say the number is classified. Portions of Bates's 53-page opinion are redacted with notations that they relate to classified information.

The Bates ruling comes on the government's motion to dismiss petitions seeking habeas corpus review of the legality of the detentions of four longtime prisoners at Bagram. The judge ruled that three of the prisoners could pursue their petitions: Fadi al-Maqaleh and Amin al-Bakri, both of Yemen, and Redha al-Najar of Tunisia.

Bates reserved ruling on a fourth case. He asked lawyers to submit additional briefing on the petition of Haji Wazir of Afghanistan.

A Justice Department spokesman offered no comment, saying only that officials were reviewing the decision.

The ruling is a setback for the Obama administration, which has pledged to close Guantánamo within a year but has continued to defend a number of Bush administration "war on terror" policies in pending legal cases. Attorney General Eric Holder is heading a task force studying possible changes in US antiterror detention policies.

Ms. Foster said the ruling may help speed that review. "The judge is holding the administration's feet to the fire and asking extremely prescient questions," she says. "Finally, here is a federal judge telling the administration that it has to address detainee policy."

In his ruling, Bates compared detainee review procedures at Bagram with those at Guantánamo. He said Bagram detainees had fewer procedural protections. While Guantánamo detainees were provided a personal representative to assist in reviewing their detention status, he said, Bagram detainees must represent themselves.

"Obvious obstacles, including language and cultural differences, obstruct effective self-representation," the judge said. "Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an 'enemy combatant' designation – so they lack meaningful opportunity to rebut that evidence," the opinion said.