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Afghanistan detainees get their day in US court, again. Why they're back.

The four are all being held indefinitely and without charge in Afghanistan after being captured in other countries. They are seeking the right to challenge their detention.

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Washington Lawyer John Connolly told the judge that his client, Hamidullah, had been captured in Pakistan at age 14, taken to Afghanistan, and held without charge or explanation for the past four years.

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Judge Bates questioned whether a detainee’s status as a juvenile would undercut the appeals court’s prior ruling. Does a juvenile receive habeas protections when an adult would not, he asked.

“I don’t think any law does that,” the judge said.

Mr. Connolly said the process afforded to a person in court is always different when that person is a juvenile.

“It is an emotional case for us,” he said. “I represent a father and mother who miss their child and they want an explanation [for his disappearance and incarceration].”

Bates said it was a moving argument, but one that would be better presented to Congress or the Executive Branch, rather than to the judiciary.

A Justice Department Lawyer, Jean Lin, urged the judge to dismiss the habeas petitions. Nothing substantial had changed since the appeals court issued its decision in 2010, she said.

The fact that one of the detainees was a juvenile when captured would matter for purposes of his treatment in detention, she said, but did not change the underlying legal analysis of the habeas issue.

Ms. Lin sought to answer arguments that the detainees were being held indefinitely without recourse to the courts. “The United States does not intend to hold anyone longer than necessary,” she told the court.

Bates countered that given the nature of the conflict with Al Qaeda there would never be a declaration that hostilities were over.

“The relevant question is not when hostilities end,” Lin said. It is whether the United States exercises de facto sovereignty over the detention facility, she said.

A second lawyer, Ramzi Kassem, argued on behalf of three other detainees – two from Yemen and one from Tunisia. He said his clients had been approved for release years ago, but are still being held.

Mr. Kassem added that a recent agreement between the US and Afghanistan to turn over control of the American detention camps to local officials, did not include the transfer of his clients to Afghan custody. He said the US government intends to continue to detain his clients indefinitely.

One of Kassem’s clients is Amin Al-Bakri, a Yemeni, who says he was seized by US authorities while on a business trip in Thailand. His lawyers say he was tortured at secret CIA black sites before being transferred to a US-built prison in Afghanistan.

Fadi Al-Maqaleh is a Yemeni who was transferred from Abu Ghraib prison in Iraq to the US-built prison in Afghanistan.

The third client is Redha Al-Najar, a Tunisian, who was seized at his home in Pakistan, where he lived with his wife and child. He was allegedly tortured at CIA black sites before being transferred to the US prison in Afghanistan.

Judge Bates offered no guidance about when he might rule.


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