Next flash point over terror detainees: Bagram prison

At the height of its operation, the terror detention camp at Guantánamo was viewed as a legal black hole, a place where Al Qaeda suspects could be held and questioned beyond the glare of judicial scrutiny.

President Obama has made the closing of the detention facility a priority. But as Guantánamo is being drawn down, large-scale construction is under way at a US military prison in Bagram, Afghanistan.

Some critics are already calling it "Obama's Guantánamo." And it looks to become the next big flash point in a long legal tug of war over the direction of America's antiterror policies.

An estimated 242 prisoners remain at Guantánamo. In contrast, more than 600 are held at Bagram, and efforts are under way to expand facilities to potentially hold as many as 1,100 terror suspects.

With the US about to escalate the war in Afghanistan, the Bagram prison is likely to play a more visible and important role in that conflict.

In the meantime, US-based lawyers are mobilizing. Some of the same lawyers and human rights activists who fought successfully to bring judicial oversight to Guantánamo are now pushing for similar oversight at Bagram.

It's a development accurately predicted by some US Supreme Court justices. They made the predictions in a string of high court decisions since 2004 establishing for the first time that Guantánamo detainees are entitled to challenge the legality of their military detention.

"From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing courts to oversee one aspect of the executive's conduct of a foreign war," Justice Antonin Scalia wrote in his June 2004 dissent in a case called Rasul v. Bush.

At the heart of a looming legal showdown at Bagram is the same fundamental question asked in the Guantánamo litigation: Are detainees in a US military prison overseas entitled to any legal rights?

But there is an additional twist. After the Supreme Court's 2004 decision, the Bush administration stopped sending detainees to Guantánamo and instead routed them to Bagram, where they were held and interrogated without judicial scrutiny. Until now.

Justice Department lawyers staked out the same position they took while trying to defend the Guantánamo operation at the Supreme Court. They argued that federal judges in Washington have no jurisdiction to examine the detention and treatment of terrorism suspects in Afghanistan.

Last month, US District Judge John Bates asked the Obama administration if it wished to "refine" that position. He gave the new administration until Feb. 20 to announce any changes in legal arguments developed by the Bush administration.

The pending case involves four longtime detainees being held without charge at Bagram who are challenging the legality of their open-ended detention. All four are said to have been captured outside Afghanistan and were brought to Bagram for detention and interrogation.

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