Next flash point over terror detainees: Bagram prison

Citing the Rasul case and other decisions establishing due-process rights at Guantánamo, a group of lawyers filed a lawsuit in Washington seeking to extend those same rights to detainees in Bagram.

"Some of our clients have been in custody just as long or longer as those in Guantánamo," says Tina Foster, an attorney with the International Justice Network.

Unlike the Guantánamo detainee cases, lawyers in the Bagram case have never been permitted to meet or communicate with their clients. Bagram detainees are not entitled to the combat status review tribunals and other safeguards set up at Guantánamo.

"We can't keep people without due process," says Barbara Olshansky, a key player in the Rasul case who is now helping to litigate the Bagram case. "This case is important because it goes to the issue of does the writ [of habeas corpus] extend to where the US military is completely entrenched and controlling detention."

Ultimately the question may come down to whether the situation at Bagram is similar enough to operations and circumstances at Guantánamo to warrant US judicial oversight.

"What we are really asking Judge Bates to do is define where the writ ends," says Ms. Olshansky, who is also a professor and director of the International Human Rights Clinic at Stanford Law School.

Government lawyers have been trying to prevent Judge Bates from even considering that issue. They say fighting a war is a matter for the political branches and the military, not civilian judges.

"To stretch [US constitutional protections] to Bagram under these circumstances would lead to the anomalous result that any alien enemy engaged in warfare abroad and detained by the United States anywhere in the world can petition US civilian courts for review of the military's decision to detain them," says the government's brief filed in September.

The US military presence at Bagram is a transient wartime necessity, government lawyers say, and the prison itself is in an active war zone.

Legal analysts say Bates may seek to limit his ruling by applying it only to Bagram detainees captured outside Afghanistan.

The judge asked the government to disclose the number of such detainees. The government response is classified. Olshansky, Ms. Foster, and the other lawyers in the case have not been permitted to see it.

The Bagram case is a potential blockbuster, legal analysts say. "Once you extend habeas protection by judicial decree to a detention center besides Guantánamo Bay, you theoretically open a door that would extend to any detention center by the United States anywhere else in the world," says Scott Silliman, executive director of Duke Law School's Center on Law, Ethics, and National Security.

But new policies and practices enacted by the Obama administration could head off such a ruling, adds Professor Silliman. Recent Obama executive orders, he says, suggest the new administration may soon increase visitation rights of the International Committee of the Red Cross and offer additional safeguards for humane treatment and legal protections at Bagram.

Should such changes take place, Silliman says, "there may not be any need to consider extending habeas to [Bagram]."

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