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.

Larry Downing/Reuters
Protesters outside the White House in March called for the closing of the US detention facilities at Guantánamo Bay, Cuba, and at Bagram Air Force base, Afghanistan.

A federal judge in Washington has ruled that three detainees at the US military prison in Afghanistan are entitled to challenge the legality of their open-ended detention in a US courtroom.

The action marks the first time an American judge has extended such constitutional protection to any of the 600 terror suspects being held in the military prison at the Bagram Air Force base.

In a ruling released on Thursday, US District Judge John Bates said he was applying the same legal principles established last June when the US Supreme Court extended habeas corpus rights for the first time to detainees being held at the US terror prison camp at Guantánamo Bay, Cuba.

Judge Bates said he was applying a six-part test set out by the Supreme Court in its decision in the case Boumediene v. Bush.

"The Bagram detainees in these cases are virtually identical to the Guantánamo detainees in Boumediene," he said.

Critics of the Boumediene decision said it would eventually empower federal judges in Washington to second-guess a wide range of battlefield actions by the military overseas. They said it would stretch the civilian courts' enforcement of the Constitution "to the four corners of the earth."

Bates addressed that concern. "That's an overstatement," he said in his opinion. The judge said his ruling was intentionally narrow, applying only to detainees who had been captured by the US government outside Afghanistan and transported to Bagram for interrogation and indefinite detention. One of the detainees was captured in Thailand and transported to Afghanistan. The case involves four detainees who have been held without charge or access to counsel for six years.

"It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which [government lawyers] correctly maintain is in a theater of war," Bates said. "It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach."

The judge warned: "such rendition resurrects the same specter of limitless executive power the Supreme Court sought to guard against in Boumediene – the concern that the executive could move detainees physically beyond the reach of the Constitution and detain them indefinitely."

A lawyer for the four detainees praised the judge's opinion.

"This decision is significant because it rejects the Bush administration's extreme position that people can be taken from anywhere in the world and secreted away for years without any judicial oversight or check on that authority," says Tina Monshipour Foster of the International Justice Network.

"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.

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.

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