One was a Yemeni businessman who was abducted while on a trip to Thailand. Another was a 14-year-old picked up in Pakistan and taken to Afghanistan four years ago. A third was at home with his wife and child in Pakistan when he was seized.
What they and one other man all have in common is they ended up in a US military prison in Afghanistan without being charged and with no way to challenge their indefinite detention.
On Monday, their lawyers went back to a federal court in Washington in their latest effort to convince a judge that their detention is a violation of a fundamental provision of the US Constitution.
US District Judge John Bates ruled three years ago that detainees can indeed challenge their detention, but was subsequently overruled by a US appeals court. Now he is examining whether he has jurisdiction to hear the renewed claims.
Lawyers for the detainees urged Judge Bates on Monday to allow their clients a new opportunity to prove that their indefinite detention at a US-built prison camp in Afghanistan violates the protections of habeas corpus.
The legal protection of habeas corpus is guaranteed in the US Constitution and by federal statute. It entitles prisoners within US borders to challenge their detention by forcing the government to justify the legality of the detention to a neutral judge.
Terror suspects at the detention camp at Guantánamo Bay, Cuba, won a decision at the US Supreme Court that they were entitled to challenge the legality of their open-ended detention in federal court in Washington. The court ruled that even though Guantánamo was outside the US, the government exercised de facto sovereignty over Guantánamo.
Lawyers for detainees in Afghanistan sought to extend that high court ruling to certain prisoners in Afghanistan. They argued that their clients had been seized by US officials in third countries and then transported against their will to Afghanistan without any legal process. These detentions were apart from battlefield operations undertaken within Afghanistan.
Bates ruled three years ago that detainees seized outside Afghanistan had a legal right to file habeas petitions in Washington. That decision was overturned in 2010 by US Circuit Court of Appeals for the District of Columbia.
The appeals court declared that protections of habeas corpus do not extend to foreign detainees held in an overseas war zone. But the appeals court left open an opportunity for lawyers to re-file their case and present any “newly discovered evidence.”
That’s what happened on Monday.
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.
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.
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.
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.