Judge: Bagram prisoners can challenge detention

Friday, April 3, 2009

WASHINGTON -- A federal judge ruled Thursday that some prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan, for the first time extending rights given to Guantanamo Bay detainees elsewhere in the world.

U.S. District Judge John Bates rejected U.S. arguments that three foreign detainees at Bagram Airfield in Afghanistan should be denied the right. He said non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to "move detainees physically beyond the reach of the Constitution and detain them indefinitely."

The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.

Bates said the cases were essentially the same. He quoted the Supreme Court ruling repeatedly in his judgment and applied what he said was a test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.

Justice Department spokesman Dean Boyd said the department is reviewing the ruling. He pointed out that President Barack Obama has ordered a review of detention policy, and that an interagency task force is working to finish a report by July that outlines the legal options for handling terror suspects in the future. Obama has also ordered that the Guantanamo Bay detention facility be closed within a year.

But the Obama administration sided with the Bush White House when it argued on Feb. 20 that detainees at Bagram cannot use U.S. courts to challenge their detention.

The Justice Department has argued that Bagram is different from Guantanamo Bay because it is in an overseas war zone and the prisoners there are being held as part of a military action. The government argues that releasing enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.

The government also said if the Bagram detainees got access to the courts, it would allow all foreigners captured by the United States in conflicts worldwide to do the same.

Bates, a U.S. Army veteran and former career Justice Department official, was among the first district judges nominated by President George W. Bush. His 53-page decision was partially redacted to remove classified material.

The ruling drew criticism from some Republicans in Congress. Sen. Lindsey Graham, R-S.C., called the decision "dangerous and naive" and said it put troops at risk by allowing a judge to micromanage a war thousands of miles away.

"Using this logic in World War II would not have allowed us to capture Nazi operatives anywhere but in Germany," Graham said.

New York Rep. John M. McHugh, the leading Republican on the House Armed Services Committee, said Obama's decision to jettison Bush detainee policy "left a policy vacuum that is now being filled by the courts. This turns warfare into lawfare, and could place lives at risk."

Bates considered motions to deny the requests of four detainees asking to be released, but he reserved judgment on one detainee, Haji Wazir, because he is an Afghan citizen and releasing him could create "practical obstacles in the form of friction with the host country." He ordered Wazir and the government to file memos addressing those issues.

The other three detainees are from outside Afghanistan -- Fadi al Maqaleh of Yemen, Amin al Bakri of Yemen and Redha al-Najar of Tunisia -- and say they were captured outside the country.

Bates also suggested that access to U.S. courts may not be available to Bagram detainees who were captured in Afghanistan.

"It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war," Bates wrote. "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. Such rendition resurrects the same specter of limitless executive power the Supreme Court sought to guard against."

All four of the detainees in this case have been held at the airfield for six years or more without access to the courts, which Bates called "an unreasonable amount of time." Bates wrote that the determination to hold them as enemy combatants is part of a process "plainly less sophisticated and more error-prone" at Bagram than it is at Guantanamo.

The Bush administration said in court filings last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.

Bates noted that Bagram detainees are not allowed any representation when their enemy combatant status comes up for review and they have no access to evidence used to classify them as such so they can defend themselves. Bates said they face language and cultural barriers and cannot even speak on their own behalf but only can submit a written statement.

The Justice Department said last month that they will no longer use the term "enemy combatant" to refer to prisoners at Guantanamo Bay. But they said that new position does not apply to prisoners elsewhere.

In a separate ruling Thursday from the same Washington courthouse, U.S. District Judge Richard Leon declined to release a prisoner, Hedi Hammamy of Tusisia, who has been held for seven years at Guantanamo Bay.

The United States says Hammamy fought against the United States at Tora Bora, was a member of an Italy-based terrorist cell that supported Islamic terrorist groups, attended a terrorist training camp in Afghanistan and was involved in an organization in Pakistan with a classified identity.

Hammamy argued that all the government's allegations are false. But Leon said evidence, including reports that Hammamy's identification was found in an al-Qaida cave complex after the battle of Tora Bora, backed up the government's case that Hammamy supported terrorism.

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