3 Detained in Afghanistan Can Take Challenges to U.S. Court

arsa · #1 Friday, April 03, 2009

By Del Quentin Wilber and Karen DeYoung
Washington Post Staff Writers
Friday, April 3, 2009
A federal judge ruled yesterday that three detainees at a U.S. military prison in Afghanistan may challenge their confinement before a U.S. court, handing the Obama administration one of its first legal defeats on a claim of executive power.

U.S. District Judge John D. Bates rejected the government's argument, first made by the Bush administration and later adopted by the Obama Justice Department, that it could detain prisoners indefinitely in a "war zone."

In a 53-page ruling, Bates said that the situation of the three detainees at Bagram air base -- who were captured elsewhere and transported to Afghanistan by U.S. forces -- is "virtually identical" to that of prisoners held by the military at Guantanamo Bay. A landmark Supreme Court ruling last year accorded habeas corpus rights to detainees at that facility in Cuba.

The ruling is likely to complicate the administration's ongoing review of detainee policies. President Obama criticized his predecessor's denial of rights to and treatment of alleged terrorists and during his first week in office ordered Guantanamo Bay to be closed this year. A high-level administration task force is studying what to do with detainees deemed too dangerous to release.

For the moment, the ruling lays to rest some of the concerns voiced by human rights groups that Bagram, a secretive prison that has generally escaped public scrutiny, could become a replacement destination for suspected terrorists. A Justice Department spokesman said no decision has been made on whether to appeal the decision.

The government has more than 600 prisoners at Bagram, and the military is building a new prison there designed to hold more than 1,000, four times the number held in Cuba. The ruling yesterday potentially applies to only a few dozen detainees: Afghan citizens and those captured on the Afghan battlefield are not included.

"The only reason the [prisoners] are in an active theater of war is because [the government] brought them there," Bates wrote in denying a government motion to dismiss lawsuits brought by the detainees in D.C. federal court. He ruled that the detainees -- two Yemenis and a Tunisian -- have a right to habeas corpus, a centuries-old legal doctrine that permits prisoners to go to court to challenge their detention.

Human rights groups and attorneys for the detainees hailed the ruling as a major victory in their efforts to ensure judicial oversight of such prisons.

Ramzi Kassem, an attorney for one of the men, said: "This is a great day for American justice. Today, a U.S. federal judge ruled that our government cannot simply kidnap people and hold them beyond the law."

Legal scholars said the opinion is significant because it challenges the government's long-held position that it can detain people without cause in active combat zones.

"It raises the possibility that there can be judicial involvement elsewhere in the world," said Robert Chesney, a professor of national security law at Wake Forest University. "Whether this is a good or bad thing it's not entirely clear."

Bates emphasized that his decision to grant habeas rights to those at Bagram is limited and that it applies only to prisoners captured outside Afghanistan. The detainees' attorneys say the three men were picked up outside the country and later imprisoned at Bagram. They have been held there since at least 2003.

Most other Bagram prisoners were captured in Afghanistan during fighting, and Bates took pains to avoid addressing legal issues linked to them.

"It is one thing to detain those captured on the surrounding battlefield at a place like Bagram," the judge 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."

Referring to last year's Supreme Court ruling on Guantanamo Bay, Bates wrote: "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."

The government has not disclosed how many Bagram detainees were captured outside Afghanistan, though government sources have put the number at about 20.

Bates deferred ruling on whether a fourth detainee who was part of the habeas petition can also challenge his detention. Lawyers for that prisoner said he was captured in the United Arab Emirates. But he is also an Afghan citizen. The judge said he did not think he had the authority to grant the Afghan the right to habeas corpus because it could cause "friction" with the Afghan government, which leases the base to the United States. He asked lawyers to submit further legal briefings in that case.

The question of what to do with suspected terrorists considered too dangerous to release, or too difficult to try, is a vexing one for the Obama administration. "The truth is, this is a huge challenge," a senior defense official said.

In an interview with the New York Times last month, Obama said his administration would "have to think about" how to deal with a clearly "dangerous person" captured by U.S. forces. He said any decision would have to match international law and "my very clear edict that we don't torture, and that we ultimately provide anybody that we're detaining an opportunity through habeas corpus to answer charges."

Yet when given an opportunity by Bates to change the Bush administration's position on the then-pending Bagram case, the Obama Justice Department told the court it would "adhere" to the Bush administration's contention that the men were not eligible for habeas review.

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