[Ppnews] Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus

Political Prisoner News ppnews at freedomarchives.org
Fri Apr 3 11:33:41 EDT 2009

April 3, 2009

Judge Rules Some Prisoners at Bagram Have Right of Habeas Corpus


WASHINGTON ­ A federal judge ruled on Thursday 
that some prisoners held by the United States 
military in Afghanistan have a right to challenge 
their imprisonment, dealing a blow to government 
efforts to detain terrorism suspects for extended 
periods without court oversight.

In a 
ruling that rejected a claim of unfettered 
executive power advanced by both the Bush and 
Obama administrations, United States District 
D. Bates said that three detainees at the United 
Air Base had the same legal rights that the 
Court last year granted to prisoners held at the 
American naval base in Guantánamo Bay, Cuba.

The three detainees ­ two Yemenis and a Tunisian 
­ say that they were captured outside Afghanistan 
and taken to Bagram, and that they have been 
imprisoned for more than six years without 
trials. Arguing that they were not enemy 
combatants, the detainees want a civilian judge 
to review the evidence against them and order 
their release, under the constitutional right of 

The importance of Bagram as a holding site for 
terrorism suspects captured outside Afghanistan 
and Iraq has increased under the Obama 
administration, which prohibited the 
Intelligence Agency from using its secret prisons 
for long-term detention and ordered the military 
prison at Guantánamo closed within a year. The 
administration had sought to preserve Bagram as a 
haven where it could detain terrorism suspects 
beyond the reach of American courts, telling 
Judge Bates in February that it agreed with the 
Bush administration’s view that courts had no 
jurisdiction over detainees there.

Judge Bates, who was appointed by President 
W. Bush in 2001, was not persuaded. He said 
transferring captured terrorism suspects to the 
prison inside Afghanistan and claiming they were 
beyond the jurisdiction of American courts 
“resurrects the same specter of limitless 
executive power the Supreme Court sought to guard 
against” in its 2008 ruling that Guantánamo 
prisoners have a right to habeas corpus.

Dean Boyd, a Justice Department spokesman, said 
that the administration was reviewing the 
decision and that it had made no decision about whether to appeal.

Judge Bates emphasized that his ruling was “quite 
narrow.” He said that it did not apply to 
prisoners captured on the battlefield in 
Afghanistan, and that a determination of whether 
prisoners might challenge their detention in 
court would depend on a case-by-case analysis of 
factors like their citizenship and location of capture.

“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,” 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.”

Moreover, the judge has put off ruling that a 
fourth prisoner ­ also captured outside 
Afghanistan, but holding Afghan citizenship ­ had 
a right to challenge his detention. He said any 
order to release the detainee could lead to 
frictions with the Afghan government, and asked 
for additional briefings on that case.

The United States is holding about 600 people at 
Bagram without charges and in spartan conditions. 
United States officials have never provided a 
full accounting of the prison population, but an 
American government official, speaking on 
condition of anonymity because it is against 
policy to discuss details of the Bagram prison, 
said that fewer than a dozen detainees fell into 
the category affected by the ruling ­ non-Afghans 
captured beyond Afghan borders.

Judge Bates has been involved in several 
high-profile executive power cases. In 2002, he 
sided with the Bush administration in a lawsuit 
over whether Vice President 
Cheney’s energy task force records were required 
to be disclosed. But in 2008, he sided with 
Congress in an executive-privilege dispute over 
whether top aides to Mr. Bush were immune from 
subpoenas related to the firing of federal prosecutors.

David Rivkin, an associate White House counsel in 
the administration of the first President Bush, 
predicted that Judge Bates’s ruling would be 
overturned on appeal. He warned that the ruling 
“gravely undermined” the country’s “ability to 
detain enemy combatants for the duration of hostilities worldwide.”

But Tina Foster, the executive director of the 
International Justice Network, which is 
representing the four Bagram detainees, praised 
Judge Bates’s decision as “a very good day for 
the Constitution and the rule of law.”

Ms. Foster said that the Bagram ruling meant that 
changes to the Bush detention policies would go 
beyond merely closing Guantánamo and extend “to 
any place where the United States seeks to hold 
individuals in a legal black hole.”

The power of federal judges to review decisions 
by the executive branch to imprison a terrorism 
suspect was among the most contentious legal 
issues that arose after the 2001 terrorist 
attacks. The Bush administration began a policy 
of holding prisoners indefinitely and without 
trials, arguing that federal judges had no 
authority to second-guess its decisions about 
whom to name an “enemy combatant.”

But human-rights lawyers challenged those 
policies, winning Supreme Court decisions in 
2004, 2006 and 2008 that gradually expanded the 
reach of the American legal system over detainees.

After taking office, Mr. Obama ordered a review 
of the evidence against each of the roughly 240 
prisoners at Guantánamo as a first step toward 
closing the prison within a year.

He did not extend the steps he was taking to 
resolve the fate of the Guantánamo prisoners to 
those held at Bagram, although a comprehensive 
review of detainee policies is due to be 
completed in July. Ms. Foster said that the 
Bagram case may force the administration to speed up its decisions.

Eric Schmitt contributed reporting.

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