Court: Bagram prisoners don't have Guantanamo habeas rights

McClatchy NewspapersMay 21, 2010 

WASHINGTON — A key appellate court on Friday concluded prisoners held at Bagram Air Base in Afghanistan cannot challenge their captivity through rights granted under the U.S. Constitution.

The U.S. Court of Appeals for the D.C. Circuit ruled that Yemeni native Fadi al Maqaleh and two other men did not enjoy the same habeas rights previously extended by the Supreme Court to Guantanamo Bay detainees.

Citing geographic and other differences between the air base in Afghanistan and the naval base in Cuba, the three-judge panel overturned a trial court's conclusion that the Bagram detainees were constitutionally similar to those held in Guantanamo.

"Guantanamo Bay is a territory that, while technically not a part of the United States, is under the complete and total control of our government," Judge David Sentelle wrote. At Bagram, he added, "the surrounding circumstances are hardly the same."

The U.S. has controlled Guantanamo for more than a century, while Sentelle noted that at the sprawling Bagram facility "there is no indication of any intent to occupy the base with permanence."

The appellate panel further noted that Bagram, unlike Guantanamo, is "exposed to the vagaries of war" because of its location in an active war zone. On Wednesday, driving the point home, seven Taliban fighters died when they attacked the facility, roughly 40 miles north of Kabul, the Afghan capital.

The wartime setting, as well as potential complications in dealing with a sovereign Afghan government, undermined the detainees' claims that they are protected by the Constitution.

"While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that (U.S.-Afghan) relationship, neither can we say with certainty what the reaction of the Afghan government would be," Sentelle wrote.

Sentelle is one of the most conservative judges on the influential D.C. Circuit. He was joined by two members of the court's liberal wing, Judges David Tatel and Harry Edwards.

The ruling is a marked victory for the Obama administration, which had adopted the Bush administration's prior arguments excluding Bagram detainees from constitutional protections. The court, though, made clear it was not adopting all of the administration's reasoning, some of which Sentelle called "extreme."

The case's next stop could well be the Supreme Court. Court nominee Elena Kagan would presumably recuse herself from the case if confirmed, because as solicitor general she's overseen the Obama administration's arguments.

An estimated 800 detainees are currently held at Bagram. Relatively few were born and captured outside of Afghanistan, though they are at the heart of the dispute.

"There are not a large number of people who fall into this category," noted Vijay Padmanabhan, a former State Department attorney-adviser, "but it's a very important case, because it sets the boundaries (for overseas detention)."

Now teaching at the Benjamin N. Cardozo School of Law in New York, Padmanabhan said the ruling if upheld could allow "the government to pick people up anywhere and just send them to Bagram," where their detention couldn't be challenged.

Republican Sen. Lindsey Graham of South Carolina, however, called the decision a "big win" for national security.

"Allowing a non-citizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions," Graham said. "It also would have dealt a severe blow to our war effort."

Al Maqaleh was captured in Afghanistan in 2003, U.S. officials say. He said he was captured outside of the country. Redha al Najar is a native of Tunisia who said he was captured in Pakistan in 2002. Amin al Bakri is a Yemeni citizen who said he was captured in Thailand in 2002.

The U.S. considers the men enemy combatants, and holds them on a six-square-mile former Soviet base that's the largest military facility in Afghanistan.

The Bagram detainees had sought refuge in several prior Supreme Court rulings. In the 2004 case Rasul v. Bush, the court ruled that Guantanamo detainees enjoyed a statutory right to challenge their detention through a habeas corpus petition.

In a follow-up 2008 case called Boumediene v. Bush, the Supreme Court ruled the Guantanamo detainees' right to file habeas challenges was rooted in the Constitution. On Friday, the appellate judges said the same can't be said for men held in Bagram.

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