Court rejects Bagram prisoners, again

McClatchy Washington BureauDecember 24, 2013 

An appeals court has again rejected habeas corpus petitions filed by alleged enemy combatants held in Afghanistan at the Bagram Airfield Military Base.

In a 44-page decision, the U.S. Court of Appeals for the District of Columbia Circuit said the five prisoners who filed suit were beyond the reach of the U.S. Constitution, unlike the men held at Guantanamo Bay.

Guantanamo, the court stated, "does not lie in a theater of war" while "our forces at Bagram...are actively engaged in a war with a determined enemy."

As an aside, one might wonder whether a "war" has changed into an "occupation," and whether that affects the legal analysis. War is dynamic, and necessitates flexibility. An occupation is more static, and, perhaps, is closer to a civilian model. But moving on.

In an opinion written by Judge Karen LeCraft Henderson, a George H.W. Bush appointee, the appellate court effectively followed in the footsteps of an earlier 2010 decision. Three of the five appellants in the case decided Tuesday were also part of the earlier case. The men reported being captured in a variety of locations, including Thailand, Iraq and Pakistan.

The "practical obstacles" of extending constitutional rights to Bagram prisoners weighed heavily on the judges, who stressed the ostensible dangers of diverting attention "from the military offensive abroad to the legal defensive at home."

"The United Sates in Afghanistan is not involved merely in administering occupied territory and containing scattered guerrilla fighters, but rather in quelling a large-scale insurgency against the government of a regional ally," the three-judge panel noted, adding that "orders issued by judges thousands of miles away would undercut the commanders' authority."

Deference to the executive branch, more broadly, provides the underpinning to the court's reasoning.

"The prosecution of our wars is committed uniquely to the political branches and we rarely scrutinize it," Henderson wrote.

Tina Monshipour Foster argued the case on behalf of Fadi Al Maqaleh and others.


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