The Justice Department today said it would adhere to the Bush administration's position that detainees imprisoned at a U.S. air base in Afghanistan have no right to challenge their confinement in U.S. courts.
Last month, U.S. District Judge John Bates gave the new administration an opportunity to refine its position in cases involving four detainees incarcerated at the Bagram prison, located on a converted Soviet base about 30 miles north of Kabul. They are seeking the same rights as prisoners held at the naval base in Guantánamo Bay, Cuba -- more than 200 of whom are challenging their detention in habeas proceedings in U.S. District Court for the District of Columbia.
Acting Assistant Attorney General Michael Hertz filed the government's response today. Here it is, in full:
"This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position."
The approximately 650 prisoners in the hardscrabble Bagram prison are being held there indefinitely and without charge. The prison is closed to journalists and human rights activists, and while it has long been dubbed "the other Guantánamo," Bagram detainees lack the same privileges, such as regular access to lawyers. While the Guantánamo population has dwindled to about 245, Bagram has added more than 100 prisoners since 2005, according to the Defense Department.
President Obama has ordered a task force led by the attorney general and the defense secretary to review overall policy on detainees. A report is due in six months. A Justice Department spokesman declined to speculate on whether the government's position may change following the review.
The Bagram cases, which began filtering into the U.S. District Court for the District of Columbia in 2007, built upon the arguments made by lawyers for Guantánamo detainees. The Supreme Court last summer ruled in Boumediene v. Bush that Guantánamo Bay detainees have a constitutional right to challenge their confinement under habeas corpus.
The Court deemed the Bush administration's system for determining whether to continue holding detainees -- akin to a parole board -- was an inadequate substitute for habeas relief. The Court also recognized that the United States exercised de facto sovereignty over the base, placing Guantánamo within its jurisdiction. The Court did not address Bagram, but said in some circumstances noncitizens being held in territories under U.S. control may have limited constitutional rights.
Bagram poses larger hurdles for the detainees' lawyers. The U.S. lease with Afghanistan for the Bagram lands is still in its infancy, compared with the century-long pact between Cuba and the United States governing Guantánamo. The Bush administration argued that the United States claims no similar sovereignty over Bagram, and it balked at the notion that habeas rights could be extended to detainees held "in a theatre of war where the United States is engaged in active hostilities," according to court papers filed in November.
Barbara Olshanksy, of the International Human Rights Clinic, who represents three Bagram detainees, said the prison is far less ephemeral than it's made out to be. In court papers filed last October, she pointed to plans for costly additions to the base, including a central command center and permanent barracks for army personnel. There are also plans for a $60 million expansion that would nearly double the prison's size.
Olshanksy wrote that the government is required to justify the detention of her clients, some of whom have been held for more than six years. She called Bagram a "modern-day Star Chamber" and wrote that it represents the government's attempt to "revive their effort to create a prison beyond judicial scrutiny" after Guantánamo failed.
“The decision by the Obama Administration to adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people’s human rights is deeply disappointing,” said Olshansky, who is also litigation director for the International Justice Network. “We are trying to remain hopeful that the message being conveyed is that the new administration is still working on its position regarding the applicability of the laws of war -- the Geneva Conventions -- and international human rights treaties that apply to everyone in detention there.”