A federal judge ruled today that certain detainees held at a U.S. military base in Afghanistan have the right to challenge their imprisonment in U.S. court.
Judge John Bates of the U.S. District Court for the District of Columbia ruled that non-Afghani prisoners detained at the Bagram Theater Internment Facility outside Kabul could press habeas corpus cases before American judges.
“Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time —— here, over six years —— without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus,” Bates wrote.
More than 600 prisoners are held at Bagram. How many of them were captured outside of Afghanistan, or are Afghani citizens, is not publicly known.
International Justice Network Executive Director Tina Foster, whose group first filed the Bagram cases in 2006, calls the decision an “extremely big victory,” although it only applies to a narrow category of detainees.
“The point of the decision is that there isn’t a bright line rule, that you have to look at the individual circumstances,” Foster says.
The case was brought on behalf of four Bagram detainees, three of whom were given the rights to pursue the habeas claims. The Justice Department had sought to dismiss their challenges, arguing that the Military Commissions Act stripped the courts of jurisdiction.
That was the argument first advanced by the Bush administration, and later adopted by the current White House. Many human rights advocates were surprised and angered when the Obama administration decided not to change course on its policy toward Bagram.
Bates found that the fourth petitioner, Haji Wazir, did not have a right to an American court hearing because he was an Afghan native. The judge found that in keeping with the Supreme Court’s decision in Boumediene v. Bush, he could not allow Afghan citizens like Wazir to challenge their imprisonment as it would place an excessive burden on U.S. policy efforts in Afghanistan.
If a court were to order an Afghan detainee released, they would likely have to be sent back to their home country, Bates wrote. Such a release “could easily upset the delicate diplomatic balance the United States has struck with [Afghanistan],” he explained.
Bates found that for detainees transferred to the prison after being captured in other countries, those considerations were not a concern. Although Afghanistan is still an active war zone, Bates wrote that the U.S. has “firm control” over the air base, and that it would not be impractical for the military to grant habeas review.
“The United States has provided detainees with far greater wartime process in past settings,” he wrote.
Bates also noted that it would be unfair to allow the government to strip suspected terrorists of their legal rights simply by moving them to a war zone.
“The only reason these petitioners are in an active theater of war is because respondents brought them there,” he wrote.
A Justice spokesman said lawyers for the department were still reviewing the court's order.
The decision may have also contained the seed for a new round of arguments over the constitutionality of the Military Commissions Act, which Congress passed in 2006 to strip federal courts of jurisdiction over military detention centers. Lawyers for the detainees had argued that the act violated the Supreme Court’s decision in United States v. Klein (1871), which found that Congress could not pass laws designed to change decisions in cases already pending before the courts.
Bates has asked for a new round of briefs on the issue before making a final decision on whether or not to dismiss Wazir's case.
UPDATE 3:26 p.m.