A federal judge in Washington is assessing for a second time whether certain detainees at an airbase in Afghanistan should have access to U.S. courts to contest their continued military imprisonment.
The U.S. Court of Appeals for the D.C. Circuit in May 2010 overturned U.S. District Judge John Bates' earlier ruling, a decision that went against the U.S. Justice Department. Bates ruled in favor of three non-Afghan detainees—a Tunisian and two Yemenis—in extending habeas rights to Bagram detainees. The U.S. Supreme Court in 2008 granted prisoners held at the Guantanamo Bay facility the right to use federal civilian courts to fight detention.
The appeals court, in overturning Bates, distinguished between the Bagram airbase, which is situated in a war zone, and the Guantanamo facility in Cuba, where the U.S. government has maintained control for more than a century. With the Bagram dispute back in the trial court, Bates is assessing the government's motion to dismiss the legal action.
Ramzi Kassem of the City University of New York Law School said in court today that the continued passage of time "makes a world of a difference" in cutting against the merits of continued detention at Bagram. The U.S. government, he also said, has demonstrated a capacity at Bagram to oversee trials there.
Kassem also said the detainees in the suit have been cleared for release "and yet they still languish" in military custody. The changed status of the petitioners, he said, came to light after the D.C. Circuit decision.
Jean Lin of the U.S. Justice Department's Civil Division argued today that nothing's changed between now and when the D.C. Circuit ruled against the Bagram prisoners.
Lin disputed that any of the three detainees had been cleared, drawing criticism from Bates. Lin said a top official at the Department of Defense hasn’t cleared the petitioners. The judge at one point questioned whether DOJ was holding back information regarding any recommendations about the clearance status of the prisoners involved in the suit.
In a related case argued today, Zuckerman Spaeder partner John Connolly argued that his client, a teenager identified in court papers as Hamidullah, should have access to U.S. courts to contest continued detention.
Connolly said the U.S. government has kept the teenager in custody since he was 14. He turns 18 this year, Connolly said. Bates questioned the extent to which a juvenile detainee can be granted habeas rights while those same rights are denied to adult prisoners.
Bates didn't immediately rule after more than two hours of argument.