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In Courts, Afghanistan Air Base May Become Next Guantanamo
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By Del Quentin Wilber
Washington Post Staff Writer
Sunday, June 29, 2008

Jawed Ahmad, a driver and assistant for reporters of a Canadian television network in Afghanistan, knew the roads to avoid, how to get interviews and which stories to pitch. Reporters trusted him, his bosses say.

Then, one day about seven months ago, the 22-year-old CTV News contractor vanished. Weeks later, reporters would learn from Ahmad's family that he had been arrested by U.S. troops, locked up in the U.S. military prison at Bagram air base and accused of being an enemy combatant.

Lawyers representing Ahmad filed a federal lawsuit early this month challenging his detention on grounds similar to those cited in successful lawsuits on behalf of captives at the U.S. military prison at Guantanamo Bay, Cuba. The lawyers are hoping to turn Ahmad's case and a handful of others into the next legal battleground over the rights of terrorism suspects apprehended on foreign soil. More lawsuits are expected on behalf of Bagram detainees in coming months, the lawyers said.

The lawsuits seek the right of habeas corpus for the detainees. Habeas corpus is a centuries-old legal doctrine that gives people taken into custody the right to challenge their detention before a judge.

Although legal experts expressed uncertainty about the potential for success, the detainees' lawyers say they are optimistic. They note the Supreme Court's decision two weeks ago that granted detainees at Guantanamo Bay the right to challenge their detention in federal courts.

"They stopped sending people to Guantanamo and are sending them to Bagram instead," said Barbara J. Olshansky, who represents Ahmad and is the legal director of the International Justice Network, a nonprofit organization that provides legal support to detainees. "In some ways, we have a stronger case than Guantanamo."

The U.S. military referred questions about the habeas corpus petitions to the Justice Department and declined to confirm whether any of those who filed suits are being held at Bagram. A Justice Department spokesman declined to comment, saying lawyers are reviewing the Supreme Court's June 12 decision in Boumediene v. Bush and Al Odah v. U.S.

In legal filings, however, the Justice Department has fiercely fought the Bagram suits, arguing that "Bagram airfield is in the zone of war" and not in a peaceful locale such as Guantanamo.

"To provide alien enemy combatants captured at the battlefield and detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically," the government argued.

Human rights groups and activists have become increasingly concerned about the U.S. military prison at Bagram, about 40 miles north of Kabul. The prison has grown steadily over the years and has about 600 detainees, military officials said. The military is planning to spend $60 million to build a new, larger facility that would house the same number of captives but could accommodate as many as 1,000.

Some of the Bagram prisoners have been there since 2002, activists said. Although the vast majority were picked up in Afghanistan, activists and lawyers say at least a few were arrested in other countries.

"It provides a convenient place to hold people who you might not want the world to know you are holding," said Tina Monshipour Foster, a lawyer who represents Bagram detainees.

Military officials would not say whether people arrested in other countries are housed at Bagram. But they said they regularly review each detainee's status, release those who are no longer thought to be combatants and turn others over to Afghan authorities.

Haji Wazir, whose federal lawsuit was filed in 2006, has been held as an enemy combatant since 2002, according to lawyers and human rights activists. But he "is not a commander, not a member of the Taliban or al-Qaeda," said Lal Gul, chairman of the Afghan Human Rights Organization. "He is a businessman."

Gul also complained about the arrest of Ahmad, whose bosses say they are frustrated that he has not had his day in court.

"We have been told nothing about him," said Robert Hurst, president of CTV News, who spent several days with Ahmad in 2006 while visiting Afghanistan. "When we ask, we are told we don't have the right to even ask that question. . . . Our reporters felt very secure around him. He is an excellent young journalist."

Legal experts say they are not sure how the courts will treat the lawsuits. The Supreme Court's majority opinion in the Guantanamo cases, written by Justice Anthony M. Kennedy, focused only on detainees held at the naval base in Cuba. In it, Kennedy took pains to examine the particular circumstances surrounding the detentions, according to David Cole, a law professor at the Georgetown University Law Center.

Among the factors that tilted the ruling in favor of the detainees: The government had complete control over Guantanamo, the detainees had been held for years without trial, and the prison was not near a battlefield.

Lawyers may be successful in applying similar tests to those being held elsewhere, Cole said.

"Bagram will be the next battleground," he said. "Kennedy's decision in Boumediene leaves open the question as to what other places the writ of habeas corpus extends."

Other legal scholars said they think the courts will be reluctant to grant Bagram detainees such hearings, because the prison is in an area that the U.S. military considers a war zone.

Kennedy alluded to that issue when he wrote that "if the detention facility were located in an active theater of war, arguments that issuing the writ would be 'impracticable or anomalous' would have more weight."

"It seems unlikely that the conditions there are comparable to the conditions" at Guantanamo Bay, said Jonathan Siegel, a law professor at George Washington University.

But Siegel added that Kennedy and other justices "expressed impatience with the notion that the United States can hold people indefinitely without charge."

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