3 Detainees in Afghanistan Can Challenge Imprisonment in U.S. Court, Judge Rules

By Del Quentin Wilber and Karen DeYoung
Washington Post Staff Writers
Friday, April 3, 2009

A federal judge ruled yesterday that three detainees at a U.S. military prison in Afghanistan may challenge their confinement before a U.S. court, handing the Obama administration one of its first legal defeats on a claim of executive power.

U.S. District Judge John D. Bates rejected the government's argument, first made by the Bush administration and later adopted by the Obama Justice Department, that it could detain prisoners indefinitely in a "war zone."

In a 53-page ruling, Bates said that the situation of the three detainees at Bagram air base -- who were captured elsewhere and transported to Afghanistan by U.S. forces -- is "virtually identical" to that of prisoners held by the military at Guantanamo Bay. A landmark Supreme Court ruling last year accorded habeas corpus rights to detainees at that facility in Cuba.

The ruling is likely to complicate the administration's ongoing review of detainee policies. President Obama criticized his predecessor's denial of rights to and treatment of alleged terrorists and during his first week in office ordered Guantanamo Bay to be closed this year. A high-level administration task force is studying what to do with detainees deemed too dangerous to release.

For the moment, the ruling lays to rest some of the concerns voiced by human rights groups that Bagram, a secretive prison that has generally escaped public scrutiny, could become a replacement destination for suspected terrorists. A Justice Department spokesman said no decision has been made on whether to appeal the decision.

The government has more than 600 prisoners at Bagram, and the military is building a new prison there designed to hold more than 1,000, four times the number held in Cuba. The ruling yesterday potentially applies to only a few dozen detainees: Afghan citizens and those captured on the Afghan battlefield are not included.

"The only reason the [prisoners] are in an active theater of war is because [the government] brought them there," Bates wrote in denying a government motion to dismiss lawsuits brought by the detainees in D.C. federal court. He ruled that the detainees -- two Yemenis and a Tunisian -- have a right to habeas corpus, a centuries-old legal doctrine that permits prisoners to go to court to challenge their detention.

Human rights groups and attorneys for the detainees hailed the ruling as a major victory in their efforts to ensure judicial oversight of such prisons.

Ramzi Kassem, an attorney for one of the men, said: "This is a great day for American justice. Today, a U.S. federal judge ruled that our government cannot simply kidnap people and hold them beyond the law."

Legal scholars said the opinion is significant because it challenges the government's long-held position that it can detain people without cause in active combat zones.

"It raises the possibility that there can be judicial involvement elsewhere in the world," said Robert Chesney, a professor of national security law at Wake Forest University. "Whether this is a good or bad thing it's not entirely clear."

Bates emphasized that his decision to grant habeas rights to those at Bagram is limited and that it applies only to prisoners captured outside Afghanistan. The detainees' attorneys say the three men were picked up outside the country and later imprisoned at Bagram. They have been held there since at least 2003.

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