Obama Follows Bush Policy on Detainee Access to Courts

By R. Jeffrey Smith
Washington Post Staff Writer
Saturday, April 11, 2009

The Obama administration yesterday appealed a judge's decision granting three detainees at a U.S. military prison in Afghanistan the right to challenge their detention in U.S. courts, arguing partly that compliance would inhibit the future capture of Pakistani citizens for detention by U.S. forces in Afghanistan.

The appeal makes clear that, despite the ruling this month by U.S. District Judge John D. Bates, the Obama administration for now wants to stick with a policy set by President George W. Bush that those incarcerated by U.S. troops in foreign prisons have no U.S. legal rights. But officials said that did not foreclose a change of heart after the completion in July of a comprehensive review of detainee policy.

"While that review is pending, we concluded that it was necessary to appeal this ruling," said Justice Department spokesman Dean Boyd. Otherwise, he said, the detainees would immediately have access to U.S. courts, which the administration has long said would impose large burdens on its military forces in the region.

Bates rejected that argument in his ruling, which he said affected only non-Afghans, a limited subset of the detainees at Bagram air base. The government has not said publicly how many of the approximately 600 people detained there are non-Afghans, but independent groups say there could be as few as a dozen. Two of the three involved in the litigation are Yemeni, and one is Tunisian.

The department argued in its appeal that the consequences of immediate compliance would be severe. If foreigners brought to Bagram could legally challenge their incarceration, "the military would be unable to move non-Afghan citizens captured across the border in Pakistan" into the prison for "security or centralized intelligence gathering" without having to defend the transfers in court, it said.

Holding such proceedings would force the military to reveal details about the "the place of capture" and the "identity of U.S. or foreign forces or entities" that conducted the operation, the appeal said. It added that keeping records on such matters and litigating the cases would divert U.S. forces from their counterterrorism missions.

Tina Foster, an attorney for the International Justice Network, which represents the three Bagram detainees at the center of the case, said she found it surprising that the administration was still clinging to the Bush policy that it could capture chosen suspects in foreign countries and hold them indefinitely overseas without justifying its decisions.

"I really thought Obama meant it when he said this is going to be the end of an overreaching executive who asserted he had the power to take people and lock them up and throw away the key, no matter whether they've done anything or not," Foster said. "It's absolutely ridiculous that we should wait until the administration decides [on its policy] until we give three people who have been sitting in prison for six years the right to say, 'I'm being held without any basis.' "

Staff researcher Julie Tate contributed to this report.

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