U.S. appeals court wary of habeas corpus challenge by detainees in Afghanistan

By Del Quentin Wilber
Washington Post Staff Writer
Friday, January 8, 2010

An appeals court expressed uneasiness Thursday with the ramifications of allowing some detainees at a U.S. military prison in Afghanistan to challenge their imprisonment in federal court.

The three judges of the U.S. Court of Appeals for the D.C. Circuit voiced their apprehension during oral arguments in the government's appeal of a lower court ruling that granted three detainees at Bagram Air Base the right to contest their confinement under habeas corpus, a centuries-old legal doctrine. The judges seemed concerned that upholding the decision might extend such rights to other detainees abroad.

The Justice Department has argued that U.S. District Judge John D. Bates erred in granting the three detainees, two Yemenis and a Tunisian, the right to contest their confinements in federal court. The detainees claim that they were captured outside Afghanistan and brought to the U.S. prison at Bagram Air Base, northeast of the capital of Kabul. They have been held for at least six years, their attorneys say.

Bates relied heavily on the Supreme Court's landmark 2008 opinion that granted Guantanamo Bay prisoners habeas corpus rights. In his April opinion, Bates interpreted the Supreme Court decision to mean that some detainees in other prisons also could challenge their confinements before judges.

Bates wrote that the Bagram detainees are "virtually identical" to those at the prison in Cuba because they were captured overseas and brought to Afghanistan. The judge did not apply the rights to the vast majority of detainees at Bagram, who are Afghans or were captured in Afghanistan.

The Justice Department argues that Bates's ruling is flawed because Bagram is in "a highly active war zone," and dealing with federal court proceedings would hamper the war effort and complicate diplomatic relations with the Afghan government, federal attorneys wrote in court papers. Such concerns do not exist in Cuba, they say.

Attorneys for the Bagram detainees say that the only way to ensure that the government is properly holding them is for a judge to hear their case, they say.

During oral arguments, Judges David S. Tatel and Harry T. Edwards pushed one of the attorneys for the detainees, Tina Monshipour Foster, to craft an argument that would limit the reach of habeas corpus to just her clients at Bagram. They wondered whether granting such rights to the Bagram prisoners would extend habeas corpus to military bases across the globe. Such a ruling could be difficult to align with Supreme Court precedent, the judges suggested.

Foster said the judges could narrowly craft a decision applying only to her clients.

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