Bagram detainees lose appeals case to challenge confinement

By Peter Finn
Friday, May 21, 2010; 11:06 PM

A federal appeals court ruled Friday that detainees held in an American-run prison in Afghanistan cannot challenge their confinement in federal court, a decision that denies prisoners at Bagram air base a legal right the Supreme Court has given to detainees at Guantanamo Bay, Cuba.

The panel of three judges of the U.S. Court of Appeals for the District of Columbia said that the United States does not exercise "de facto sovereignty" over the military base at Bagram, as it does at Guantanamo Bay, and that Afghanistan is an active theater of war. According to the court, those different circumstances preclude any extension to Afghanistan of the writ of habeas corpus, the legal basis detainees use to challenge their imprisonment.

"The United States asserts, and petitioners cannot credibly dispute, that all of the attributes of a facility exposed to the vagaries of war are present in Bagram," Chief Judge David Sentelle wrote in a 26-page opinion. The court cited a post-World War II Supreme Court opinion that rejected an appeal from Germans held overseas by the military. In that case, the Supreme Court said judicial oversight would "hamper the war effort and bring aid and comfort to the enemy."

The Bagram case was first brought on behalf of three detainees, two Yemenis and a Tunisian, who argued that they were picked up outside Afghanistan and should not be considered battlefield detainees. Last year, a federal judge ruled the three men had the right to petition the courts to seek their freedom, and distinguished them from the vast majority of the 800 or so detainees held by U.S. forces in Afghanistan.

The appeals court said the government could decide to hold detainees in active war zones to avoid habeas jurisdiction. But the court said there was no evidence of such manipulation in this case, and it reserved the right to examine any such claim in the future.

"We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation," the court wrote.

Lawyers for the detainees said they would appeal.

"It is a very dark day for the Constitution and the rule of law, however, it is not the last word," said Tina Monshipour Foster, executive director of the International Justice Network and lead counsel for the detainees. "This is an extremely disturbing precedent that allows the U.S. government to kidnap someone from any part of the world and never have to justify it, ever."

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