Judges Rule Against Detainees Held at Afghan Air Base

Judges Rule Against Detainees Held at Afghan Air Base
By CHARLIE SAVAGE
Copyright by The New York Times
Published: May 21, 2010
http://www.nytimes.com/2010/05/22/world/asia/22detain.html?hp


WASHINGTON — A federal appeals court ruled on Friday that prisoners being held without trial in Afghanistan by the military have no right to challenge their imprisonment in American civilian courts. The decision, overturning a lower court ruling in the detainees’ favor, was a victory for the Obama administration’s efforts to hold terrorism suspects overseas for extended periods without judicial oversight.

In a unanimous 26-page ruling, a panel of the United States Court of Appeals for the District of Columbia ruled that detainees who were captured outside of Afghanistan and brought to a military prison at the Bagram air base have no right to a hearing in which a judge would review the evidence against them and could potentially order their release.

Such habeas corpus rights do “not extend to aliens held in executive detention in the Afghan theater of war,” wrote David B. Sentelle, the chief judge of the appeals court, who was appointed by former President Ronald Reagan. His opinion was joined by Judges Harry T. Edwards, a Carter appointee, and David S. Tatel, a Clinton appointee.

The panel’s ruling reversed an April 2009 decision by a district court judge, John D. Bates, who had found that such detainees had the same constitutional rights that the Supreme Court has granted to similar prisoners who were flown to the military base at Guantánamo Bay, Cuba, instead of Bagram.

The ruling by Judge Bates, who was appointed by former President George W. Bush, had dealt a blow to government efforts to find a prison for holding terrorism suspects who are captured outside of the Iraq and Afghanistan war zones.

When the Bush administration set up the Guantánamo military prison in early 2002, it argued that civilian courts had no jurisdiction to interfere with executive-branch decisions about the detainees it brought there. But in a series of rulings, culminating in a 2008 case, the Supreme Court declared that such detainees could challenge the basis for their imprisonment in federal court, in part because the naval base there is, in effect, United States soil.

That ruling increased the importance of other overseas prisons, including the one at the Bagram air base. The Bush administration stopped bringing new detainees to Guantánamo, while arguing that Bagram remained outside court jurisdiction.

After taking office last year, the Obama administration continued that approach. President Obama also prohibited the Central Intelligence Agency from operating secret prisons for long-term detention, further elevating the importance of military prisons like Bagram.

Judge Bates’s ruling was narrow. It applied only to non-Afghans captured outside of Afghanistan — a status that applied to only about a dozen of the roughly 600 detainees being held at Bagram. He had reasoned that for such prisoners, concerns about court interference with a battlefield prison made no sense because the executive branch had chosen to transport them to the combat zone.

In overturning Judge Bates yesterday, the appeals court panel rejected arguments by lawyers for the detainees that the government would be able “to evade judicial review of executive detention decisions by transferring detainees into active combat zones, thereby granting the executive the power to switch the Constitution on or off at will.”

Judge Sentelle argued that there had been no such intent by the government with regard to the three detainees in the case, because each been brought to Afghanistan years before the Supreme Court extended constitutional rights to detainees at Guantánamo.

Still, he left the door open to approving habeas corpus rights for prisoners taken to prisons other than Guantánamo 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 speculation,” he wrote.

The case involves a Yemeni and a Tunisian who say they were captured in Pakistan, and another Yemeni who says he was captured in Thailand. They have been held for seven to eight years. All three deny they are terrorists.