NOTE: This post has been corrected to show that the hearing is Wednesday, not Tuesday.

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Since June, and the Supreme Court’s ruling in Boumediene v. Bush, it has been clear that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo Bay, Cuba, have a constitutional right to challenge their captivity in U.S. courts in Washington.  On Wednesday, a federal judge will begin exploring whether Boumediene‘s result reaches another military prison where the U.S. now holds perhaps three times the number of detainees still left at Guantanamo Bay — the “Bagram Theater Internment Faciltliy” at an airfield some 40 miles outside of Kabul, Afghanistan.

The military objective of Bagram is fundamentally the same as it was at Guantanamo: set up a facility where battlefield captives could be processed, then held for the duration of the “war on terrorism,” or released if found not to be dangerous militarily.  And a secondary objective was the same at each place: retain full military control over the fate of the detainees by putting them in an overseas site beyond the reach of U.S. courts — 1,100 miles away in Cuba, and 7,000 miles away in Afghanistan.

The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo from the courts’ review.  But the Justice Department will be making an argument that none of those rulings has any application to the prison at Bagram Airfield, and that, therefore, a federal judge should dismiss legal challenges by Bagram detainees by finding that U.S. courts have no jurisdiction over them.

Countering that argument, lawyers for detainees in four Bagram cases will be contending that, not only does the Boumediene decision reach that far, so does a decision the Supreme Court announced on the same day as Boumediene Munaf v. Geren, extending habeas rights to a U.S. military facility in Baghdad, Iraq.

Starkly contrasting interpretations of those two rulings emerge in briefs filed by the two sides in the Bagram cases.  Typical are the briefs filed in Wazir v. Rumsfeld (District Court docket 06-1697).  (Those with access to PACER can find the Wazir documents under that docket number at the District Court’s website; the government motion to dismiss is docket number 12, the detainees’ opposition is docket number 15, and the government reply is document 18.) The other cases are Maqalah v. Rumsfeld, 06-1669; Al Bakri v. Gates, 08-1307, and Al-Najar v. Gates, 08-2143.

In ordering a hearing for 10 a.m. Wednesday, District Judge John D. Bates made clear he would be focusing on whether his court has any authority to rule on the Bagram detainee claims.  He told lawyers not to expect to spend much time on any other issue in the cases.

The Justice Department argued in its motion to dismiss that Bagram is so much a part of ongoing military operations that there simply is no role for U.S. courts to play.  “Federal courts should not thrust themselves into the extraordinary role of reviewing the military’s conduct of active hostilities overseas, second-guessing the military’s determination as to which captured aliens as part of such hostilities should be detaine, and in practical effect, superintending the Executive’s conduct in waging a war,” the motion said, adding “To provide alien enemy combatants detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically.”

The U.S. does not have nearly the control over the Bagram Airfield as it does over Guantanamo Bay, and thus the reasoning of the Supreme Court in extending habeas rights to Guantanamo should not apply to Bagram, the motion contended.  Moreover, it noted, Bagram is in the very midst of a war zone; Guantanamo is not.  It asserted that civilian court review of Bagram detentions would actually compromise the military mission in Afghanistan.

While the U.S. does control the prison facility at the airfield where it holds detainees, that should not be enough to extend habeas rights to prisoners there, the motion said. “Were U.S. control of the detention facility or custody of the habeas petitioner alone sufficient, then [constitutional habeas rights] would have worldwide application, allowing all individuals captured by the United States during hostilities overseas to seek review in U.S. courts.”

The Munaf decision also has no application to Bagram, the motion contended, because that involved U.S. citizens, not foreign nationals.

The Justice Department also contended that the Boumediene decision, while providing habeas rights by striking down a federal law that denied those rights at Guantanamo, did not invalidate another part of the same federal law that denies habeas claims to detainees held by the U.S. anywhere else in the world.

Lawyers for the Bagram detainees noted that some of them have been held for more than six years, so any argument the Justice Department might have made against habeas rights abroad has now lost its force “after so much time has passed.”

The issue as to Bagram, the brief argued, “is whether the Executive can create a modern-day Star Chamber, where it can label an individual an ‘enemy combatant’ or ‘unlawful enemy combatant,’ deny him any meaningful ability to challenge that label, and on that basis, detain him indefinitely, virtually incommunicado, subject to interrogation and torture, without any right of redress.”

Three times, the brief said, the Supreme Court has rejected such efforts at Guantanamo.  Even so, it added, the government seeks “to revive their effort to create a prison beyond judicial scrutiny by arguing that habeas does not extend to Bagram because they have deliberately located their Star Chamber in an airfield they contend is outside their ‘realm,’ for the express purpose of avoiding compliance with domestic civil, criminal, military, and international law.”

Bagram, the brief contended, “is not a temporary holding camp, intended to house enemy soldiers apprehended on the battlefield, for the duration of a declared war, finite in time and space.”  In fact, it said, the “war on terror” as conceived by the government is “unlimited in duration and global in scope.”

And, unlike Guantanamo, Bagram is a permanent prison, it said. Thousands of individuals from all over the world have been taken to the airfield prison, and nearly 700 remain there now, and it is being expanded with a new prison to hold more than 11,000.  Moreover, the brief argued, Bagram detainees do not even have the minimal procedural guarantees to have their captivity reviewed that Guantanamo prisoners have in the so-called “Combatant Status Review Tribunals.”  The military does not operate CSRTs as Bagram.

There is no timetable for Judge Bates to rule on the motion to dismiss.

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