The Obama Administration argued strenuously on Monday that the Supreme Court’s 2008 decision providing a right for imprisoned terrorism suspects to challenge their captivity does not apply to “approximately 600 long-term detainees” now being held by the U.S. military in Afghanistan.  “Habeas rights under the United States Constitution,” government lawyers argued in a 64-page legal brief,  “do not extend to anemy aliens detained in the active war zone at Bagram Airfield in Afghanistan.”

The new brief can be downloaded here.  It was filed in the D.C. Circuit Court, in Maqaleh, et al., v. Gates, et al. (lead case docket 09-5265), seeking to overturn a federal judge’s ruling that the Justices’ ruling in Boumediene v. Bush does apply to at least three prisoners at Bagram.  The three are Fadi Al Magaleh and Amin Al Bakri, both Yemenis, and Redha al-Najar, a Tunisian.

The arguments rely primarily upon the government’s interpretation of Boumediene itself, as well as a post-World War II precedent — Johnson v. Eisentrager (1950).  The legal contentions are summarized beginning at numbered page 18 of the main document that is linked above.  In an Addendum, the Administration provides documents spelling out new procedural arrangements at Bagram for reviewing the continuing detention of the individuals held there.

The Circuit Court is reviewing a decision last April by District Judge John D. Bates opening habeas rights to non-Afghans captured outside of Afghanistan but now held at the Bagram detention facility run by the U.S. military at an airbase 40 miles from Kabul.   He found that the Supreme Court’s Boumediene decision, although written to cover only the situation at Guantanamo Bay, outlined principles that would apply to other detention sites where the U.S. has a strong degree of control.

In the new Administration brief, it argued simply that Judge Bates was wrong about Boumediene.  That ruling, it contended, was narrow in scope, confined to Guantanamo’s situation.  It would be an “unwarranted extension of such a singular precedent,” the brief said, to extend it “from the peaceful locale of Guantanamo to the war-torn zone of Afghanistan….Bagram Airfield is in the middle of an active theater of war…Bagram is fundamentally different from the ‘isolated’ military base at Guantanamo.”

“This is the paradigmatic case,” it added, “in which lower courts should tread cautiously in extending a new and unprecedented Supreme Court decision beyond the specific contextin which it was announced.”  The Court in Boumediene “made clear that its decision was dependent on the extraordinary nature of the United States presence in Guantanamo.”

The Administration disputed Judge Bates’ finding that the lack of adequate procedural safeguards for those held at Bagram should be taken into account in determining whether the prisoners there should have habeas rights.  The method for judging who must remain confined at Bagram, the brief asserted, has nothing to do with the basic question of whether the constitutional right of habeas should apply there.

But, to the extent that the procedures for deciding on detention at Bagram do make a legal difference, the brief stressed that the government was increasing the legal options for prisoners there to challenge their ongoing confinement.   Those new procedures, it added, “address [Judge Bates’] concerns. Those procedures, which it said will go into effect this month after a waiting period for review by Congress, “support, rather than undermine,” the conclusion that the Bagram detainees do not have a constitutional right of habeas.

To bolster its contention that Boumediene should not reach to Bagram, the government filing said that, to do so, would make it possible for individuals held by the U.S. military anywhere in the world to go into U.S. courts to challenge their detention abroad, so long as they were held in a country other than their own.

The brief expresses mild resentment over Judge Bates’ suggestion that the U.S. military may be using the Bagram prison site as a way to put detainees beyond the reach of American civilian courts.  “The court’s fears of Executive abuse were not justified,” it said. “When the U.S. Government holds someone for an extended peiod of time at Bagram, it does so of necessity, not because of whim or convenience….The United States has no interest in holding detainees longer than necessary.”

Lawyers for the three non-Afghan detainees involved in the case are to file their merits brief on Oct. 30.  The Administration’s reply is due Nov. 16.  No date has been set for oral argument in the Circuit Court.

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