Arguing that the U.S. government has switched its detention policy at Bagram air base in Afghanistan, lawyers for three prisoners there have asked a panel of the D.C. Circuit Court to reconsider its ruling barring any challenges in U.S. courts by those held at the base outside Kabul.  In their rehearing petition filed Tuesday, the detainees’ counsel contended that the U.S. government is preparing for long-term detention of non-Afghans at Bagram, with no criminal charges, and is doing so to evade any oversight by U.S. courts.  (The May 21 ruling at issue was discussed in this post.)

Rehearings by Circuit Court panels are not common, and one of the arguments the new petition made — that the panel simply got it wrong — ordinarily would not be enough to gain a second look.  On that point, the detainees’ lawyers contended that the three judges’ unanimous opnion misunderstood the Supreme Court’s 2008 ruling in Boumediene v. Bush, creating a constitutional right of detainees at Guantanamo Bay in Cuba to challenge their imprisonment.  Boumediene, the petition said, set up a formula for courts to use in judging where habeas rights applied outside the U.S., and the Circuit Court panel did not follow that formula.

But the two other claims in the rehearing plea could carry more weight with the panel, because they go beyond whether the judges misapplied Boumediene.   One of those other arguments sought, in fact, to take advantage of a slight opening that the panel had left even as it barred habeas challenges by Bagram detainees.

Near the end of the May 21 opinion, the panel said that, in some future case, it might develop that the U.S. government would choose a foreign place to detain individuals precisely to put them beyond the reach of American courts. At this point, it said, that remained only a speculation, and the panel found no evidence of it in this case.

The new petition attempted to supply some evidence, and to tie it to an argument that the Executive Branch had attempted explicitly to “circumvent the rule of law.”   Saying that the Supreme Court in Boumediene had ruled out
“Executive gamesmanship” to get around habeas rights, the Bagram detainees said that government officials have engaged in that very kind of “manipulation” in using the Afghan facility as part of a broader government “rendition” program for captives suspected of terrorism.

Bagram, from the time it was set up as a detention facility, the peititon said, was to be a “collection site” for prisoners who would later be sent to Guantanamo for further detention.  Both Bagram and Guantanamo, it contended, “were selected due to their perceived insulation from judicial scrutiny…The heart of the Bagram/Guantanamo strategy was to take people away from rather than to justice, sharply deviating from settled law and practice.”

Even before the Supreme Court ruled in Boumediene, the petition asserted, the question of habeas rights overseas was being “increasingly contested,” and, “not coincidentally,” the population at Bagram began to rise “dramatically.”  Simultaneously, transfers from Bagram to Guantanamo “dropped significantly.”   That made Bagram more important to the government as a detention site, the petition said.

The petition’s other argument, that the panel should reconsider because of changed cirucmstances at Bagram after the panel took this case under advisement, contended that the U.S. government began transferring Bagram detainees to Afghan government control.   Later on, the government gave the Afghans control, beginning in 2011, of the Bagram detention site along with custody of Afghans being held there.   But, most recently, the petition said, the U.S. government has indicated it intended to retain control over part of the facility, to hold and interrogate individuals seized from outside of Afghanistan.  Thre three individuals in the case contend that they were captured elsewhere and taken to Bagram.

All of this, without any mention of due process rights for non-Afghans at Bagram, added up, the petition argued, to a strong indication that the U.S. government plans to imprison non-Afghans at Bagram ”for the foreseeable future.”

The petition suggested, therefore, that the panel send the case back to U.S. District Judge John D. Bates to ponder the significance of the changed circumstances.

Presumably, the Justice Department will reply to the new petition, if asked to do so by the Circuit Court panel.

Posted in Detainee Litigation