New opening for Bagram challenge
on Feb 15, 2011 at 6:32 pm
Nine months after losing their chance to challenge prolonged U.S. military detention in Afghanistan, three detainees at the Bagram air base outside of Kabul on Tuesday gained at least a temporary new chance to try to revive their claim. U.S. District Judge John D. Bates ruled that the three non-Afghans had put forth enough new arguments that things have changed at Bagram to keep their case going for the time being, even in the face of stern opposition by the Obama Administration, which has argued that the detainees have no legal rights in U.S. courts. Bates’ order is here, and an opinion explaining it is here.
The judge expressed some skepticism about some of the new evidence, but withheld any ruling on it. Among other claims the detainees are making is the assertion that the U.S. government is using the Bagram facility to house not only combat captives from military operations in Afghanistan, but detainees captured outside the country, and sent to Bagram to put them beyond the reach of U.S. courts — the way it allegedly did in setting up the detention facility at Guantanamo Bay, Cuba, in early 2002.
Judge Bates on Tuesday allowed the three Bagram prisoners to file formal new habeas pleas, and said the Administration would be allowed then to ask that those be dismissed on the theory that they would not justify jurisdiction in Bates’ court. The new petitions are due by March 28, and the Administration dismissal motion by May 12. The judge did turn down, for now, the detainees’ plea for a new round of formal questioning of government officials to nail down just what is actually happening with detainees at Bagram.
Judge Bates had ruled in April 2009 that, under the Supreme Court’s 2008 decision in Boumediene v. Bush involving detainees at Guantanamo Bay, non-Afghan detainees being held by the U.S. military at Bagram have a similar right to test their detention in U.S. courts. He ruled against U.S. court authority to hear challenges by Afghans held at Bagram.  The D.C. Circuit Court last May overturned the ruling, finding that habeas rights do not exist at Bagram, even for non-Afghans.
Based on what the three detainees’ lawyers contended were new facts about how the U.S. was changing its detention operations at Bagram, they asked the Circuit Court to reconsider. It refused, last July 23, but said its denial of rehearing was “without prejudice” to the prisoners’ “ability to present this evidence to the District Court in the first instance.”  Back in Judge Bates’ District Court, the detainees’ counsel then sought permission to file new habeas petitions, to lay out their claims.
The Administration contended that the allegations were not new, and that, in any event, they would not be strong enough even to withstand a government motion to dismiss.  The new petitions, government lawyers contended, should not even be allowed to be filed.
Judge Bates, however, said Tuesday that the government in opposing the new petitions’ filing had actually engaged in an extensive discussion of the new claims. At this stage, the judge added, the two sides’ legal filings “reveal vastly different assessments of the additional evidence.” And, he said, the government had “a fair point that recent developments as borne out by the new facts may not significantly alter” the way the D.C. Circuit looked at the jurisdictional issue.
Still, Bates concluded, the assessment of the new assertions would be best handled by letting the three individuals’ lawyers file their new petitions, containing their factual claims, and then let the government challenge those directly with a motion to dismiss.  While he would not allow new “discovery” pleas by the detainees, to gather additional evidence, Bates did say that, if they continue to believe that further discovery is needed once the government’s dismissal motion is filed, they could bring up that request again later.
The three individuals in the case are Fadi Al-Maqaleh, Amin Al-Bakri, and Redha Al-Najar. Al-Maqaleh and Al-Bakri are Yemeni nationals, and Al-Najar is a Tunisian. Each has contended that they were captured outside of Afghanistan, and then taken to Bagram air base for prolonged detention.
The Administration has argued that it is giving non-Afghans at Bagram regular reviews of their status, and the need for continued detention. It has begun handing over some Afghan nationals to the government of Afghanistan, for trials if it deems that necessary. Non-Afghans may continue to be held, the government has conceded, but it has argued that it does not plan to hold them any longer than is necessary, and would not hold them beyond the end of U.S. military operations in Afghanistan.
