Trying to take advantage of the Supreme Court’s last major ruling on the rights of foreign nationals held by the U.S. military outside of the country, lawyers for five detainees at a U.S.-run military prison in Afghanistan on Tuesday asked the D.C. Circuit Court to give them a chance to challenge those captives’ prolonged imprisonment.  The plea was met mainly with skepticism by two of the three judges on the panel; the third made no comments and asked no questions.

Basically at issue during a hearing that lasted about seventy minutes was whether the Supreme Court’s 2008 decision in Boumediene v. Bush, giving detainees at Guantanamo Bay in Cuba a right to go into U.S. courts to test their captivity, will be extended to some prisoners at the Bagram prison run by allied forces during the continuing war in Afghanistan.

At Bagram, the U.S. military holds about sixty individuals who were captured outside of Afghanistan, but transferred there for captivity that has lasted as long as thirteen years.  Previously, the U.S. military had custody also of hundreds of Afghan nationals held there, but all of those have now been transferred to the control of the Afghan government.

The Obama administration, like the Bush administration before it, has strongly resisted efforts by Bagram prisoners to enter U.S. courts to seek their release from detention.  A Justice Department lawyer, Sharon Swingle, continued to press that argument as she jousted on Tuesday with three lawyers representing detainees.

With the U.S. seeking to end its active military involvement in the Afghan war by the end of next year, Swingle repeated the government’s recent claim that it “wants to get out of the detention business” at Bagram.   Some of the lawyers for the detainees, however, argued that there is no assurance that the U.S. military would free any of those it is holding there even after the main U.S. military force had departed.  The U.S. has built a new prison facility on the air base, and that may not be closed down, according to New York attorney Tina M. Foster, who represents three non-Afghan detainees.

Although the hearing ranged over a variety of legal issues, the two judges who actively questioned the lawyers seemed to be most concerned about extending the Boumediene right to challenge from Guantanamo — where there are no armed hostilities now — to the “war zone” in Afghanistan.  Government lawyer Swingle went to some lengths to reinforce the judges’ skepticism, saying that it would be a major complication for the military to have to take on the habeas challenges even as it was seeking to end the Afghan mission and prepare the Afghan government for going it alone in the future.  The more the military has to deal with detainees’ lawyers, she said, the more it loses control of the detention operation in the war zone.

Detainee lawyer Foster, however, countered that the Afghan government — with substantial help from the U.S. military — has conducted hundreds of criminal trials of Afghan detainees at the prison, without disrupting military operations in any way.  That shows that having some form of legal proceeding going on would not disrupt any military action, Foster argued.

More than three years ago, in May 2010, a different panel of three D.C. Circuit judges ruled that U.S. courts have no authority to hear habeas challenges by detainees at Bagram.  However, the court of appeals at that time allowed detainees’ lawyers to offer new evidence to show that conditions had changed, and that might change the legal consequences.

Foster, focusing on developments over the past three years, said the operation of the criminal trial system on the air base near Kabul showed that judicial processes could go on there, cited a letter from a high-level aide to Afghan President Karzai saying that habeas rights for non-Afghan detainees at Bagram would not offend the Afghan government, and noted that the U.S, had built what appeared to be a permanent new prison for those it is holding — the non-Afghans.

Even so, Circuit Judge Thomas B. Griffith and Senior Circuit Judge Stephen F. Williams did not appear to be persuaded that those changes were enough to change the court’s mind from its conclusion in 2010.   Both seemed less than impressed with the letter from the Karzai aide, suggesting that there was no proof it actually spoke for the Karzai government.

Why not get a letter from Karzai himself, Judge Williams asked.  Foster countered that the U.S. government was in a far better position to do that than were detainees’ lawyers.

Eric L. Lewis, a Washington, D.C., lawyer for a Pakistani national, named Amanatallah, joined Foster in pleading for habeas rights for the Bagram non-Afghan prisoners.   His client, Lewis said, was actually captured by British forces in Iraq, and the U.S. military had no reason to ship him to Afghanistan other than to try to keep him out of reach of U.S. courts.

The third lawyer on the detainee side, John J. Connolly of Baltimore, brought into Tuesday’s discussion a plea for special favorable consideration of the plight of minors who get caught up in the war on terrorism.   His client, Hamidullah, a Pakistani, was only fourteen years old when he was captured.  Government lawyer Swingle, in countering Connolly’s argument, contended that the important fact is that Hamidullah is now nineteen years old, and that is what counts in judging the legality of his detention.

The two judges who took an active part in the questioning did spend some time exploring with Swingle whether the U.S. government had made an explicit policy decision to put war-on-terrorism detainees at Bagram in order to ensure that U.S. courts could not reach them.  Swingle insisted there was no evidence to support any such assertion.

There is no timetable for the D.C. Circuit panel to issue its ruling.

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, New plea for Bagram detainees, SCOTUSblog (Sep. 17, 2013, 4:51 PM), http://www.scotusblog.com/2013/09/new-plea-for-bagram-detainees/