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New chance for Bagram test

Setting the stage for a new challenge to the U.S. government’s use of a prison in Afghanistan to hold detainees who had been captured outside that country, the D.C. Circuit Court has told lawyers for three prisoners there that they may offer new evidence to a federal judge in a renewed test of their captivity.  The lawyers have argued that the evidence shows a government plan to hold prisoners there indefinitely, and without charging them with any crime.  The Justice Department has not yet responded to that claim, but will have a chance do so when the case returns to U.S. District Court.

The Circuit Court, in a brief order dated last Friday, refused to reconsider its own May 21 ruling that U.S. courts may not hear challenges to detention by the U.S. military at the Bagram prison, located on an air base outside of Kabul.  But the panel did so without itself evaluating the detainees’ new claim, and said that its denial of rehearing was “without prejudice” to the detainees’ opportunity to offer their evidence to a District judge “in the first instance.”   It acted without seeking the views of the Justice Department on the government’s current policy at Bagram — a further indication that it was holding off for now any further ruling on courts’ authority to inquire into that policy’s legality.

Reports have been circulating for weeks in Washington and elsewhere that the U.S. government, after a planned turnover of much of the Bagram prison facility to the Afghan government, intended to retain a part of it to house non-Afghan prisoners for interrogation about alleged terrorist activities or ties.   One report, citing the International Red Cross, said there were indications that the U.S. was holding non-Afghans in a separate part of the prison facility.  Relying on those reports, counsel for the three non-Afghan detainees contended in a rehearing plea to the Circuit Court that the Obama Administration was now seeking to “manipulate” the use of Bagram as part of a broader program of “rendition” of suspects rounded up beyond Afghan borders.

The rehearing petition was filed July 6.  Under the Circuit Court’s usual practice, no response could be filed to that plea unless the Court requested one.  It did not do so, and took no action on the petition until issuing its new order last week.  The order noted that the claim of new evidence was based on information “not in the record.”  The information allegedly came to light after the Circuit Court had held a hearing in the case on Jan. 7, and some of it came after the panel issued its ruling May 21 — and it thus was not considered by the panel.  The order added that  the detainees’ lawyers were now contending that the “government’s decision to transfer the Bagram prison facility to Afghan control undermines the rationale” of the May 21 decision.

That is the claim that the Circuit Court has now cleared for renewal before U.S. District Judge John D. Bates.  Earlier, Bates had ruled that the Supreme Court’s 2008 decision in Boumediene v. Bush had laid down a formula that U.S. judges could use in evaluating whether a prisoner hold abroad by the U.S. government was entitled to pursue a habeas challenge in U.S. courts to that confinement.  Judge Bates found that, at least for non-Afghans captured outside of Afghanistan and then transferred to Bagram, they could seek habeas relief from captivity.  That was the ruling the Circuit Court overturned in late May, leading to the rehearing plea.  (Bates rejected habeas rights for Bagram prisoners captured inside Afghanistan.)

The detainees’ lawyers contended in their rehearing plea that the Executive branch of the U.S. government was engaging in the very kind of “gamesmanship” to detain people beyond the reach of U.S. courts that the Supreme Court had condemned in the Boumediene decision (which dealt specifically with detainees at the U.S. Navy facility at Guantanamo Bay, Cuba).

Lawyers for the three non-Afghans have the option of pursing their claim anew before Judge Bates, or seeking to take the case on to the Supreme Court to challenge the Circuit Court’s May decison.  The latter option seems unlikely, because it might have little chance of getting reviewed, since the Circuit Court had give the detainees’ another chance to press their case before Judge Bates.

The case in the Circuit Court was Al-Maqaleh, et al., v. Gates (the lead case docket there is 09-5265).  In District Court, it is docketed as 06-1669.