A federal judge in Washington, D.C., has handed the Pentagon a defeat in its effort to prevent three prisoners held by U.S. forces in Afghanistan from suing in federal court in the United States for their freedom.
Pentagon lawyers had argued that a U.S. Supreme Court ruling granting Guantanamo detainees the right to sue didn't apply to the men in Afghanistan. The Pentagon argued that Afghanistan was a traditional battleground and that it would be impractical to grant habeas corpus hearings to prisoners held there.
But U.S. District Judge John D. Bates disagreed, ruling that nearly all the standards the Supreme Court laid out in its Boumediene v. Bush decision granting Guantanamo detainees the right to sue apply to the situation of the three men.
Bates ruled that United States control over the detention facility in Afghanistan was no different from its control of Guantanamo (recall that the Bush administration attempted to argue that the U.S. courts had no jurisdiction at the Guantanamo Bay Naval Station because the navy base is really a part of Cuba, an argument the Supreme Court rejected).
Bates also ruled that the situation the three men in Afghanistan faced was essentially the same as the prisoners at Guantanamo. Like the men at Guantanamo, who'd been captured elsewhere and then brought to Guantanamo, none of the men held in Afghanistan had been captured there, Bates said. None is Afghan and none had a previous connection to Afghanistan.
Finally, Bates ruled that whatever led to their being declared "enemy combatants" by the Bush administration (the Obama administration no longer uses the phrase) certainly did not meet the Supreme Court's requirement for due process. That means they are entitled to a habeas hearing where a judge can decide whether they should be held or not.
It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries -- far from any Afghan battle field -- and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the same specter of limitless Executive power thje Supreme Court sought to guard against in Boumediene -- the concern that the Executive could move detainess physically beyond the reach of the Constitution and detain them indefinitely.
The public version of Bates's decision reveals no details of where the men were captured, except to say that two were clearly captured outside Afghanistan and that the third disputes that he was captured in Afghanistan. Those sections of the ruling were deleted from the public version as classified. According to Human Rights Watch, which issued a press statement on the ruling, one of the men, Amin al Bakri, was seized in Thailand in late 2002 while on a business trip. Bakri's father told Human Rights Watch he had to hire a private detective to find out what had happened to his son.
Bates deferred judgment in a fourth case, that of Haji Wazir, because Wazir is an Afghan. He said the arguments governing an Afghan citizen hadn't been sufficiently made, one way or another, to allow a ruling. That, too, is a defeat for the Pentagon, since Wazir's case remains active. Wazir's brother told Human Rights Watch that Wazir was living in Dubai and disappeared after going to the mosque. "We didn't know who had kidnapped him," HRW quoted the brother as saying.
What will happen next to the three is unclear. President Obama has ordered the review of the evidence against all of the men held at Guantanamo, but he's issued no similar order for men held at Bagram and it's not clear how many detainees there match the description of the three.