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Bagram Detainees Use Constitution in Defense

July 17 2012 at 5:59 PM

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Bagram Detainees Use Constitution in Defense

Jul 17, 2012

Knight Ridder| by Michael Doyle
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Bagram Detainees with Working Dog

WASHINGTON - Prisoners held without trial for years at an American air base in Afghanistan shouldn't be able to challenge their indefinite detention with the help of the U.S. Constitution, Obama administration attorneys argued Monday.

Reinforcing a hard-line view that's prevailed in past court battles, the administration said again that the foreign-born detainees at Bagram Air Field lacked the habeas corpus rights that the U.S. Supreme Court has extended to those held at the American naval base at Guantanamo Bay, Cuba.

"We want to prevent enemy fighters from returning to the battlefield," Justice Department attorney Jean Lin told a federal judge, while adding that "the United States does not intend to hold anyone longer than necessary."

About 3,200 prisoners reportedly are being held at Bagram, including about 50 who aren't natives of Afghanistan. The latter prisoners are the ones whose legal rights are now on the line.

Lin said "nothing has changed to alter" an appellate court's 2010 finding that the constitutional protections didn't cover Bagram, but the detainees' attorneys cited both the passage of time and the discovery of some new facts, including a demonstrated ability to hold trials at Bagram. In what could yet become a landmark case, U.S. District Judge John D. Bates must decide whether these new considerations are enough to justify another effort at extending constitutional protections overseas.

In April 2009, Bates ruled that non-Afghan natives seized outside Afghanistan and taken to Bagram could challenge their detention through the constitutionally protected right of filing a habeas corpus petition. A habeas petition challenges the lawfulness of an individual's detention, compelling the government to provide some justification. In 2010, the U.S. Court of Appeals for the District of Columbia Circuit reversed Bates.

"How can I possibly make a decision that goes in a different direction from the D.C. Circuit?" Bates asked Monday morning during a two-hour hearing.

At the same time, Bates pressed the Justice Department hard on whether changing circumstances, including a slowdown in fighting and the coming withdrawal of most U.S. forces from Afghanistan, might warrant a second look.

Bates further suggested there might be evidence that U.S. officials had shipped prisoners to Bagram specifically to avoid judicial oversight.

"Our clients are being kept at Bagram to circumvent (a court's) jurisdiction," argued Ramzi Kassem, a City University of New York associate law professor who's an attorney for several detainees.

Kassem and the nonprofit International Justice Network represent three of the non-Afghan citizens at Bagram:

-Fadi al-Maqaleh is a Yemeni citizen who was transferred to Bagram from the Abu Ghraib prison in Iraq in about 2004, allegedly after being held in secret, CIA-run prisons.

- Amin al-Bakri is a 43-year-old Yemeni father of three who was seized while on a business trip to Thailand. He says he was tortured at secret CIA "black sites" and then relocated to Bagram in approximately 2003.

- Redha al-Najar is a 46-year-old Tunisian who was seized in Pakistan. He also says he was initially detained and tortured at secret CIA facilities before being sent to Bagram in approximately 2003. Specific charges haven't been levied.

The detainees' attorneys say a U.S. military detainee-review board has cleared all three men for potential release.

"And yet," Kassem said Monday, "they still languish."

Lin, the Justice Department's attorney, declined to acknowledge what recommendations the review board had reached, but argued that it's "entirely irrelevant" to the question of whether a U.S. court has habeas corpus jurisdiction over the foreign prisoners.

A crucial element in the appellate court's 2010 decision denying habeas corpus rights to Bagram detainees was the observation that Bagram, unlike Guantanamo, is "exposed to the vagaries of war" because of its location in an active war zone and the possibility that a trial might interfere with war fighting. Detainees' attorneys say that subsequent experience with trials for Afghan prisoners has demonstrated that the judicial system can coincide with military action.

"Clearly, it has not brought the war effort to its knees," Kassem said.

A March 2012 memorandum of understanding between the United States and Afghanistan calls for Bagram detainees to be transferred to Afghan control, but it keeps the 50 or so detainees who aren't Afghan natives - such as al-Maqaleh, al-Bakri and al-Najar - under U.S. control.


Nemo me impune lacesset,

[linked image]"The chief aim of all government is to preserve the freedom of the citizen. His control over his person, his property, his movements, his business, his desires should be restrained only so far as the public welfare imperatively demands. The world is in more danger of being governed too much than too little.

It is the teaching of all history that liberty can only be preserved in small areas. Local self-government is, therefore, indispensable to liberty. A centralized and distant bureaucracy is the worst of all tyranny.

Taxation can justly be levied for no purpose other than to provide revenue for the support of the government. To tax one person, class or section to provide revenue for the benefit of another is none the less robbery because done under the form of law and called taxation."

John W. Davis, Democratic Presidential Candidate, 1924. Davis was one of the greatest trial and appellate lawyers in US history. He also served as the US Ambassador to the UK.
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