US court weighs rights of detainees in Afghanistan

WASHINGTON // The US Court of Appeals for the DC Circuit in the American capital will hear oral arguments today in the case of three men seeking to challenge their detention at the US-run prison at Bagram Air Base in Afghanistan, proceedings that could have far-reaching implications for the detention policies of the Obama administration.

A three-judge panel will ultimately decide whether the detainees, two Yemenis and a Tunisian who have been in custody for more than six years without trial, can pursue their cases in US civilian courts. The Obama administration, like the Bush administration, has argued that US courts have no jurisdiction over non-US citizens being held in a foreign war zone. The International Justice Network, a human rights organisation in New York that represents the three detainees, contends that the men should be afforded the same right to trial that the US Supreme Court granted to detainees being held at Guantanamo Bay, Cuba, in 2008. In that landmark case, Boumediene v Bush, the justices narrowly ruled that detainees at the prison in Cuba have the right to challenge their detention under the legal doctrine known as "habeas corpus", which is afforded to all US citizens by the US Constitution.

"The Supreme Court has already told us that the executive must not be allowed to turn the constitution on and off at will," said Hope Metcalf, a lawyer for the IJN who has worked on the case of the three Bagram detainees. "This case addresses whether or not the Obama administration can continue Bush-era policies of detaining people indefinitely and incommunicado," she added. The Obama administration has won praise from human rights and civil liberties groups for its efforts to close the controversial facility at Guantanamo Bay and shut down secret prisons operated by the Central Intelligence Agency. But those same groups have criticised the White House for continuing a policy of holding detainees without trial at Bagram, where about 600 detainees are reported to be housed, including an estimated 30 detainees who were taken there from outside Afghanistan.

Of the three detainees seeking access to US courts, one man, Redha al Najar, said he was arrested in Pakistan in 2002. Another detainee, Amin al Bakri, said he was captured in Thailand the same year. The third, Fadi al Maqaleh, said he was picked up along the Afghan border in 2003 but did not specify a location. Last year, a federal district judge in Washington decided in favour of the three detainees, ruling that they had the same rights to trial as Guantanamo detainees. The judge stayed his ruling so government lawyers could appeal.

The justice department contends that detainees in Afghanistan are in a "fundamentally different" situation than those in Cuba, according to a brief filed by Elena Kagan, the US solicitor general. Among the differences, the government argues, is that Guantanamo Bay is under the "complete jurisdiction and control" of the United States while the Bagram facility is on sovereign Afghan territory. The government also points out that Bagram prison, in contrast to the one at Guantanamo Bay, is "in an active theatre of war".

"Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan," the brief states. As it defends its policies, the White House also has touted new procedures, implemented in September, that afford Bagram detainees more rights than they had under George W Bush, Barack Obama's predecessor. Detainees now can challenge their detention before a panel of military officers and they are appointed a "personal representative" - though not a lawyer - who "shall act in the best interest of a detainee", according to the defence department. Detainees also can call witnesses to testify on their behalf.

The defence department recently transferred all Bagram detainees to a new US$60 million (Dh220m) facility, also situated on the sprawling military base about 70km north of Kabul. The Pentagon has said it plans to demolish the old prison, which, in the early years of the US war in Afghanistan, was known for its poor conditions and was tainted by allegations of torture. More than two dozen US soldiers were implicated in the deaths of two detainees in 2002, though the worst punishment meted out was five months in a military prison.

Like the facility at Guantanamo Bay, the Bagram prison has become a toxic symbol to many Afghans. In July, as part of a prison-wide protest, detainees refused visits from the International Committee of the Red Cross. Human rights groups say the administration's policy changes are a good start but that much more must be done to bring the facility in accordance with international law. "They've taken some worthwhile and necessary steps," said Gabor Rona, the international legal director at the New York-based Human Rights First, who said that detainees should be granted the right to counsel and access to courts. "Any other answer simply means that the government could continue to kidnap people from anywhere in the world and instead of bringing them to Guantanamo where they have the right of habeas corpus, they would bring them to Bagram or some other war zone where they don't."


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Our legal consultant

Name: Hassan Mohsen Elhais

Position: legal consultant with Al Rowaad Advocates and Legal Consultants.

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