Detainees held by US in Afghanistan can't contest custody, court finds

Enemy combatants being held in US custody at the Bagram Air Base in Afghanistan have no constitutional right to challenge the legality of their open-ended military detention, a federal appeals court panel in Washington announced on Friday.

In ruling for the US government, the unanimous three-judge panel said habeas corpus petitions filed on behalf of the men must be dismissed because federal judges in the US lack jurisdiction to hear their cases.

The court said that because the detention camp at Bagram is located in an active theater of war overseas it would be impractical to allow detainees to file such legal challenges.

The ruling is vindication for a policy first enacted by the Bush administration and later embraced by the Obama administration. The policy seeks to hold suspected enemy combatants in overseas detention camps where they can be held in indefinite detention without charge and subjected to interrogations free from any burdens of judicial oversight.

Can't do it at Guantánamo

Lawyers working on behalf of detainees at Guantánamo Bay, Cuba, successfully attacked that policy. The US Supreme Court ruled in 2008 that enemy combatants at Guantánamo possess the constitutional right to challenge the legality of their detentions in federal courts despite efforts by the Bush administration and Congress to strip the courts of jurisdiction.

Citing that decision, US District Judge John Bates ruled in April 2009 that the three Bagram detainees who brought the current suit must also be afforded the same legal protections. Unlike most of the estimated 600 detainees at Bagram, these three were allegedly captured in third countries (outside the Afghan war zone) and transported to Afghanistan for detention and interrogation, the judge said.

Lawyers for the detainees had argued that without judicial oversight at Bagram, the executive branch would be able to switch the Constitution on and off at will depending on where it decided to place captured enemy combatants.

The appeals court rejected that argument as mere speculation. “That is not what happened here,” Judge David Sentelle wrote.

But the judge suggested that a case raising the issue more directly might alter the legal analysis. “Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present,” he said.

Detained at least seven years

All three detainees have been held at Bagram for at least seven years. Fadi al-Maqaleh is a Yemeni who says he was captured somewhere beyond Afghan borders. The US disputes this, saying that he was captured in Zabul, Afghanistan.

Redha al-Najar is a citizen of Tunisia who says he was seized in Pakistan in 2002 and transported to Afghanistan.

Amin al-Bakri is a Yemeni who says he was seized by US officials in Thailand in 2002 and transported to Afghanistan.

In addition to Judge Sentelle, the appeals court panel included Judges David Tatel and Harry Edwards.

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