Next flash point over terror detainees: Bagram prison

With Guantánamo set to close, more attention is falling on the US military facility in Afghanistan and those in custody there.

At the height of its operation, the terror detention camp at Guantánamo was viewed as a legal black hole, a place where Al Qaeda suspects could be held and questioned beyond the glare of judicial scrutiny.

President Obama has made the closing of the detention facility a priority. But as Guantánamo is being drawn down, large-scale construction is under way at a US military prison in Bagram, Afghanistan.

Some critics are already calling it "Obama's Guantánamo." And it looks to become the next big flash point in a long legal tug of war over the direction of America's antiterror policies.

An estimated 242 prisoners remain at Guantánamo. In contrast, more than 600 are held at Bagram, and efforts are under way to expand facilities to potentially hold as many as 1,100 terror suspects.

With the US about to escalate the war in Afghanistan, the Bagram prison is likely to play a more visible and important role in that conflict.

In the meantime, US-based lawyers are mobilizing. Some of the same lawyers and human rights activists who fought successfully to bring judicial oversight to Guantánamo are now pushing for similar oversight at Bagram.

It's a development accurately predicted by some US Supreme Court justices. They made the predictions in a string of high court decisions since 2004 establishing for the first time that Guantánamo detainees are entitled to challenge the legality of their military detention.

"From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing courts to oversee one aspect of the executive's conduct of a foreign war," Justice Antonin Scalia wrote in his June 2004 dissent in a case called Rasul v. Bush.

At the heart of a looming legal showdown at Bagram is the same fundamental question asked in the Guantánamo litigation: Are detainees in a US military prison overseas entitled to any legal rights?

But there is an additional twist. After the Supreme Court's 2004 decision, the Bush administration stopped sending detainees to Guantánamo and instead routed them to Bagram, where they were held and interrogated without judicial scrutiny. Until now.

Justice Department lawyers staked out the same position they took while trying to defend the Guantánamo operation at the Supreme Court. They argued that federal judges in Washington have no jurisdiction to examine the detention and treatment of terrorism suspects in Afghanistan.

Last month, US District Judge John Bates asked the Obama administration if it wished to "refine" that position. He gave the new administration until Feb. 20 to announce any changes in legal arguments developed by the Bush administration.

The pending case involves four longtime detainees being held without charge at Bagram who are challenging the legality of their open-ended detention. All four are said to have been captured outside Afghanistan and were brought to Bagram for detention and interrogation.

Citing the Rasul case and other decisions establishing due-process rights at Guantánamo, a group of lawyers filed a lawsuit in Washington seeking to extend those same rights to detainees in Bagram.

"Some of our clients have been in custody just as long or longer as those in Guantánamo," says Tina Foster, an attorney with the International Justice Network.

Unlike the Guantánamo detainee cases, lawyers in the Bagram case have never been permitted to meet or communicate with their clients. Bagram detainees are not entitled to the combat status review tribunals and other safeguards set up at Guantánamo.

"We can't keep people without due process," says Barbara Olshansky, a key player in the Rasul case who is now helping to litigate the Bagram case. "This case is important because it goes to the issue of does the writ [of habeas corpus] extend to where the US military is completely entrenched and controlling detention."

Ultimately the question may come down to whether the situation at Bagram is similar enough to operations and circumstances at Guantánamo to warrant US judicial oversight.

"What we are really asking Judge Bates to do is define where the writ ends," says Ms. Olshansky, who is also a professor and director of the International Human Rights Clinic at Stanford Law School.

Government lawyers have been trying to prevent Judge Bates from even considering that issue. They say fighting a war is a matter for the political branches and the military, not civilian judges.

"To stretch [US constitutional protections] to Bagram under these circumstances would lead to the anomalous result that any alien enemy engaged in warfare abroad and detained by the United States anywhere in the world can petition US civilian courts for review of the military's decision to detain them," says the government's brief filed in September.

The US military presence at Bagram is a transient wartime necessity, government lawyers say, and the prison itself is in an active war zone.

Legal analysts say Bates may seek to limit his ruling by applying it only to Bagram detainees captured outside Afghanistan.

The judge asked the government to disclose the number of such detainees. The government response is classified. Olshansky, Ms. Foster, and the other lawyers in the case have not been permitted to see it.

The Bagram case is a potential blockbuster, legal analysts say. "Once you extend habeas protection by judicial decree to a detention center besides Guantánamo Bay, you theoretically open a door that would extend to any detention center by the United States anywhere else in the world," says Scott Silliman, executive director of Duke Law School's Center on Law, Ethics, and National Security.

But new policies and practices enacted by the Obama administration could head off such a ruling, adds Professor Silliman. Recent Obama executive orders, he says, suggest the new administration may soon increase visitation rights of the International Committee of the Red Cross and offer additional safeguards for humane treatment and legal protections at Bagram.

Should such changes take place, Silliman says, "there may not be any need to consider extending habeas to [Bagram]."