The Supreme Court ruled in June that detainees at Guantanamo Bay, Cuba, had the constitutional right to challenge their detentions in U.S. courts. On Wednesday, a federal judge will begin exploring whether detainees at a military prison in Afghanistan have that same right.
The prison at the center of the case is Bagram Air Base, and the question is whether the Supreme Court ruling that gave Guantanamo prisoners habeas corpus rights extends to other terrorism suspects. Legal experts say the case's outcome will likely hinge on whether the judge sees Bagram as a prison like Guantanamo or as a battlefield detention facility in a war zone.
A Legal Netherworld
"Bagram is probably more like Guantanamo than Guantanamo was," says Barbara Oshansky, one of the defense attorneys in the case. She is representing four Bagram detainees who have been held for six years without charge and are challenging their detention there. "This is the last vestige, we hope, of a policy that tries to lock people away without charge or trial forever."
Justice Department officials declined to speak about the case, but they state in their legal brief that Bagram and Guantanamo couldn't be more different. Bagram is used in an ongoing military operation and, they say, this means there is no role for the U.S. courts there. They also argue that Bagram's detainees are warriors captured on the fields of battle.
That's true of most of the prisoners there now. But Tina Foster of the International Justice Network says her clients were picked up in third countries and then taken to Bagram. "The only reason that our clients are anywhere near Afghanistan is because the United States government brought them to Afghanistan and to Bagram against their will," Foster says.
There is so much focus on Bagram because ever since the Supreme Court gave Guantanamo detainees the right to challenge their detentions in Boumediene v. Bush, the favored place to send terrorism suspects has been Bagram. If the government loses the case, that legal netherworld could vanish.
Still, former Justice Department lawyer David Laufman says a close reading of last summer's Supreme Court ruling gives the government the advantage.
"The Supreme Court in Boumediene left the door open to agreeing with the position taken by the government in this case," Laufman says. That's because, he says, the Supreme Court is sensitive to the fact that if a detention facility is in a war zone, having to deal with prisoners filing writs of habeas could be impractical.
Dilemma For Obama
John Sifton is a lawyer who has been dealing with Afghanistan issues for nearly a decade, and he says President-elect Barack Obama's incoming administration can tinker at the edges of policy to avoid these kinds of legal problems.
"The issue going forward is avoiding these types of situations by adopting a more nuanced way of looking at the detainees it captures overseas," Sifton says. In his view, the Obama administration can distinguish itself by not treating all terrorism suspects — whether masterminds or hangers-on — the same way.
"Some might be Taliban fighters captured on the battlefield," he says. "Others might be persons of interest that might have intelligence that might be useful to the CIA or the military. But these are nuances that have been lacking over the last eight years, the sense that someone might be one kind of detainee and others might be another."
The dilemma for Obama is that Bagram could help him keep his promise to close Guantanamo. The Afghan detention facility provides a place to keep prisoners while the new administration tries to figure out what to do with detainees who are too dangerous to release. Right now, Bagram has about 700 prisoners. A new prison is under construction there. It will be able to hold about 1,000 more.