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The Obama administration is asking judges not to give detainees at Bagram prison in Afghanistan the right to challenge their detention. The administration made that argument in court briefs filed last night. If this sounds familiar, human rights groups say the Bush administration made the same argument about Guantanamo Bay detainees years ago.
NPR's Ari Shapiro explains.
ARI SHAPIRO: The population at Guantanamo has been shrinking ever since 2006. At Bagram, the detainee population is growing. There are roughly 600 men there now. Some were picked up on the battlefield in Afghanistan; others have been transferred to Bagram from as far away as Thailand.
Three of the detainees who were transferred to Bagram are represented by Tina Foster of the International Justice Network.
Ms. TINA FOSTER (Executive Director, International Justice Network): The Obama administration is arguing that because our clients are being held at Bagram instead of Guantanamo, that they shouldn't be entitled to any rights. But the only reason that our clients are being held at Bagram instead of Guantanamo, that they shouldn't be entitled to any rights. But the only reason that our clients are being held at Bagram is because the United States government brought them against their will to Afghanistan and brought them to Bagram.
SHAPIRO: A lower court judge gave Foster's clients access to American courts, and now, the Obama administration wants an appeals court to overturn that ruling.
Mr. JEH JOHNSON (General Counsel, Pentagon): I regard Afghanistan as a fundamentally different place.
SHAPIRO: At an American Bar Association breakfast last week, Pentagon lawyer Jeh Johnson said the comparison to Guantanamo is not fair.
Mr. JOHNSON: The Bagram population is a much more in-and-out population. There's more turnover in that population. Many of them are transferred to the government of Afghanistan, and so the nature of the population is different.
SHAPIRO: Still, some prisoners at Bagram have been there six years.
Just before submitting this brief, the Obama administration said it would create a system of review to see who should be released from Bagram. Detainees will get a personal representative from the government but not a lawyer. The detainees can call witnesses and see some evidence against them. This is more access than the detainees at Bagram had before, but Foster of the International Justice Network says it's not very different from the access the Bush administration granted to Guantanamo detainees.
Ms. FOSTER: It looks exactly the same as what's already been done and what's already failed and what had led President Bush to be embroiled in his entire second term over the legitimacy of the procedures that were being used at Guantanamo.
SHAPIRO: Some on the other side of the political spectrum are relieved to see the Obama administration adopt this position.
Mr. KEN WAINSTEIN (Former Assistant Attorney General, Justice Department): I think we're seeing continuity in the national security area, which frankly is exactly what we should see between administrations.
SHAPIRO: Ken Wainstein ran the Justice Department's National Security Division under President Bush.
Mr. WAINSTEIN: We shouldn't have discontinuity every time a new administration comes in. So we're seeing that continuity, and I think that's good for our counterterrorism efforts and it's good for the country.
SHAPIRO: One man who famously fought the Bush administration's rules at Guantanamo is on the other side of this argument. Neal Katyal became a legal superstar when he successfully argued the case of detainee Salim Hamdan before the Supreme Court. That ruling gave Guantanamo detainees greater court access than the Bush administration had wanted. Now, Katyal works for the Obama Justice Department.
Several human rights lawyers said they are baffled to see his name on this brief arguing against the same court access for Bagram detainees. But some who know Neal Katyal well say he has always argued Bagram is different from Guantanamo.
Charles Swift was on Salim Hamdan's legal team with Katyal, and we reached Swift on his cell phone.
Mr. CHARLES SWIFT (Attorney): Neal believed very much in presidential powers and expanded ones. He just believed that President Bush had gone beyond the boundaries of presidential powers and had to be pulled back.
SHAPIRO: Now the question is whether President Obama has reached beyond those boundaries as well.
Ari Shapiro, NPR News, Washington.