Bagram Ruling Portends More Challenges to Obama Detention Policy in Afghanistan

Today’s ruling by a federal district court judge that some prisoners who’ve been detained in Afghanistan for years without charge or trial have the right to challenge their detention in U.S. courts is only the beginning when it comes to the Bagram detention facility. That’s because U.S. District Court Judge John Bates ruled only on the situations of the four men in the habeas corpus petitions before him, and each of those men was abducted outside of Afghanistan and brought to the Bagram prison by U.S. authorities.

The government contends, however — though it’s refused to provide information supporting this contention publicly — that most of the 600 or more prisoners held at Bagram were arrested “on the battlefield” within Afghanistan, where the United States remains engaged in a war.

The cases of those detainees — many of whom were taken by U.S. soldiers from their homes, schools and other locations that aren’t normally considered a “battlefield” — will pose the next legal challenges to the Obama administration’s policy of indefinite detention at Bagram without charge or trial, say lawyers following these cases.

“One question will be whether people are still being brought to Bagram from elsewhere as a way to avoid review, and how the U.S. is treating prisoners at Bagram,” said Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project who has not participated in these cases, but is watching them closely. Hafetz said he expects to see more challenges to the Obama administration’s Bagram policy soon. “Right now, they’re not being given a fair process and they’re being held with less process than prisoners got at Guantanamo.”

In fact, in his order, Bates went out of his way to say that the process that Bagram prisoners are afforded to challenge their detention “falls well short of what the Supreme Court found inadequate at Guantanamo.”

Specifically, the judge found that the “process is plainly less sophisticated and more error-prone.” For example, unlike prisoners at the U.S. detention facility at Guantanamo Bay, where prisoners could have some representation, Bagram detainees must represent themselves.

“Obvious obstacles, including language and cultural differences, obstruct effective self-representation by petitioners such as these,” Bates wrote. “Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an “enemy combatant” designation — so they lack a meaningful opportunity to rebut that evidence.”

Although Bates’ ruling was limited to the detainees in the case before him, it opens the door to lawsuits from hundreds more prisoners at Bagram who are awaiting the opportunity to challenge their indefinite detention.

“It shows that the courts are not going to take cosmetic rhetoric as a substitute for a legal basis for detention,” said Tina Foster, executive director of the International Justice Network, which has been representing all of the Bagram detainees in federal court. “The rhetoric that we’re in a war on terror and that Afghanistan is in the middle of a war zone doesn’t change the fact that the U.S. government brought people who had nothing to do with the conflict in Afghanistan or the war on terror to be held in its custody in the middle of Afghanistan.”

Whether prisoners taken from their homes or elsewhere in Afghanistan and imprisoned at Bagram are also entitled to habeas corpus rights is likely to be decided in a future case — unless the Obama administration decides to change its position.

For now, the big question for Foster and her colleagues who’ve been pressing these cases for years is whether the Obama administration will appeal — and further stall the prisoners’ hearings.

“The last administration just fought on everything,” says Foster. “I don’t know what the Obama administration is going to do with this ruling. Will they dig in their heels? It will be a very good indication of things to come, whether they are willing to expend the resources to argue that the president ought to have a right to take these prisoners — who have been denied their rights for more than six years — and lock them up forever.”