W's Influence Continues...

By William Fisher

While the unsuccessful attempt to bring down a Detroit-bound airliner on Christmas day captured the headlines and put major political roadblocks in the path of prisoner release from Guantanamo Bay, the courts – far more quietly -- continued to play a major role in influencing the detention issue.

That influence was demonstrated by two cases this week.

In Washington, D.C., a three-judge panel of the U.S. Court of Appeals minced its way toward fashioning new rules to govern habeas corpus decisions brought by three prisoners at the Bagram airbase in Afghanistan.

And a decision by three different judges of the same court affirmed the government's authority to hold people taken prisoner in the fight against al-Qaida and the Taliban – thus making it more difficult for detainees to challenge the basis of their detention.

On Thursday, the DC Circuit court heard oral arguments in a case known as Maqaleh v. Gates -- the first legal challenge in U.S. courts on behalf of prisoners detained at Bagram Airbase in Afghanistan. The case was brought by the International Justice Network (IJNetwork) on behalf of two Yemenis and one Tunisian citizen, each seized outside of Afghanistan from third countries and held without charge or trial in U.S. custody for more than six years.

Evidence suggests that each man was shuttled through U.S.-run secret prisons (“black sites”) for torture and interrogation, prior to ultimately being transferred to Bagram—itself the site of well-documented human rights violations—where they continue to be subjected to indefinite detention under sole U.S. military custody.

During the entire six-year period while he has been in U.S. custody, Maqaleh has not been permitted to see his family, and has been denied any access to lawyers or a court of law. Because he is being held virtually incommunicado, his father authorized IJNetwork to file a petition for a writ of habeas corpus in U.S. court seeking his release. Though his case has now been pending for over three years, the government continues to refuse to allow Maqaleh to communicate with his attorneys.

In April 2009, Judge John D. Bates ruled that Maqaleh, and two other petitioners in the case, Amin al Bakri and Redha al Najar, have a Constitutional right to petition U.S. courts for a writ of habeas corpus.

Judge Bates’s decision was based on the Supreme Court’s decision in Boumediene v. Bush, which established that detainees held in U.S. custody at Guantanamo had a Constitutional right to file habeas corpus petitions in U.S. courts. But before any of the Bagram detainees could have his day in court, the Obama Administration appealed Judge Bates’ decision—arguing that none of the 600 detainees at Bagram have any rights under U.S. law.

As the organization representing the Bagram detainees, the IJNetwork, has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody — including Bagram.

Though President Obama has vowed to close Guantanamo, the Department of Justice continues to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights. As the organization representing the Bagram detainees, IJNetwork has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody— including Bagram.

Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.

But Tina Foster, executive director of the International Justice Network (IJN), who argued for the Bagram detainees, told IPS, “Our clients are three innocent men who have been imprisoned without charge for seven years and haven't even been told why. The fundamental question at issue in these cases is whether the United States government can seize individuals from peaceful countries anywhere in the world and imprison them without charge indefinitely, based solely on the location of the prison facility where the government decides to detain them.”

She added, “The position of the Obama administration is that it can do so, as long as it uses Bagram, instead of Guantanamo, as its legal black hole. This is an extreme position -- and one that allows the President to do exactly what the Supreme Court said was unconstitutional in the Guantanamo cases. We are very disappointed that this administration has failed to live up to its promise of living up to this country's great legal tradition and fidelity to the rule of law, but we are hopeful that the Court of Appeals will remedy this injustice.”

She said the Justice Department’s position is one where “Bumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.

In the second case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court's decision in 2008 affirming the continued detention of a former cook for Taliban forces. He is Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan. Held at the U.S. naval base in Cuba since 2002, al Bihani carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan, but claims he never fired a shot in battle.

The court unanimously rejected Al Bihani's appeal. But two judges appointed by President George W. Bush went even further. Bush appointees Janice Rogers Brown and Brett Kavanaugh said detainees are not entitled to the same rights given criminal defendants who challenge their convictions.

In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.

As a result, federal judges have reached often contradictory conclusions about the detainees' legal rights and whether the government has the power to continue holding them.

This decision can be appealed either to the full appeals court or to the
Supreme Court. If it is not challenged successfully, it could apply to every other detainee case filed in Washington and provide the government with a compelling basis to challenge any court order to release a detainee.

Legal authorities said the decision will make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so robustly supports the government's authority, legal experts said.

The two Bush appointees rejected attempts by human rights groups and detainees' lawyers to have the courts apply principles from "the laws of war" to detention decisions.

This group of international laws, treaties and long-standing legal practices would probably curtail the government’s ability to detain people such as Bihani indefinitely, his defenders believe.

A large majority of the prisoners still held at Guantanamo Bay is from Yemen. In the aftermath of the political backlash triggered by the disclosure that the would-be bomber of the Detroit-bound airliner was given his explosive device by Al Qaeda in Yemen, the Obama administration decided to suspend release of any Yemeni detainees, many of whom have been cleared for release.