Bagram: Is it Obama’s new Guantanamo?

Tom Curry National affairs writer • Profile • E-mail

Should detainees the United States has shipped to the Bagram air base in Afghanistan have the same constitutional right to challenge their detention in court that prisoners at the Guantanamo prison in Cuba have been given?

President Barack Obama didn't answer that question in a May 21 speech outlining his policy for dealing with alleged terrorists. In fact, Obama didn't mention Bagram at all.

Yet human rights lawyers say Bagram will play a critical role in shaping the Obama administration’s detainee policy.

Obama has promised to close the Guantanamo prison by Jan. 22 of next year, but the Bagram prison continues to house alleged terrorists captured by the United States in Pakistan and other nations.

As a candidate for president, Obama praised a Supreme Court ruling last June that granted prisoners at Guantanamo habeas corpus rights to challenge their detention. He applauded Justice Anthony Kennedy’s decision in Boumediene v. Bush as “a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo.”

Do Guantanamo rules reach to Bagram?
But an April 2 decision by U.S. District Judge John Bates that applied the Boumediene ruling to some Bagram prisoners is forcing Obama to confront the question of whether he’s presiding over his own “legal black hole” at the prison in Afghanistan.

Video   Obama team appeals on Bagram April 13: The Obama administration said it would appeal a federal judge's ruling that allows some prisoners at the Bagram base in Afghanistan to challenge their imprisonment in court. Why is this a big deal? Rachel Maddow is joined by Newsweek’s Michael Isikoff. The Rachel Maddow Show

The Obama administration is challenging this ruling in the federal appeals court in Washington, D.C., arguing that Bates’ ruling would for the first time in American history extend habeas corpus rights to non-Americans in a theater of war in a foreign territory.

The Bagram site, they contend, is not like Guantanamo because the United States has become de facto ruler of the Cuban base after maintaining control of it since 1903.

But Bates ruled that some of those held at Bagram who were captured outside Afghanistan “are virtually identical to the detainees in Boumediene,” describing them as “non-citizens who were... apprehended in foreign lands far from the United States and brought to yet another country for detention.”

“The constitutional issues presented are consequential and fundamental: at stake are separation of powers considerations, the president's authority to wage war abroad free from judicial scrutiny, and the constitutional rights of certain aliens detained abroad indefinitely by the United States,” Bates wrote in a separate ruling this week that cleared the way for the appeal.

His original ruling — which is on hold pending the appeal — gave habeas rights to three men at Bagram, all of whom are being held as “illegal enemy combatants”:

• Fadi al Maqaleh, a Yemeni who was taken into U.S. custody in 2003 (Obama administration lawyers say he was captured in Afghanistan; al Maqaleh says his capture occurred outside Afghanistan).
• Amin al Bakri, a Yemeni, captured by U.S. forces in Thailand in 2002.
• Redha al-Najar, a Tunisian who was captured in Pakistan in 2002.

If upheld by the appeals court and Supreme Court, the Bates ruling would open the way to appeals by others at Bagram, though it is not clear how many detainees were moved to the prison after being apprehended outside the country.

Criticism of Obama from abroad
Bates’ ruling has fueled criticism of the Obama administration, in the United States and abroad.

The Times of London said in a May 27 signed editorial that Bagram is “the grossly underreported story” of “a U.S.-run jail that Mr. Obama does not want the world to focus on. … It is Bagram, not Guantanamo, that should trouble the world's conscience.”

Times writer Tim Reid said that at Bagram “more than 600 prisoners, many held for years, and all without charges and indefinitely are packed into conditions far worse than Guantanamo.”

Tina Foster, executive director of the International Justice Network, a legal advocacy group which is representing al Maqaleh and al Bakri, agreed that Obama is aiming to deflect attention from the Afghan prison.

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