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Judge: Bagram Prisoners May Challenge Detention

A federal judge ruled Thursday that some foreign prisoners held at a U.S. air base in Afghanistan have the right to use U.S. courts to challenge their detention.

There are 600 prisoners at Bagram Airfield, and it is unknown how many prisoners the ruling will cover.

The case was brought on behalf of four detainees held at Bagram Airfield for more than six years: A Yemeni citizen captured in Thailand, a Yemeni who claims he was captured in Pakistan, a Tunisian captured in Pakistan and an Afghan captured in Dubai.

Federal Judge John Bates ruled Thursday that all except the Afghan have the right to challenge their detentions in the U.S. courts. It is unknown just how many other Bagram prisoners are in the same situation as these three. The Bush and Obama administrations have classified that information.

Ruling's Impact

Thursday's ruling, if upheld, would mean non-Afghan prisoners captured outside of Afghanistan would have the right to go to the U.S. courts to challenge their imprisonment.

University of Texas law professor Bobby Chesney, who specializes in national security law, says the ruling is enormously significant.

"It is terribly important," Chesney says. "It will extend some form of federal judicial oversight to a subset of the detainees in Afghanistan, those that are non-Afghans, who were captured outside of Afghanistan but who are, nonetheless, brought by the United States to be held in Afghanistan."

In his 53-page opinion, Bates, a Bush appointee, said there is no appreciable difference between the detainees in the case and the Guantanamo detainees whom the Supreme Court ruled last year have the right to challenge their detentions in court.

Like the Guantanamo detainees, he said, these prisoners have been held for more than six years. And like the Guantanamo detainees, they have had no meaningful way to challenge their detentions. In fact, Bates said, the Bagram prisoners have significantly less ability to challenge their designations as enemy combatants. They have no right to even testify in their own behalf.

Distinction Between Detainees

The judge rejected the arguments put forth by both the Bush and the Obama administrations that Bagram is so different legally and practically from Guantanamo that hearings would be disruptive. Bagram, he said, is for all practical purposes, the complete preserve of the U.S. government and is not subject to the law of any other country. While the judge acknowledged there are practical obstacles to holding hearings, he said those obstacles are not as great as the U.S. government claims. The hearings for Guantanamo detainees, for example, are being held in U.S. courtrooms via teleconference, a procedure the judge noted could be duplicated for these prisoners.

Bates, however, drew a careful distinction between Afghans seized in Afghanistan and detainees who are citizens of other countries. To allow hearings in U.S. courts for Afghans might impermissibly cause friction with the host country, said the judge, because once released, Afghan detainees would have to be turned over to Afghanistan.

But as to foreigners in general, said the judge, and at least foreigners captured outside Afghanistan, there is no constitutional rationale that justifies their detention for years, with virtually no right to challenge the basis for their imprisonment. It would be an anomaly, Bates said, to permit the executive to switch the Constitution on or off at will merely by deciding who will be held where.

There is no word yet on whether the Obama administration will appeal.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.