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Afghanistan 'enemy combatants' can make their case in U.S. court, judge says

A U.S. District Court judge rules that foreign detainees at Bagram Air Base have the right to challenge their detention in American courts.

April 03, 2009|David G. Savage

WASHINGTON — The Obama administration's plan to close the prison at Guantanamo Bay grew more complicated Thursday after a federal judge ruled that at least some of the long-term prisoners at Bagram air base in Afghanistan were entitled to the same legal rights as Guantanamo detainees.

U.S. District Judge John Bates, an appointee of President George W. Bush, said the prisoners who were shipped to Bagram from outside Afghanistan were "virtually identical" in legal terms to those who were sent to Guantanamo.

The prisoners, therefore, have the right to challenge their detentions before a judge, Bates said.

He cited the Supreme Court's decision last year holding that the right to habeas corpus extended to Guantanamo prisoners and concluded there was no reason not to extend the same status to those held at the military prison in Afghanistan.

Lawyers for the Bush and Obama administrations argued that Afghanistan was different because it was in a "theater of war." Traditionally, the right to habeas corpus, or legal redress, does not apply on the battlefield or in combat areas.

But Bates said many of the prisoners at Bagram were not fighters captured in Afghanistan but were shipped there from other countries.

Thursday's decision -- if it stands -- could mean that hundreds more prisoners could seek hearings in court to challenge the government's basis for holding them.

About 240 prisoners remained at Guantanamo Bay in Cuba when President Obama took office. More than 600 are being held at Bagram, and some experts predict that number will rise if fighting escalates in Afghanistan.

Lawyers for Human Rights Watch in New York downplayed the ruling, saying it would have no effect on the large number of prisoners who are Afghan nationals.

In his first days in office, Obama said he would close the Guantanamo prison within a year. His lawyers also said they would no longer call the detainees "enemy combatants." However, the new administration has not spelled out what it will do with the foreign prisoners and how it will deal with newly captured suspected terrorists.

The prison at the Afghan base was being expanded during the last year of the Bush administration, leading some to predict that the Pentagon would resolve its Guantanamo problem by sending more inmates to Bagram. A new 40-acre prison is scheduled to open in September.

Justice Department and Pentagon officials had little to say about the ruling. Spokesmen said the administration was taking 180 days to decide on its prison policy.

The government could appeal Bates' ruling to the U.S. Court of Appeals in Washington, and past decisions indicate it would stand a good chance of winning. The court's judges sided regularly with the Bush administration and rejected claims of legal rights for foreign prisoners in the war on terrorism.

The Supreme Court has been closely split. Last year, a 5-4 majority ruled the Constitution gave Guantanamo prisoners a right to go before a judge, but the opinion did not set a clear rule.

The justices said the Guantanamo prison was thousands of miles from a battlefield and on land controlled by U.S. officials. It is not clear the five-member majority would view Bagram in the same way.

At a hearing of the Senate Armed Services Committee on Wednesday, Defense Department officials said they were not sure what to do with fighters captured in Afghanistan.

Army Gen. David H. Petraeus said some foreign fighters could not be sent back to their homes because of human rights abuses in those countries.

Others are too dangerous to release. Michele A. Flournoy, an undersecretary of Defense, said the Obama administration was reviewing the situation at Bagram.

"With the planned closure of Guantanamo Bay, I think the administration is in the process of figuring out exactly what do we need to do with those who are too dangerous" to release, Flournoy said.

Bates did not say all Bagram prisoners had legal rights. His opinion referred to three prisoners who had been sent there and held for more than six years.

He also did not say any of the men were entitled to go free. Rather, they would have the right to assert their innocence in court.

The government would be required to show evidence that the detained men had engaged in hostile action against the U.S. or had given "substantial support" to terrorists.

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david.savage@latimes.com

Julian Barnes and Josh Meyer in the Washington bureau contributed to this report.

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