In a two-sentence court filing, department lawyers said the Obama administration agreed that detainees at Bagram Air Base cannot use U.S. courts to challenge their detentions. The filing shocked human rights attorneys.
"The hope we all had in President Obama to lead us on a different path has not turned out as we'd hoped," said Tina Monshipour Foster, a human rights attorney representing a detainee at the Bagram Air Base. "We all expected better."
In midyear last year, the Supreme Court gave al-Qaida and Taliban suspects held at the U.S. Naval Base at Guantanamo Bay, Cuba, the right to challenge their detention. With about 600 detainees at Bagram Air Base in Afghanistan and thousands more held in Iraq, courts are grappling with whether they, too, can sue to be released.
Three months after the Supreme Court's ruling on Guantanamo Bay, four Afghan citizens being detained at Bagram tried to challenge their detentions in U.S. District Court in Washington. Court filings alleged that the U.S. military had held them without charges, repeatedly interrogating them without any means to contact an attorney. Their petition was filed for them by relatives since they had no way of getting access to the legal system.
The military has determined that all the detainees at Bagram are "enemy combatants." The Bush administration said in a response to the petition last year that the enemy combatant status of the Bagram detainees is reviewed every six months, taking into consideration classified intelligence and testimony from those involved in their capture and interrogation.
After Obama took office, a federal judge in Washington gave the new administration a month to decide whether it wanted to stand by Bush's legal argument. Justice Department spokesman Dean Boyd says the filing speaks for itself.
"They've now embraced the Bush policy that you can create prisons outside the law," said Jonathan Hafetz, an attorney with the American Civil Liberties Union who has represented several detainees.
The Justice Department argues that Bagram is different from Guantanamo Bay because it is in an overseas war zone and the prisoners there are being held as part of a continuing military action. The government argues that releasing enemy combatants into the Afghan war zone, or even diverting U.S. personnel there to consider their legal cases, could threaten security.
The government also said that if the Bagram detainees had access to the courts, it would allow all foreigners captured by the United States in conflicts worldwide to do the same.
It Is not the first time that the Obama administration has used a Bush administration legal argument after promising to review it. Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the state secrets privilege, a separate legal tool it used to have lawsuits thrown out rather than reveal secrets.
The same day, however, civil division attorney Douglas Letter cited that privilege in asking an appeals court to uphold dismissal of a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations that tortured them.
Letter said that Obama officials approved his argument.