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Judge Holds Bagram Detainee Cases Pending Appeal

WASHINGTON -- A federal judge on Monday put a hold on his groundbreaking order allowing detainees at a U.S. air base in Afghanistan access to U.S. courts until an appeals court can rule on the case involving prisoners held in an active war zone.

The Obama administration, in arguments similar to those made by the Bush White House, had challenged a ruling by U.S. District Judge John Bates two months ago that some foreign detainees at Bagram Airfield could use civilian courts in the United States to challenge their detention.

It was the first time a judge had extended rights given to terrorism suspects held at Guantanamo Bay, Cuba, to detainees held elsewhere in the world. The order drew an immediate rebuke from congressional Republicans who said Bates was endangering national security and should not be involved in battlefield decisions.

Bates, a U.S. Army veteran and former career Justice Department official appointed to the bench by President George W. Bush, said in his opinion Monday that he believes his decision was correct. But he agreed to a government request to delay his order long enough for the Obama administration to appeal.

Judges don't usually allow appeal of such orders until after the case is concluded. "But these are extraordinary cases of significant national and international interest," Bates wrote.

"Reasonable courts could differ as to how certain factors should be interpreted and what weight each factor is due," Bates continued. "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' initial ruling came April 2 in the case of four prisoners who have been held at Bagram for six years or more. He said three of the prisoners who were non-Afghans captured outside the country should have access to the courts to prevent the United States from being able to "move detainees physically beyond the reach of the Constitution and detain them indefinitely."

The detainees were identified as Fadi al Maqaleh and Amin al Bakri of Yemen and Redha al-Najar of Tunisia.

Bates had reserved judgment on the fourth detainee, Haji Wazir, because he is an Afghan citizen and releasing him could create "practical obstacles in the form of friction with the host country."

He ordered Wazir and the government to file memos addressing those issues.

Bates also suggested that access to U.S. courts may not be available to Bagram detainees who were captured in Afghanistan.

The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay have the right to challenge their detention in court. But the government -- first the Bush administration then the Obama administration -- had argued that it did not apply to the detainees in Afghanistan because it is in an overseas war zone.

The government said 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 if the Bagram detainees got access to the courts, it would allow all foreigners captured by the United States in conflicts worldwide to do the same.

Bates said the Guantanamo and Bagram cases were essentially the same. He quoted the Supreme Court ruling repeatedly in his judgment and applied what he said was a test created by it to each detainee.

Justice Department spokesman Dean Boyd said they were pleased with the ruling allowing appeal.