The United States is holding the detainees at the military prison on Afghan territory through a cooperative arrangement with Afghanistan, three appeals court judges said in a unanimous decision turning aside the request of a Tunisian and two Yemeni prisoners.
The jurisdiction of the U.S. courts does not extend to foreigners held at Bagram in the Afghan theater of war, added the judges, who said a U.S. district judge should have thrown out the detainees' petitions.
"While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that relationship" with the Afghan government, "neither can we say with certainty what the reaction of the Afghan government would be," said the opinion written by Judge David Sentelle.
During appeals court arguments in January, the other two appeals judges in the case, Harry Edwards and David Tatel, seemed to struggle with the problem of whether they could craft a narrowly constructed opinion that would affect only the three men and not lay the groundwork for opening up the judicial branch of government to many other detainee cases now and in the future.
In Friday's decision, Sentelle wrote that the three detainees "seem to be arguing that the fact of United States control of Bagram under the lease of the military base is sufficient. ... We reject this extreme understanding."