A federal appeals court has found that detainees being held at the U.S. military's Bagram Air Base in Afghanistan do not have the right to challenge their detention in federal court. The ruling, a victory for the Obama administration, reverses a lower court decision.
Lawyers for Yemenis Fadi A-Maqaleh, Amin Al-Bakri and Tunisan Redha Al-Najar had argued that under Boumediene v. Bush -- a landmark Supreme Court decision that gave detainees held at Guantanamo Bay, Cuba, the right to challenge their detention -- they too could argue their case in U.S. court.
But today, a unanimous three-judge panel for the United States Court of Appeals for the D.C. circuit Court found that Bagram is a different case from Guantanamo. "The United States has maintained its total control of Guantanamo Bay for over a century…In Bagram, while the United States has options as to duration of the lease agreement, there is no indication of any intent to occupy the base with permanence."
The court said that Bagram is "an active theater of war" and rejected the detainees' argument that the U.S. Constitution should apply.
"We reject this extreme understanding. Such an interpretation would seem to create the potential for the extraterritorial extension of the Suspension Clause to noncitizens held in any United States military facility in the world," the court said.
Stephen I. Vladeck, a professor at American University's Washington College of Law, said, "What this decision means is that the government can pick up any non-citizen anywhere in the world, except here, and hold them beyond the process of our court.
"The decision creates a clear but perverse incentive for the government to hold future detainees anywhere but here," he said.
Lawyers for the three men being held at Bagram had argued that that the U.S. could choose to send detainees to Bagram to evade judicial review. Today the court said, "the notion that the United States deliberately confined the detainees in the theater of war, rather than at, for example, Guantanamo, is not only unsupported by the evidence, it is not supported by reason."
The Obama administration's position in this case, which mirrored the position taken by the Bush administration, had troubled some supporters who hoped that the new administration would concede that there are no places in the world where the government could hold individuals beyond the supervision of a U.S. court.
The case was argued before the court by Neal K. Katyal, who is representing the administration while Solicitor General Elena Kagan's nomination to the Supreme Court is under consideration.