New detention filter at Bagram

09/17/09: SCOTUSblog has an analysis post by Lyle Dennison reviewing the new Bagram detention policy released by the Obama administration with comparisons to other detainee cases.

09/15/09: The Atlantic reports that in an appeals court ruling filed late Monday, Solicitor General Elena Kagan argues that long-term detainees held at Bagram, because of their status as legitimate enemy combatants, do not have the right to challenge their detention in federal court. The precedent set by Boumediene v. Bush, she argues, does not apply to the Bagram detainees because habeas rights do not apply to non U.S. citizens detained as enemy forces in a country where the U.S. was engaged in "active hostilities."

09/13/09: The Washington Post reports that hundreds of prisoners held by the U.S. military in Afghanistan will for the first time have the right to challenge their indefinite detention and call witnesses in their defense under a new review system being put in place this week. The new system will be applied to the more than 600 Afghans held at the Bagram military base, and will mark the first substantive change in the overseas detention policies that President Obama inherited from the Bush administration. Under the new rules, each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available." The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released. For those ordered held longer, the process will be repeated at six-month intervals.

07/16/09: The Washington Post reports that the prisoners at the largest US detention facility in Afghanistan have refused to leave their cells for at least the past two weeks to protest their indefinite imprisonment, according to lawyers and the families of detainees.

06/30/09: The BLT reports that Judge John Bates of the U.S. District Court for the District of Columbia found that Haji Wazir, an Afghan citizen, did not have access to American courts, because his release could cause undue tension with Afghanistan’s government.

06/25/09: The BBC reports that a number of former detainees, none of whom were charged with any offense or put on trial, have alleged they were beaten, deprived of sleep and threatened with dogs at the Bagram military base in Afghanistan.

06/23/09: Kal Raustiala, Professor of Law at UCLA Law School, has posted an ASIL insight arguing that the frontline of the legal battle over American detention policy will likely become Bagram. HT to International Law Reporter.

04/21/09:  The Wall Street Journal features an opinion piece by William McGurn in which he argues that Bagram Air Base is becoming Obama's Guantanamo as Obama comes to terms with the reality that, "the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military."

04/14/09: Glenn Greenwald on Salon.com analyzes recent judicial opinions and past statements by President Obama when he was a Senator to draw the conclusion that the Obama administration's decision to argue for its right to keep prisoners not abducted in Afghanistan at Bagram air base without a right of habeas corpus places it to the right of the Bush administration's legal approach to the war on terror, and is irreconcilable with Obama's pre-election statements on the subject.

04/13/09: A New York Times editorial argues that the Obama administration could remedy its uncharitable treatment of detainees at Bagram air base by creating and installing a process to review the status of all detainees held there. The process would distinguish detainees captured on the Afghanistan battlefield from those who had been arrested elsewhere and had nothing to do with the conflict in Afghanistan.

04/11/09: The New York Times reports that the Obama administration said Friday it would appeal a district court ruling by US District Judge for the District of Columbia John D. Bates that granted some military prisoners in Afghanistan the right to file lawsuits seeking their release. The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight.

04/10/09: In Slate, constitutional lawyer Bruce Fein argues that DC District Court Judge John Bates' ruling last week in Maqaleh v. Gates that the administration could not detain prisoners at the Bagram air force base with no opportunity to challenge their detention was a welcome check on the Obama administration's czarlike wielding of executive authority.

04/09/09: The LA Times has an editorial about DC District Court Judge Bates' recent decision holding that detainees held at Bagram air base in Afghanistan may challenge their confinement in US courts. Judge Bates relied on Boumediene, which extended habeas to Guantanamo.  Given the narrowness of the Boumediene decision, the Obama administration might well convince a majority of the justices that Bates overreached. Ideally, the administration would avoid a Supreme Court ruling on the issue by quickly instituting new procedures at Bagram that would satisfy Bates. Otherwise, Obama will be accused of perpetuating not only the Bush administration's legal theories, but its indifference to injustice.

04/03/09: Scotusblog on yesterday's ruling by US District Judge Bates, holding that some of the detainees being held at Bagram Air Force base can challenged their detention through habeas corpus. Based on Boumediene, Judge Bates held that no matter where in the world the U.S. government chose to set up a detention site, prisoners held there might gain legal rights to challenge their captivity, so long as the U.S. had sufficient control of the site. The decision is the most important setback in detainee matters so far for the new Obama Administration.  The LA Times and NPR have coverage as well.

04/02/09: The New York Times reports that Judge John Bates of the U.S. District Court for the District of Columbia ruled prisoners in the war on terror being held at a Bagram Airfield in Afghanistan have a right to challenge their detention in a U.S. court.  Holding that Bagram is essentially the same as Guantanamo, the decision uses the multifactor test set out in Boumediene, the Supreme Court decision that extended habeas rights to Guantanamo. The opinion is here.

03/14/09: Amnesty International reports that, like the Bush administration two months earlier, the Obama administration redacted details of its court filing which updated the number of people held at Bagram Air Force base. HT to The Lift.

03/09/09: Karen Greenberg argues in Slate that the Obama administration should close its detainee facility at Bagram Air Force base in Afghanistan because the legacy of detainee treatment there is equal to or worse than the history of detainee treatment at Guantanamo.

03/08/09: An op-ed in the Washington Post argues that President Obama must give those held at the Bagram air base in Afghanistan a way to challenge their detentions. In short, the article claims that those seized on the Afghan battlefield should be afforded full-fledged Article 5 proceedings under the Geneva Conventions. But those detained outside Afghanistan and brought to Bagram are entitled to more.

02/21/09:  SCOTUSblog reports that the Obama Administration, in a full embrace of a controversial Bush Administration policy, told a federal judge on Friday afternoon that some 600 detainees being held by the U.S. military at Bagram airbase in Afghanistan have no right to go to U.S. courts to challenge their confinement.  In a one-paragraph reply to District Judge John D. Bates, the Justice Department said: “Having considered the matter, the Government adheres to its previously articulated position.”

02/12/09: The Christian Science Monitor reports that as Guantánamo is being drawn down, a large-scale construction is under way at a US military prison in Bagram, Afghanistan. Some critics are already calling it "Obama's Guantánamo." And it looks to become the next big flash point in a long legal tug of war over the direction of America's antiterror policies. With the US about to escalate the war in Afghanistan, the Bagram prison is likely to play a more visible and important role in that conflict.  HT to How Appealing

02/11/09:  The ACLU has won FOIA release of documents concerning the treatment of detainees in the War on Terror.  The unredacted Church Report details investigations of deaths at Bagram in 2002 following interrogation sessions, and calls the alleged behavior of military personnel "clearly abusive, and clearly not in keeping with any approved interrogation policy or guidance."  The ACLU has also released other reports of investigations into deaths that took place in Afghanistan and Iraq – as well as Abu Ghraib abuses.

01/28/09: Matthias Gebauer argues in Der Spiegel online that to demonstrate the seriousness of his commitment to break with the Bush administration's detainee practices, President Obama will also have to resolve the status of terror suspects held at Bagram Air Force base in Afghanistan. The International Herald Tribune reports on the differences between Bagram and Guantanamo

1/23/09:  SCOTUSBlog reports that President Obama’s changed policy on military detention at Guantanamo Bay, Cuba, announced Thursday, made no mention of the more than 600 prisoners the U.S. military now holds at another overseas prison — Bagram air base outside Kabul, Afghanistan.  A White House official told reporters, at a briefing, not to expect any changes to existing policies in Afghanistan for at least six months.

1/07/09: SCOTUSblog and The Miami Herald report that in the case concerning whether detainees at Bagram have habeas corpus rights, DC District Judge Bates voiced concern over the government creating a black hole for detainees in a law-free zone, hinting that he may permit some of the detainees to file habease cases to challenge their captivity. The government stated, "If habeas applies to Bagram, it runs to the four corners of the world." Judge Bates indicated that he would rely on where an individual was captured, i.e. whether or not on the battlefield, before being imprisoned at Bagram. Three, and perhaps all four of the pending cases were captured "nowhere near the battlefield" in Afghanistan. The lead case is Wazir v. Gates.

1/07/09: The Washington Post argues that even its waning days and despite several rebukes by the Supreme Court, the Bush administration continues to espouse extreme theories about the detention of terrorism suspects. The paper cites detainees at the Bagram air base in Afghanistan, including Haji Wazir, who has challenged his detention in a habeas corpus filing in U.S. District Court for the District of Columbia, where Judge John D. Bates is to hear the matter today. The case is Wazir v. Rumsfeld.

01/07/09: The Miami Herald reports on the detainees' challenge here.

01/05/09: SCOTUSBlog has a post discussing the upcoming case which will decide whether the habeas corpus rights that were extended to Guantanamo in Boumediene also reach Bagram air force base in Afghanistan. The cases, Wazir v. Rumsfeld, Mawalah v. Rumsfeld, Al Bakri v. Gates, Al-Najar v. Gates will be heard by DC District Judge Bates at 10 am on Tuesday. The detainees contend that the military objective at Bagram is the same as it was at Guantanamo, while the DOJ contends that the Supreme Court's rulings have not application to the prison at Bagram, and that Bagram is part of ongoing military operations and thus there is no role for the courts to play.

12/17/08:  The AmLawDaily reports that the case of Ruzatullah and Rohullah v. Gates has ended with the release of the two petitioners and subsequent voluntary dismissal.  However, the legal fight on behalf of other prisoners detained indefinitely without charge at the U.S.-run Bagram air base will continue. Four remaining habeas cases involving Bagram inmates are pending before U.S. district judge John Bates in Washington.  Oral argument is scheduled for January 7 on whether detainees at Bagram are entitled to habeas corpus review.

12/10/08:  BusinessWire reports that Redha al-Najar, a Tunisian national, who has been held without charge in U.S. military custody since May 2002, has filed a habeas lawsuit against the United States government.  The petition asks the court to order the release al-Najar and to allow him to resettle in a country other than Tunisia.  According to the petition, al-Najar was arrested in May 2002 in Karachi, Pakistan and held without access to counsel or any tribunal by the U.S. military at different CIA black sites for nearly two years, before being transferred to Bagram Airbase.

06/29/08: The Washington Post has an article discussing how lawyers are seeking to secure the writ of habeas corpus for detainees being held in Bagram Air Base in Afghanistan.  Via Opinio Juris.

Thread: Habeas at Bagram (Wazir v. Rumsfeld, Mawalah v. Rumsfeld, Al Bakri v. Gates, Al-Najar v. Gates)

• US District Judge Bates' opinion (04/02/09)