Jihad Watch
If this stands, it will make it impossible for the U.S. to wage war. Soldiers will be afraid to take prisoners for fear of being tied up in lawsuits -- and given the experience with Litigation Jihad that American Muslim advocacy groups have been honing for years, we can expect to see a great deal of this. "Judge: Afghan prisoners can challenge detention," from AP, April 2 (thanks to Eastview):WASHINGTON (AP) — A federal judge ruled on Thursday that terrorist suspects can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.
U.S. District Judge John Bates turned down the United States' motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.
The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.
Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.
The Obama administration sided with the Bush White House when it argued on Feb. 20 that detainees at Bagram Airfield cannot use U.S. courts to challenge their detention.
The Justice Department has argued 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 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 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.
Justice Department spokesman Dean Boyd would only say that the department is reviewing the ruling.
Bates, a U.S. Army veteran and former career Justice Department official, was among the first district judges nominated by President George W. Bush. His decision was partially redacted with a discussions of classified material.
Bates considered motions to deny the requests of four detainees asking to be released, but he reserved judgment on one 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.
The other three detainees are from outside Afghanistan — Fadi al Maqaleh of Yemen, Amin al Bakri of Yemen and Redha al-Najar of Tunisia — and say they were captured outside the country.
Bates also suggested that access to U.S. courts may not be available to Bagram detainees who were captured in Afghanistan.
"It is one thing to detain those captured on the surrounding battlefield at a place like Bagram, which respondents correctly maintain is in a theater of war," Bates wrote. "It is quite another thing to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theater of war, where the Constitution arguably may not reach. Such rendition resurrects the same specter of limitless executive power the Supreme Court sought to guard against."
All four of the detainees in this case have been held at the airfield for six years or more without access to the courts, which Bates called "an unreasonable amount of time." Bates wrote that the determination to hold them as enemy combatants is part of a process "plainly less sophisticated and more error-prone" at Bagram than it is at Guantanamo.
The Bush administration said in court filings 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.
Bates noted that Bagram detainees are not allowed any representation when their enemy combatant status comes up for review and they have no access to evidence used to classify them as such so that they can defend themselves. Bates said they face language and cultural barriers and cannot even speak on their own behalf but only can submit a written statement.
The Justice Department said last month that they will no longer use the term "enemy combatant" to refer to prisoners at Guantanamo Bay. But they said that new position does not apply to prisoners elsewhere.
Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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