WaPo : In Courts, Afghanistan Air Base May Become Next Guantanamo

In Courts, Afghanistan Air Base May Become Next Guantanamo

By Del Quentin Wilber | Washington Post Staff Writer | June 29, 2008

Jawed Ahmad, a driver and assistant for reporters of a Canadian television network in Afghanistan, knew the roads to avoid, how to get interviews and which stories to pitch. Reporters trusted him, his bosses say.

Then, one day about seven months ago, the 22-year-old CTV News contractor vanished. Weeks later, reporters would learn from Ahmad's family that he had been arrested by U.S. troops, locked up in the U.S. military prison at Bagram air base and accused of being an enemy combatant.

Lawyers representing Ahmad filed a federal lawsuit early this month challenging his detention on grounds similar to those cited in successful lawsuits on behalf of captives at the U.S. military prison at Guantanamo Bay, Cuba. The lawyers are hoping to turn Ahmad's case and a handful of others into the next legal battleground over the rights of terrorism suspects apprehended on foreign soil. More lawsuits are expected on behalf of Bagram detainees in coming months, the lawyers said.

The lawsuits seek the right of habeas corpus for the detainees. Habeas corpus is a centuries-old legal doctrine that gives people taken into custody the right to challenge their detention before a judge.

Although legal experts expressed uncertainty about the potential for success, the detainees' lawyers say they are optimistic. They note the Supreme Court's decision two weeks ago that granted detainees at Guantanamo Bay the right to challenge their detention in federal courts.

"They stopped sending people to Guantanamo and are sending them to Bagram instead," said Barbara J. Olshansky, who represents Ahmad and is the legal director of the International Justice Network, a nonprofit organization that provides legal support to detainees. "In some ways, we have a stronger case than Guantanamo." The U.S. military referred questions about the habeas corpus petitions to the Justice Department and declined to confirm whether any of those who filed suits are being held at Bagram. A Justice Department spokesman declined to comment, saying that lawyers are reviewing the Supreme Court's June 12 decision in Boumediene v. Bush and Al Odah v. U.S.
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In legal filings, however, the Justice Department has fiercely fought the Bagram suits, arguing that "Bagram airfield is in the zone of war" and not in a peaceful locale such as Guantanamo.

"To provide alien enemy combatants captured at the battlefield and detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically," the government argued.

Human rights groups and activists have become increasingly concerned about the U.S. military prison at Bagram, about 40 miles north of Kabul. The prison has grown steadily over the years and has about 600 detainees, military officials said. The military is planning to spend $60 million to build a new, larger facility that would house the same number of captives but could accommodate as many as 1,000.

Some of the Bagram prisoners have been there since 2002, activists said. Although the vast majority were picked up in Afghanistan, activists and lawyers say at least a few were arrested in other countries.

"It provides a convenient place to hold people who you might not want the world to know you are holding," said Tina Monshipour Foster, a lawyer who represents Bagram detainees.

Military officials would not say whether people arrested in other countries are housed at Bagram. But they said they regularly review each detainee's status, release those who are no longer thought to be combatants, and turn others over to Afghan authorities.

Haji Wazir, whose federal lawsuit was filed in 2006, has been held as an enemy combatant since 2002, according to lawyers and human rights activists. But he "is not a commander, not a member of the Taliban or al-Qaeda," said Lal Gul, chairman of the Afghan Human Rights Organization. "He is a businessman."

Gul also complained about the arrest of Ahmad, whose bosses say they are frustrated that he has not had his day in court.

"We have been told nothing about him," said Robert Hurst, president of CTV News, who spent several days with Ahmad in 2006 while visiting Afghanistan. "When we ask, we are told we don't have the right to even ask that question. . . . Our reporters felt very secure around him. He is an excellent young journalist."

Legal experts say they are not sure how the courts will treat the lawsuits. The Supreme Court's majority opinion in the Guantanamo cases, written by Justice Anthony M. Kennedy, focused only on detainees held at the naval base in Cuba. In it, Kennedy took pains to examine the particular circumstances surrounding the detentions, according to David Cole, a law professor at the Georgetown University Law Center.

Among the factors that tilted the ruling in favor of the detainees: The government had complete control over Guantanamo, the detainees had been held for years without trial, and the prison was not near a battlefield.

Lawyers may be successful in applying similar tests to those being held elsewhere, Cole said.

"Bagram will be the next battleground," he said. "Kennedy's decision in Boumediene leaves open the question as to what other places the writ of habeas corpus extends."

Other legal scholars said they thought the courts would be reluctant to grant Bagram detainees such hearings, because the prison is in an area that the U.S. military considers a war zone.

Kennedy alluded to that issue when he wrote that "if the detention facility were located in an active theater of war, arguments that issuing the writ would be 'impracticable or anomalous' would have more weight."

"It seems unlikely that the conditions there are comparable to the conditions" at Guantanamo Bay, said Jonathan Siegel, a law professor at George Washington University's law school.

But Siegel added that Kennedy and other justices "expressed impatience with the notion that the United States can hold people indefinitely without charge."

NYT : Senate Blocks Detainees’ Rights Bill

Senate Blocks Detainees’ Rights Bill

By DAVID STOUT | September 19, 2007

WASHINGTON, Sept. 19 — A move to give terrorism suspects the right to challenge their detentions in federal court fell short in the Senate today, even though it had majority support.

Fifty-six senators voted to cut off debate, and move forward to a vote on the bill itself, a step known as cloture. But under Senate rules, 60 votes are needed to invoke cloture.

Some supporters of the bill said they might bring it up again, although it was not clear just when.

“The truth is that casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values,” said Senator Patrick J. Leahy, Democrat of Vermont, a co-sponsor of the measure with Senators Arlen Specter, Republican of Pennsylvania, and Christopher J. Dodd, Democrat of Connecticut. Mr. Leahy is the chairman of the Senate Judiciary Committee and Mr. Specter the committee’s senior Republican; both are former prosecutors.

The legal concept of habeas corpus (“You have the body” in Latin) dates back to medieval England, and is meant to protect people from being locked up indefinitely without a court review. Last year, Congress passed and President Bush signed an act eliminating the right of habeas corpus for non-Americans who are labeled “enemy combatants” in the continuing campaign against terrorism.

Most immediately, the 2006 act affected hundreds of prisoners held at the Guantanamo Bay naval base in Cuba who the authorities say are Al Qaeda or Taliban militants. More broadly, the act has stoked the ongoing debate over the proper balance between national security and personal liberty in an era of terrorist threats.

Lawmakers should not allow “some of the most brutal, vicious people in the world” to bring lawsuits, Senator Lindsey Graham, Republican of South Carolina, said in arguing against the measure.

Senator Jon Kyl, Republican of Arizona, agreed. “Never has such an unprecedented legal right been granted to a prisoner of war or detainee,” he said.

The Supreme Court agreed in June to consider whether the act’s ban on habeas corpus petitions is constitutional. The American Civil Liberties Union said today it was heartened by the majority support for restoring habeas corpus, even though the measure fell four votes short of advancing.

“Today’s vote was a victory for those seeking to restore both the rule of law and our nation’s Constitution,” said Caroline Fredrickson, director of the union’s Washington legislative office.

Besides Mr. Specter, five other Republican Senators supported the measure. They were Chuck Hagel of Nebraska, Richard G. Lugar of Indiana, Gordon Smith of Oregon, Olympia J. Snowe of Maine and John E. Sununu of New Hampshire. Senator Bernard Sanders, independent of Vermont, also voted for it.

Senator Joseph I. Lieberman of Connecticut, who lists himself as an independent Democrat, was the only non-Republican to vote against it. Senator Saxby Chambliss, Republican of Georgia, did not vote.

NYT : Court Tells U.S. to Reveal Data on Detainees at Guantánamo

Court Tells U.S. to Reveal Data on Detainees at Guantánamo

By WILLIAM GLABERSON | July 21, 2007

A federal appeals court ordered the government yesterday to turn over virtually all its information on Guantánamo detainees who are challenging their detention, rejecting an effort by the Justice Department to limit disclosures and setting the stage for new legal battles over the government’s reasons for holding the men indefinitely.

The ruling, which came in one of the main court cases dealing with the fate of the detainees, effectively set the ground rules for scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants.

It was the latest of a series of stinging legal challenges to the administration’s detention policies that have amplified pressure on the Bush administration to find some alternative to Guantánamo Bay, Cuba, where about 360 men are now being held at the United States naval base.

A three-judge panel of the federal appeals court in Washington unanimously rejected a government effort to limit the information it must turn over to the court and lawyers for the detainees.

The court said meaningful review of the military tribunals would not be possible “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the denominator.”

Advocates for detainees have criticized the tribunals since they were instituted in 2004 because the terror suspects held at Guantánamo have not been permitted lawyers during the proceedings and have not been allowed to see much of the evidence against them.

P. Sabin Willett, a Boston lawyer who argued the case for detainees, called the ruling “a resounding rejection of the government’s effort to hide the truth.”

A Justice Department spokesman, Erik Ablin, declined to comment on the decision, saying the department was “reviewing the decision’s implications and evaluating our options.”

The ruling came in the first case under a 2005 law that provides for limited appeals court review of the military’s Guantánamo hearings, known as combatant status review tribunals.

One of the legal challenges facing the administration is that the Pentagon efforts to try a small number of detainees for war crimes have been stalled since early June, when two military judges ruled there were defects in the procedures that had been followed in declaring the men to be enemy combatants.

Then, later last month, the Supreme Court agreed to hear an appeal from detainees claiming a right to challenge their detentions in federal courts through habeas corpus cases, a contention the administration has fought with some success in the courts and Congress.

The cases in the appeals court and the Supreme Court are both efforts by lawyers for the detainees to challenge the military’s decisions to hold the men.

The lawyers are pursuing habeas corpus rights because such cases would give federal judges far more power to review Pentagon decisions than the appeals court has to review the military tribunal actions. The lawyers have argued that in a 2005 law, Congress so limited the review permitted by the federal appeals court that the detainees need access to federal courts through habeas cases to get a fair review of their detentions.

When the Supreme Court said it would hear the Guantánamo case last month, its order made clear the justices would be carefully watching the appeals court decision as they consider broader Guantánamo issues. In an unusual comment, the Supreme Court’s order in June said, “it would be of material assistance” for the justices to receive arguments from the lawyers that take into account the appeals court ruling setting the rules for the review process.

The case in which the decision came yesterday involved requests by eight detainees for review of decisions by military tribunals.

The ruling also included significant victories for the government, including a decision allowing the Pentagon to limit the subjects that the lawyers can discuss with detainees and authorizing special Pentagon teams to read the lawyers’ mail and remove unauthorized comments.

The decision noted that Congress said the appeals court’s review of the combatant status hearings was limited to determining whether the Pentagon followed its own procedures, and whether an enemy-combatant finding was supported by a preponderance of the evidence.

But it rejected the Justice Department assertion that the court should be able to examine only the information included in the combatant status hearing, not the more expansive information the government might have collected on a detainee.

The ruling was written by Douglas H. Ginsburg, the chief judge of the United States Court of Appeals for the District of Columbia Circuit.

“In order to review compliance with those procedures,” Judge Ginsburg wrote, “the court must be able to view the government information.”

Detainees’ lawyers have argued that the military officials running the hearings may not have collected information that might support the detainees’ cases. But detainees’ lawyers also said the ruling created the likelihood of fresh legal battles over what information in the government’s vast intelligence files was covered, and whether the government in fact produces all its information dealing with specific detainees.

The decision allowed the government to file its information with the court for review if the government argues the contents are too important to be released. It also defined government information as including only that which is “reasonably available.”

Throughout the legal battles over Guantánamo, detainees’ lawyers have argued that the government has used such rules to limit their effectiveness by maintaining control over information.

Wells Dixon, a lawyer at the Center for Constitutional Rights in New York who represents detainees, said that pattern was likely to be repeated. “Once again,” Mr. Dixon said, “we are left to rely on the government to produce all of the information that it says exists.”

Hartford Courant : Lieberman's Vote Needed On Habeas Corpus Bill

Lieberman's Vote Needed On Habeas Corpus Bill

BRIAN WALT | July 18, 2007

Soon, the U.S. Senate will vote on a bill called the "Habeas Corpus Restoration Act" that has the support of a diverse group of judges, religious leaders, legal scholars, human rights and legal justice organizations.

Such widespread support is not surprising since habeas corpus - the right of a prisoner to challenge his or her detention before an independent court - is considered one of the most important pillars of the U.S. Constitution. Simply put, it prevents the government from holding a man behind bars without cause. Yet our elected leader in Washington, Sen. Joseph Lieberman, has not backed the bill.

The nation's founders considered habeas to be an indispensable safeguard against the abuse of executive power. Thomas Jefferson called it "one of the essential principles of our government," and Alexander Hamilton referred to habeas as one of the "greatest securities to liberty and republicanism."

We in the Jewish community have a special stake in restoring the right to habeas corpus. The rule of law is central in our tradition and has protected the rights of Jews along with all others in our democracy. Unlawful detention was a precursor to the deaths of millions of European Jews during World War II. We must thus be vigilant in demanding that we are not complicit in allowing the injustices that were done to us be repeated unto others.

But last year, this staple of our Constitution and international law was revoked. In October 2006, Congress passed the Military Commissions Act, allowing the United States government to revoke the right of habeas to anyone the president labels an "illegal enemy combatant."

This was an enormous expansion of presidential power with terrifying implications. It means that any of the 11.6 million of legal residents in this country - including green-card holders who have been in the United States for decades - could be declared an unlawful enemy combatant, thrown into military custody and denied the chance to contest their detention before an independent court. Neither the detainees nor their families would even have the right to know the evidence against them.

The administration insists that it has not - and will not - abuse its power. It claims that it must have the power to detain potential terrorists and that the courts should not interfere with the president's broad authority as commander in chief.

But habeas corpus is not interference. It is a mechanism for keeping the government honest. If the administration believes that someone poses a threat to American security and takes that person into custody, it has nothing to fear if that person exercises the right to habeas corpus. Habeas hearings will confirm the administration's allegations and silence many of its critics.

Rabbis for Human Rights-North America, which represents hundreds of rabbis from all the movements of Judaism, is among a diverse collection of groups supporting the Habeas Corpus Restoration Act, which would restore to prisoners what the Military Commissions Act took away. We join both Democratic and Republican leaders from the House and the Senate, Christian leaders and organizations, and human rights and legal justice groups in calling for a return to the constitutional and historic right to habeas corpus.

The Jewish people value the rule of law as essential to our own and everyone else's freedom. I urge Sen. Lieberman to vote yes on the Habeas Corpus Restoration Act and restore the historic right, the most important of all checks on judicial abuse of freedom, to prevent potentially innocent men and women from being held without the opportunity of appeal. The right of all prisoners to due process and a fair trial is fundamental to any society that values freedom.

Rabbi Brian Walt is the executive director of Rabbis for Human Rights - North America in West Tisbury, Mass., which is supported by more than 50 rabbis in Connecticut.

Seattle Post-Intelligencer : Habeas Corpus: Change the process

Habeas Corpus: Change the process

Seattle Post-Intelligencer Editorial Board | July 15, 2007

We anxiously await the Senate's discussion this week of the Department of Defense authorization bill (HR1585) for many reasons. It's a biggie.

The bill deals with authorizations for defense spending, training, equipment, tuition for military dependents and more.

Where this bill has 150 amendments attached to it, one, Senate Amendment 2022, co-sponsored by Sens. Patrick Leahy and Arlen Specter, is of particular interest because it would restore habeas corpus rights to those the Bush administration considers "enemy combatants."

Eliminated by the implementation of the Military Commissions Act last year (thank you, Dick Cheney and Congress), habeas corpus rights would allow detainees, such as the roughly 375 indefinitely imprisoned individuals at Guantanamo Bay, to challenge the legality of their detention in court. As it stands, even the few (10) who have been charged are entitled only to a closed military hearing. Our government's treatment of detainees has only served to damage what's left of our credibility on the world stage. How can we claim to stand for values such as freedom and justice when we've been locking up, and in some cases torturing, detainees for five years without giving them access to a proper legal defense?

While the U.S. Supreme Court in late June agreed to hear the appeals of two groups of Guantanamo detainees (a reversal of an earlier decision), we're not holding our breath -- a change in the process is what's required.

WaPo : Justice at Guantanamo

Justice at Guantanamo

Congress has another chance to repair the rules for handling detainees in the war on terrorism.

Wednesday, July 18, 2007; Page A18

THE SENSE of deja vu is overwhelming. Once again, lawmakers are promising to introduce legislation allowing prisoners at Guantanamo Bay to challenge their detentions. Once again, congressional Republicans are vowing to defeat it, as they have before. The deja vu should stop here.

By denying hundreds of detainees the most basic of legal rights, that of challenging their detention, the Bush administration has continued to damage the country's image and moral authority abroad. No government should be allowed to hold people indefinitely without affording them a chance to challenge that detention. Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), ranking minority member Arlen Specter (R-Pa.) and others planned to introduce the Habeas Corpus Restoration Act of 2007 this week to recognize such due-process rights for detainees. The Senate debate over the Iraq war may force a postponement, but it should be a short one. The measure would modify a law passed by the GOP-controlled Congress on the eve of the 2006 midterm elections curtailing legal challenges to detention and would hold that the long-established principle of habeas corpus applies to detainees at Guantanamo. This would allow them access to federal courts to appeal their indefinite detention without charge as "enemy combatants." Such suits, filed before the 2006 law went into effect, had forced the administration to make substantial -- if insufficient -- improvements in procedures for holding, interrogating and trying detainees.

Lawmakers should resist the temptation to punt the matter to the Supreme Court for a decision. The court late last month agreed to hear a challenge to the administration's detainee policy; if lawmakers adopt the Leahy-Specter provision, the Supreme Court case is likely to become moot. Neither side in this debate can be certain how the court will rule, and too many detainees have already been held for too long with too little process for Congress to sit idly by.

The reforms should not stop there. The administration should begin the process of shutting down the Guantanamo prison, as Secretary of State Condoleezza Rice and Defense Secretary Robert M. Gates have urged. Sen. Dianne Feinstein (D-Calif.) last week introduced such legislation, although we believe it would be better for the president to take the initiative. In exchange for recognizing detainees' habeas rights and winding down Guantanamo detentions, the president should ask for Congress's authorization to hold a small number of foreign-born detainees as enemy combatants in the United States and to try a limited number of detainees, such as top al-Qaeda leaders, in special courts that depart in carefully limited ways from conventional criminal or military rules.