Afghan Military Prison and Constitutional Law
Court Examines the Rights of Bagram Detainees
Jan 7, 2009
Since the start of the Bush Administration´s “War on Terror”, foreign prisoners of war and suspected terrorists have been held in several military prisons abroad under questionable circumstances and in a legal limbo. The United States Supreme Court ruled in June, 2008, that foreign detainees being held in an American facility in Guantanamo Bay, Cuba, had the constitutional right to challenge their detentions in American civilian courts. Today, attorneys for four Bagram detainees are finally able to present their case before a U.S. Federal Judge asking for the same constitutional right. However, the United States government argues that the detainees in Afghanistan should have their cases heard only in specially convened military tribunals that function outside the reach of the U.S. Constitution.
United States Government
Attorneys with the U.S. Department of Justice filed a motion on December 19, 2008, asking for the case to be dismissed. The motion states that in the government´s opinion: “Federal courts should not thrust themselves into the extraordinary role of reviewing the military's conduct of active hostilities overseas, second-guessing the military's determination as to which captured aliens as part of such hostilities should be detained, and in practical effect, superintending the executive´s conduct in waging a war”. Later on in their argument the government attempts to draw large distinctions between the detainees in Cuba and the detainees in Afghanistan. They claim that Bagram Air Base is being used in an ongoing military operation therefore eliminating any jurisdiction for civilian courts there.
Bagram Detainees
Lawyers for the defense, however, insist that the standard used in the Guantanamo Bay case should be applied to detainees in other U.S. controlled prisons abroad. Kathleen Kelley of the International Human Rights Clinic at Stanford Law School is one of the lawyers representing the detainees. She told the Associated Press that if the same standard was not applied then: “a lot of the Guantanamo detainees could be transferred to Afghanistan — basically shifting the problem somewhere the government argues that they cannot challenge”. Barbara Oshansky, another one of the attorneys involved with this case, told NPR that: “Bagram is probably more like Guantanamo than Guantanamo was… This is the last vestige, we hope, of a policy that tries to lock people away without charge or trial forever”.
Policy Question
Some observers and legal analysts view the current situation of foreign detainees in U.S. military prisons abroad as a challenge to the traditional application of the Laws of War and Habeas Corpus protection. David Cole, a law professor at Georgetown University Law School, recently told The Washington Independent that: “My own view is that if the US is holding somebody subject to its control then that person should have the right to challenge the legality of that detention absent extraordinary circumstances… Why should it matter whether we’re holding someone in Louisiana, Gitmo or Bagram if they’re being held illegally? Shouldn’t they have some right to question that?” Many human rights activists have been using this same argument to lobby President-elect Barack Obama for a reversal of the policies that created these prisons. President-elect Obama has already promised to close such prisons and re-examine the American policies associated with the “War on Terror”.
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