Court: Bagram Prisoners Don’t Have Guantanamo Habeas Rights

Washington — A key appellate court on Friday concluded prisoners held at Bagram Air Force Base in Afghanistan cannot challenge their captivity through rights granted under the U.S. Constitution.

In a much-anticipated decision, the U.S. Court of Appeals for the D.C. Circuit ruled Yemeni native Fadi Al-Magaleh and two other men did not enjoy the same habeas rights previously extended by the Supreme Court to Guantanamo Bay detainees.

Citing geographic and other differences between the air base in Afghanistan and the naval base in Cuba, the three-judge panel overturned a trial court’s conclusion that the Bagram detainees were constitutionally similar to those held in Guantanmo.

“Guantanamo Bay is a territory that, while technically not a part of the United States, is under the complete and total control of our government,” Judge David Sentelle wrote. At Bagram, he added, “the surrounding circumstances are hardly the same.”

The United States has controlled Guantanamo Bay for over a century, while Sentelle noted that at the leased, sprawling Bagram facility “there is no indication of any intent to occupy the base with permanence.”

The appellate panel further noted that Bagram, unlike Guantanamo, is “exposed to vagaries of war” because of its location in an active war zone.

The wartime setting, as well as potential complications in dealing with a sovereign Afghan government, undermined the detainees’ claims that they are protected by the Constitution.

“While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that relationship, neither can we say with certainty what the reaction of the Afghan government would be,” Sentelle wrote.

A Republican appointee, Sentelle is generally considered one of the most conservative judges on the influential D.C. Circuit. He was joined by two Democratic appointees who generally are part of the court’s liberal wing, judges David Tatel and Harry Edwards.

The ruling is a marked victory for the Obama administration, although the court made clear it was not adopting all of the administration’s reasoning, some of which Sentelle called “extreme.”

The case’s next stop could well be the Supreme Court. Court nominee Elena Kagan would have to recuse herself from the case if confirmed, because as solicitor general she has overseen the Obama administration’s case.

Maqaleh was captured in Zabul, Afghanistan, in 2003. Redha Al-Najar is a native of Tunisia who says he was captured in Pakistan in 2002. Amin Al-Bakri is a Yemeni citizen who says he was captured in Thailand in 2002. The United States considers each man to be an enemy combatant. They are being held at Bagram, the largest military facility in Afghanistan. The United States has formally leased the facility from the Afghan government since 2006.