Peace and Justice Post

People arrested outside of Afghanistan and detained at Bagram should have the same rights as those held at Guantanamo. This misguided ruling leaves them with no legal remedy against indefinite and unlawful detention.

Andrea Prasow, senior counterterrorism counsel at Human Rights Watch

(Washington, DC) – A US federal appeals court ruling today that bars the courts from hearing the claims of detainees arrested outside of Afghanistan and brought to Bagram Air Base in Afghanistan leaves them without legal recourse against unlawful detention and other abuses, Human Rights Watch said today.

In April 2009, a federal district court ruled that three men held at Bagram who were arrested outside of Afghanistan had the right to challenge their detention in US federal court. Citing the Supreme Court’s historic 2008 ruling in Boumediene v. Bush, the court found that the three men were similarly situated to detainees at Guantanamo Bay. Today’s ruling, issued by the US Court of Appeals for the DC Circuit, reversed that decision, finding that because Afghanistan is “a theater of war,” detainees held at Bagram, regardless of where they were captured, have no constitutional right to challenge their detention in a US court.

“People arrested outside of Afghanistan and detained at Bagram should have the same rights as those held at Guantanamo,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “This misguided ruling leaves them with no legal remedy against indefinite and unlawful detention.”

The three detainees in question – two Yemenis and a Tunisian – all claim they were captured outside of Afghanistan, far from any battlefield. Human Rights Watch has interviewed close relatives of one of the Yemenis, Amin al-Bakri. Al-Bakri’s father told Human Rights Watch that he had to hire a private detective to learn that his son, a gem trader and father of three, was picked up in late 2002 during a business trip to Thailand. He said he did not receive a letter from his son for a full year after his arrest.

The ruling will likely be appealed to the Supreme Court, although the court need not accept the case. The Supreme Court has rejected the DC Circuit’s reasoning in numerous other detainee cases, including Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush, each time finding that the detainees had greater rights to judicial review than the DC Circuit had held.

In its ruling today, the court acknowledged that the review procedures available to the Bagram detainees “afford even less protection” than the procedures that were available at Guantanamo. Since Guantanamo detainees have been able to challenge their detention in court, the federal district courts have ordered the release of 35 detainees, while finding that the government was lawfully detaining only 13.

While holding that US courts do not have jurisdiction over Bagram, the appellate court rejected the government’s broader claim that all detainees held outside the United States and Guantanamo have no constitutional right of access to the courts.

Human Rights Watch expressed concern about the incentives created by the court’s ruling, noting that systematic and notorious detention abuses over the past decade have underscored the need for court scrutiny of detention of people apprehended outside of the United States.

“The appeals court holding means that people apprehended anywhere in the world can be whisked off to Bagram and hidden from court review,” Prasow said. “Just because the plane landed at Bagram instead of Guantanamo should not mean they can be held indefinitely without any court review.”

(Washington, DC, May 21, 2010) – A US federal appeals court ruling today that bars the courts from hearing the claims of detainees arrested outside of Afghanistan and brought to Bagram Air Base in Afghanistan leaves them without legal recourse against unlawful detention and other abuses, Human Rights Watch said today.

In April 2009, a federal district court ruled that three men held at Bagram who were arrested outside of Afghanistan had the right to challenge their detention in US federal court. Citing the Supreme Court’s historic 2008 ruling in Boumediene v. Bush, the court found that the three men were similarly situated to detainees at Guantanamo Bay. Today’s ruling, issued by the US Court of Appeals for the DC Circuit, reversed that decision, finding that because Afghanistan is “a theater of war,” detainees held at Bagram, regardless of where they were captured, have no constitutional right to challenge their detention in a US court.

“People arrested outside of Afghanistan and detained at Bagram should have the same rights as those held at Guantanamo,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “This misguided ruling leaves them with no legal remedy against indefinite and unlawful detention.”

The three detainees in question – two Yemenis and a Tunisian – all claim they were captured outside of Afghanistan, far from any battlefield. Human Rights Watch has interviewed close relatives of one of the Yemenis, Amin al-Bakri. Al-Bakri’s father told Human Rights Watch that he had to hire a private detective to learn that his son, a gem trader and father of three, was picked up in late 2002 during a business trip to Thailand. He said he did not receive a letter from his son for a full year after his arrest.

The ruling will likely be appealed to the Supreme Court, although the court need not accept the case. The Supreme Court has rejected the DC Circuit’s reasoning in numerous other detainee cases, including Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush, each time finding that the detainees had greater rights to judicial review than the DC Circuit had held.

In its ruling today, the court acknowledged that the review procedures available to the Bagram detainees “afford even less protection” than the procedures that were available at Guantanamo. Since Guantanamo detainees have been able to challenge their detention in court, the federal district courts have ordered the release of 35 detainees, while finding that the government was lawfully detaining only 13.

While holding that US courts do not have jurisdiction over Bagram, the appellate court rejected the government’s broader claim that all detainees held outside the United States and Guantanamo have no constitutional right of access to the courts.

Human Rights Watch expressed concern about the incentives created by the court’s ruling, noting that systematic and notorious detention abuses over the past decade have underscored the need for court scrutiny of detention of people apprehended outside of the United States.

“The appeals court holding means that people apprehended anywhere in the world can be whisked off to Bagram and hidden from court review,” Prasow said. “Just because the plane landed at Bagram instead of Guantanamo should not mean they can be held indefinitely without any court review.”