WASHINGTON — The Obama administration has won the legal right to hold terrorism suspects indefinitely and without oversight by judges — not at Guantanamo, but at the Bagram air base in Afghanistan.
In a 3-0 decision, the U.S. appeals court in Washington ruled for the administration Friday and said the Constitution and its right to habeas corpus does not extend to foreign prisoners held by the U.S. military in Afghanistan because it is a war zone. The judges dismissed claims from three prisoners who were brought to Bagram from Pakistan and Thailand and have been held for as long as seven years.
“It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war,” said Chief Judge David Sentelle, a conservative who was appointed by President Ronald Reagan.
Joining him were two Democratic appointees: Judges David Tatel and Harry Edwards.
The decision could bring an ironic end to years of legal wrangling over prisoners held by the U.S. military. The ruling, unless overturned by the Supreme Court, appears to give the Obama administration what the Bush administration had long sought: a place where foreign prisoners can be held by the military out of reach of lawyers and courts.
For months, the Obama administration has debated plans to use Bagram as an alternative to Guantanamo for a small number of prisoners caught outside Afghanistan. Currently, only a dozen or fewer of the Bagram prisoners are foreign fighters, Pentagon officials have said.
That number soon could grow. The court decision came a day after the House Armed Services Committee voted to block the administration from retrofitting a state prison in Thomson, Ill., to hold high-value prisoners from Guantanamo.
The administration still hopes to transfer the several dozen remaining prisoners from Guantanamo, but it will need approval from Congress. At the same time, at least 645 prisoners are held at the Bagram prison in Afghanistan, most connected to the war in Afghanistan.
Civil liberties advocates denounced the ruling. It “ratifies the dangerous principle that the U.S. government has unchecked power to capture people anywhere in the world, unilaterally declare them enemy combatants and subject them to indefinite military detention with no judicial review,” said Melissa Goodman, a lawyer for the American Civil Liberties Union.
Kirk Lippold, a former commander of the USS Cole, a destroyer attacked in Yemen in 2000, and a fellow with Military Families United, praised the ruling as a “clear vindication” of the military’s authority “to fight the war on terror by preventing terrorists from having access to the American court system.”
After 2001 and the launch of war in Afghanistan, the Bush administration sent hundreds of foreign prisoners to the U.S. Naval Base at Guantanamo Bay, Cuba, thinking they could be held there and questioned out of reach of lawyers or courts.
But the Supreme Court ruled 5-4 in 2008 that the Constitution gave these prisoners a right to habeas corpus because Guantanamo was thousands of miles from a battlefield and had been occupied as sovereign U.S. territory for a century.
