Detainees' appeal is rejected

WASHINGTON - Prisoners held in a war zone, such as Afghanistan, don't enjoy the constitutional rights extended by the Supreme Court to detainees at Guantanamo Bay, a key appellate court concluded on Friday, rejecting a challenge brought by three men held at Bagram Air Base near Kabul.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit overturned a trial court's decision that the Bagram detainees who sought the right to challenge their imprisonment in American courts - two Yemenis and a Tunisian - were constitutionally similar to those held at Guantanamo.

The appeals court cited differences between the Afghan facility and the naval base in Cuba.

"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" and "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 the vagaries of war." On Wednesday, driving the point home, seven Taliban fighters died while attacking the facility, roughly 40 miles north of Kabul, the Afghan capital.

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 U.S. Constitution.

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

Sentelle is the chief judge of the influential D.C. circuit and one of its most conservative judges. He was joined by two members of the court's liberal wing, Judges David Tatel and Harry Edwards.

The ruling is a marked victory for the Obama administration, which had adopted the prior Bush administration's arguments for excluding Bagram detainees from constitutional protections.

The court, though, made it 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.

If she is confirmed, court nominee Elena Kagan likely would recuse herself from the case, because as solicitor general she oversaw the administration's arguments.

An estimated 800 detainees are held at Bagram. Relatively few were born and captured outside of Afghanistan, though these detainees are at the heart of the legal dispute.

"There are not a large number of people who fall into this category," said Vijay Padmanabhan, a former State Department attorney-adviser, "but it's a very important case, because it sets the boundaries" for overseas detention.

Now teaching at the Benjamin N. Cardozo School of Law in New York, Padmanabhan said the ruling, if upheld, could allow "the government to pick people up anywhere and just send them to Bagram," where their detention couldn't be challenged.

Sen. Lindsey Graham (R., S.C.) called the decision a "big win" for national security.

"Allowing a noncitizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions," Graham said. "It also would have dealt a severe blow to our war effort."

Yemeni native Fadi al-Maqaleh was captured in Afghanistan in 2003, U.S. officials said. He said he was captured outside the country. Redha al-Najar is a native of Tunisia who said he was captured in Pakistan in 2002. Amin al-Bakri is a Yemeni citizen who said he was captured in Thailand in 2002.

The United States considers the men enemy combatants, and it holds them at Bagram, the largest military facility in Afghanistan.

The Bagram detainees had sought refuge in Supreme Court rulings. In the 2004 case Rasul v. Bush, the court said Guantanamo detainees had a statutory right to challenge their detention through a habeas corpus petition.

In a follow-up 2008 case called Boumediene v. Bush, the Supreme Court ruled that the Guantanamo detainees' right to file habeas challenges was rooted in the Constitution. On Friday, the appellate judges said the same can't be said for men held at Bagram.

Tina M. Foster, executive director of the International Justice Network, who argued the case in the court of appeals, said the group will "continue to challenge" Friday's ruling.

The American Civil Liberties Union expressed disappointment with the decision.

It "ratifies a 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, staff attorney with the ACLU National Security Project.

Read the appeals ruling on the detainees via http://go.philly.com/bagramEndText