WASHINGTON — Detainees at Bagram Air Field in Afghanistan cannot use U.S. courts to challenge their imprisonment the way detainees in Guantanamo Bay have, a federal appeals court ruled Friday.
The United States is holding the detainees at the military prison on Afghan territory through an arrangement with Afghanistan, three appeals court judges said in a decision turning aside the request of a Tunisian and two Yemeni prisoners.
The jurisdiction of the U.S. courts does not extend to foreigners held at Bagram in the Afghan theater of war, added the judges, who said a U.S. district judge should have thrown out the detainees' petitions.
"While we cannot say that extending our constitutional protections to the detainees would be in any way disruptive of that relationship" with the Afghan government, "neither can we say with certainty what the reaction of the Afghan government would be," said the opinion written by Judge David Sentelle.
Sentelle, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is an appointee of President Ronald Reagan. He was joined in the unanimous decision by Judge Harry Edwards who was appointed by President Jimmy Carter, and Judge David Tatel who was appointed by President Bill Clinton.
Headed to the high court?
Tina Foster, a lawyer for the Tunisian and the two Yemenis, said Friday that lawyers working on the case might seek a review from the entire panel of appeals court judges, but it’s likely that lawyers will ask the Supreme Court to examine the case.
Video: Obama team appeals on Bagram “It is important that this not be the last word on this topic. Otherwise the government can essentially kidnap anybody from any part of the world, send them to a secret prison and detain them for the rest of their lives without ever having a trial," Foster said.
“We are going to continue to challenge and fight the policy that was put in place by the Bush administration and which continues to be defended by the Obama administration,” she said.
As a presidential candidate in 2008, Barack Obama praised the Supreme Court ruling that granted prisoners at Guantanamo habeas corpus rights to challenge their detention.
He applauded Justice Anthony Kennedy’s decision in Boumediene v. Bush as “a rejection of the Bush administration's attempt to create a legal black hole at Guantanamo.” But Obama’s critics say his policy has made the Bagram prison his own “legal black hole” in Afghanistan.
The Obama administration won praise Friday from a prominent Republican, South Carolina Sen. Lindsey Graham, for its handling of the Bagram case.
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The appeals court ruling "is a big win," Graham said. "I am very pleased with and relieved by this decision ... I also truly appreciate the Obama Administration for standing firm and opposing the lower court ruling."
He added that "allowing a non-citizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions. It would have dealt a severe blow to our war effort."
None of the three men were captured in Afghanistan nor did they have any connection to Afghanistan, yet they were sent there after U.S. forces captured them, Foster said.
"Had the plane turned left and gone to Guantanamo, they would have had a hearing by now, but the U.S. government for whatever reason decided the plane would turn right” and they were sent to Bagram, she said.
How is Bagram different from other bases?
Law professor Kal Raustiala, director of the UCLA Burkle Center for International Relations, said at the oral argument before the appeals court in January, the judges “really pressed the detainee’s lawyer (Foster) for a principle that would distinguish Bagram from every other American military base around the world. She never satisfied them, so I’m not surprised that they ruled in favor of the government. That slope is very slippery.”
Raustiala added that the appeals court judges “focused on the incontestable fact that Bagram is in the middle of an escalating war — indeed, just the other day it was attacked by Taliban forces. That made this case quite different from Guantanamo.”
Obama’s Supreme Court nominee Elena Kagan, the solicitor general, was the chief signatory on the government’s brief in the case and likely will recuse herself if the high court agrees to hear it.
The Associated Press and msnbc.com's Tom Curry contributed to this story.
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