A U.S. judge on Wednesday questioned whether four men seeking to challenge their detention as terrorism suspects at a U.S. base in Afghanistan were likely to take to the battlefield if released.
Lawyers for the men said they should have the right to sue for their freedom — a right already given to detainees at Guantanamo Bay. Justice Department attorneys argued that according the Afghanistan detainees the same right would be too risky.
The hearing in U.S. District Court in Washington tested whether a 2008 Supreme Court decision — allowing al-Qaida and Taliban suspects at the U.S. naval base in Cuba to challenge their detention — should be extended to detainees held at other military prisons overseas.
"These individuals are no different than those detained at Guantanamo except where they're housed," U.S. District Judge John D. Bates said during more than three hours of arguments.
A security threat?
The Justice Department argued that releasing alleged enemy combatants into the Afghan war zone — or even diverting U.S. personnel there to consider their legal cases — could threaten security. Deputy Assistant Attorney General John O'Quinn called that just one of the differences between detainees at Guantanamo and those at Bagram Air Base, 40 miles (64 kilometers) outside the Afghan capital of Kabul.
"In a theater of conflict, diverting attention is what gets people killed," he said.
Bates questioned whether the four men should be considered enemy combatants in the first place since they claim to not have been on a battlefield or even in Afghanistan when they were captured. Evidence proving where each of the four were has not been made public, and their lawyers are largely relying on statements from the International Committee of the Red Cross and other detainees who have since been released to build their case for freedom.
"What evidence is there to believe they would return to the battlefield?" Bates said. "They were not on the battlefield to begin with."
One of the four men claims to have been captured in Dubai. O'Quinn disputed that and said that if detainees are given the right to challenge their imprisonment based on whether they were swept up, "everyone will say they were captured in Dubai. And the U.S. disputes that in this case."
O'Quinn also noted that Osama bin Laden would receive similar treatment were he captured — no matter where.
"Post-9/11, the battle is not limited to the traditional battlefield," O'Quinn said. "And we learned that on 9/11."
Lessons of Guantanamo
Attorney Barbara Olshansky, representing three of the four men, said the government "has not learned the lessons of Guantanamo."
"There is no more complete analogy or mirror to Guantanamo than this (case) could ever be," said Olshansky, of the International Human Rights Clinic at Stanford Law School.
But Bates similarly focused on the evidence — or lack of it — surrounding the capture of the men.
"I don't think you can even allege that none of them are enemy combatants," Bates told Olshansky. "I don't know any of the facts, and I don't know that you know as much as you have intimated."
Olshansky sought to focus on human-rights and legal process issues that critics of the Bush administration's terror detentions policy have repeatedly raised with courts. The four men — two Yemeni, one Tunisian and one Afghan — all have been held at Bagram for about six years.
Bates, however, repeatedly steered her to answer how the rights and conditions at Guantanamo compared to those at Bagram.
Bates, who did not issue an opinion from the bench, asked both sides how the case might continue under the incoming administration of President-elect Barack Obama. O'Quinn said the decision of extending detention rights should be left to Congress, while Olshansky said she hoped Obama would settle it.