The government claims the U.S. does not have nearly the control over the Bagram Airfield as it does over Guantanamo Bay, and thus the reasoning of the Supreme Court in extending habeas rights to Guantanamo should not apply to Bagram.
It also noted that Bagram is in the midst of a war zone; Guantanamo is not. It asserted that civilian court review of Bagram detentions would actually compromise the military mission in Afghanistan.
The Munaf decision also has no application to Bagram, the government's motion contended, because that involved U.S. citizens, not foreign nationals.
Lawyers for the Bagram detainees noted that some of them have been held for more than six years, so any argument the Justice Department might have made against habeas rights abroad has now lost its force "after so much time has passed."
They say the issue "is whether the Executive can create a modern-day Star Chamber, where it can label an individual an 'enemy combatant' or 'unlawful enemy combatant,' deny him any meaningful ability to challenge that label, and on that basis, detain him indefinitely, virtually incommunicado, subject to interrogation and torture, without any right of redress."
The lawyers note that the Supreme Court has rejected such efforts at
Guantanamo on three occasions. But it added that the government is now seeking "to revive their effort to create a prison beyond judicial scrutiny by arguing that habeas does not extend to Bagram because they have deliberately located their Star Chamber in an airfield they contend is outside their 'realm,' for the express purpose of avoiding compliance with domestic civil, criminal, military, and international law."
Bagram, their brief contended, "is not a temporary holding camp, intended to house enemy soldiers apprehended on the battlefield, for the duration of a declared war, finite in time and space." It said the "war on terror" as
conceived by the government is "unlimited in duration and global in scope."
It also noted that, unlike Guantanamo, Bagram is a permanent prison. Thousands of individuals from all over the world have been taken to the airfield prison, and nearly 700 remain there now, and it is being expanded with a new prison to hold more than 11,000. Moreover, they argued, Bagram detainees do not even have the minimal procedural guarantees to have their captivity reviewed that Guantanamo prisoners have in the so-called "Combatant Status Review Tribunals." The military does not operate CSRTs as Bagram.
Lawyers for the four men -- two Yemeni, one Tunisian and one Afghan -- said none was captured while in battle or otherwise directly aiding terrorist groups.
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.
"What evidence is there to believe they would return to the battlefield?" Judge Bates asked Deputy Assistant Attorney General John O'Quinn. "They were not on the battlefield to begin with."
While there is no timetable for a court ruling, it is clear that it will not come during the waning days of the George W. Bush Administration. Like the issue of how to close Guantanamo, the Bagram issue will be left to the new presidency of Barack Obama to solve.
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