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 Three appeals court judges said in an unanimous decision that because Afghanistan is a war zone and that the United States in effect has sovereignty over Guantanamo Bay swing the balance against the detainees.
Unlike Guantanamo Bay, "it is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war," the judges said in turning aside the requests of a Tunisian and two Yemeni prisoners.
In the case of Guantanamo Bay detainees, who do have the right to challenge their confinement in U.S. courts, the United States has maintained its total control of the Guantanamo Bay facility for over a century, even in the face of a hostile government, the court noted.
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. Ramzi Kassem, an attorney who represents one of the three detainees and who worked with the International Justice Network on the case, said that Supreme Court review will be sought.
Among the supporters of the decision was Sen. Lindsey Graham, R-S.C., who said that allowing a non-citizen enemy combatant detained in a combat zone access to American courts would have been a change of historic proportions and "would have dealt a severe blow to our war effort."
The Justice Department declined to comment on the ruling.
The United States is holding the detainees at the military prison on Afghan territory through a cooperative arrangement with Afghanistan.
"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.
During appeals court arguments in the case in January, the other two appeals judges in the case, Harry Edwards and David Tatel, seemed to struggle with the problem of whether they could craft a narrowly constructed opinion that would affect only the three men and not lay the groundwork for opening up the judicial branch of government to many other detainee cases now and in the future.
Friday's decision spelled out that issue and referred back to January's argument.
"The court engaged in an extended dialog with counsel for the petitioners in which we repeatedly sought some limiting principle that would distinguish Bagram from any other military installation. Counsel was able to produce no such distinction, said the ruling.
Sentelle wrote that the three detainees "seem to be arguing that the fact of United States control of Bagram under the lease of the military base is sufficient ... we reject this extreme understanding."
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 Under that interpretation, noncitizens held in any U.S. military facility in the world arguably could challenge their detention, said the appeals court opinion.
Sentelle, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is an appointee of President Ronald Reagan. Edwards was appointed by President Jimmy Carter, and Tatel by President Bill Clinton.
Classified as unlawful enemy combatants, the three detainees in the case are Redha al-Najar, a Tunisian citizen; and Fadi al Maqaleh and Amin al Bakri, both Yemeni citizens.
Amin al Bakri says he was captured in Thailand in 2002 and held at an undisclosed location before being moved to Bagram. Redha al-Najar says he was captured in Pakistan in 2002. Fadi al Maqaleh says he was taken into custody outside Afghanistan in 2003, though he does not say where.
Kassem, the lawyer for al Bakri, said that whenever the Supreme Court has ruled on indefinite imprisonment at Guantanamo Bay, it has ruled in the detainees' favor and that all of those decisions were reversals of the court of appeals in Washington, D.C.
"With due respect to the appeals court, our view is that this case was wrongly decided, that our clients are entitled to their day in court and we will take that up to the Supreme Court," said Kassem, a law professor at City University of New York. Al Bakri, said Kassem, is a businessman who was abducted by the CIA in Bangkok, Thailand, while on a business trip and taken to Afghanistan where he has been imprisoned since 2002.
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.
[Associated
Press; By PETE YOST]
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