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Detainees at Guantanamo Bay, Cuba, have the constitutional right to challenge their detentions in American courts. That was the recent finding of the U.S. Supreme Court. Today, a federal judge considers whether the same right extends to detainees at a U.S. military prison near Kabul, Afghanistan. Here's NPR's Dina Temple-Raston.
DINA TEMPLE-RASTON: The prison is Bagram Air Base, and the question is whether the Supreme Court ruling that gave Guantanamo prisoners habeas corpus rights extends to other terrorism suspects as well. And the case's outcome will likely hinge on whether the judge sees Bagram as a prison like Guantanamo or as a battlefield detention facility in a war zone.
Ms. BARBARA OLSHANSKY (Lawyer): Bagram is probably more like Guantanamo than Guantanamo was.
TEMPLE-RASTON: Barbara Olshansky is one of the lawyers in the case. She's representing four Bagram detainees who have been held for six years without charge and are challenging their detention there.
Ms. OLSHANSKY: This is the last vestige, we hope, of a policy that tries to lock people away without charge or trial forever.
TEMPLE-RASTON: Justice Department officials declined to speak about the case on tape, but in their legal brief, they say that Bagram and Guantanamo couldn't be more different. Bagram is in use in an ongoing military operation and, they say, that means there's no role for the U.S. courts there. They also argue that Bagram's detainees are warriors captured on the field of battle. And that's true of most of the prisoners there now. But according to Tina Foster of the International Justice Network, her clients were picked up in third countries and then taken to Bagram.
Ms. TINA FOSTER (Founder and Executive Director, International Justice Network): The only reason that our clients are anywhere near Afghanistan is because the United States government brought them to Afghanistan and to Bagram against their will.
TEMPLE-RASTON: Here's one reason why Bagram's fate is so important now. Ever since the Supreme Court gave Guantanamo detainees the right to challenge their detentions in the Boumediene case, the favorite place to send terrorism suspects has been Bagram. If the case being heard today is decided against the government, that legal netherworld could vanish. That said, David Laufman, a former Justice Department lawyer, says a close reading of last summer's Supreme Court ruling gives the government the advantage.
Mr. DAVID LAUFMAN (Former Justice Department Lawyer): The Supreme Court in Boumediene left the door open to agreeing with the position taken by the government in this case.
TEMPLE-RASTON: He says that's because the Supreme Court is sensitive to the fact that if a detention facility is in a war zone, having to deal with prisoners filing writs of habeas could be impractical. John Sifton is a lawyer who has been dealing with Afghan issues for nearly a decade, and he says the Obama administration can tinker at the edges of policy to avoid these kinds of legal problems.
Mr. JOHN SIFTON (Lawyer): The issue going forward is avoiding these types of situations by adopting a more nuanced way of looking at the detainees it captures overseas.
TEMPLE-RASTON: He says the Obama administration can distinguish itself by not treating all terrorism suspects, whether masterminds or hangers-on, the same way.
Mr. SIFTON: Some might be Taliban fighters captured on the battlefield. Others might be persons of interest who have intelligence that might be useful to the CIA or to the military. But these are the nuances that have been lacking for, you know, the last eight years. This sort of sense that some people might be one type of detainee and others might be another.
TEMPLE-RASTON: The dilemma for President-elect Obama is that Bagram could help him keep his promise to close Guantanamo. The Afghan detention facility provides a place to keep prisoners while the new administration tries to figure out what to do with detainees who are just too dangerous to release. Right now, Bagram has about 700 prisoners. A new prison is under construction there. It will be able to hold about 10,000 more. Dina Temple-Raston, NPR News.