Judge says U.S. must alert lawyer on detainee transfer

Times Staff Writer

A federal judge in Washington ordered the U.S. not to transfer a detainee held in U.S. custody in Afghanistan without giving 30 days’ notice to his attorney.

U.S. District Judge Gladys Kessler issued the ruling on behalf Haji Rohullah, who worked as a driver before being taken into custody by the U.S. in August 2006 at a farm owned by his family in Jalalabad.

The judge’s ruling marks a milestone in legal challenges to the Bush administration’s practice of indefinitely detaining people in the war on terror, said New York attorney Tina Monshipour Foster, executive director of the International Justice Network and one of Rohullah’s attorneys.


Kessler said her ruling, issued late Tuesday, was necessary to preserve the status quo pending the outcome of a case before the U.S. Supreme Court on whether detainees held outside the U.S. have any legal rights in American courts.

Rohullah is one of about 650 prisoners held at a prison at U.S. Bagram Air Base in Afghanistan. An estimated 14,000 are being held without charge by the U.S. worldwide.

On behalf of Rohullah and another Afghan prisoner at Bagram, Foster filed suit seeking their release last November, asserting that they were being held without justification.

The two “are not, nor have they ever been, enemy aliens, lawful or unlawful belligerents, or combatants of any kind under any definition adopted by” the U.S. in any civil or military proceeding, according to the suit. The duo had no involvement in the Sept. 11, 2001, terrorist attacks or the armed conflict that ensued afterward in Afghanistan and neither is a member of the Taliban, according to the lawsuit.

In August, Foster and attorney Eric Lewis asked Kessler to order the government to provide 30 days’ notice of any transfer of Rohullah. They said that the second man was transferred on June 19 “to the purported custody of the Afghan government,” and that the Defense Department asserted that as a consequence it had relinquished “all legal and physical custody of him,” thereby depriving any U.S. court of jurisdiction.

However, the attorneys asserted, the man was being held in the national security wing of Pul-i-Charki prison east of Kabul, Afghanistan, which is under the control of the U.S. military.


In light of the transfer of 56 prisoners from Bagram to Pul-i-Charki since the special wing opened in April, attorneys Lewis and Foster contended, Rohullah was “at significant risk of being transferred to [Pul-i-Charki prison] and the nominal custody of the Afghan government.”

The attorneys asserted that if he were transferred, Defense Department lawyers would contend that he was beyond the jurisdiction of any U.S. court and that he might be tortured if transferred.

Justice Department attorney Jean Lin countered that the court had no jurisdiction to grant the motion. She said it would be an “extraordinary and drastic remedy,” which would bar the executive branch “from acting in spheres in which it has been vested by the Constitution to act.”

In effect, Lin said, Rohullah’s attorneys were asking Kessler “to interfere directly with the executive’s conduct of war-making and foreign policy.”

Kessler disagreed, finding that she had jurisdiction. She said a transfer could have a significant impact on Rohullah’s legal rights and that evidence had been presented “that he would face a serious threat of torture in [Pul-i-Charki].”

Earlier this year, in a case filed on behalf of Lakhdar Boumediene, a prisoner at the Guantanamo Bay Naval Station in Cuba, the U.S. Court of Appeals in the District of Columbia ruled that aliens captured or detained by the United States outside of the U.S. do not have a right to challenge their detentions via habeas corpus petitions.


But on June 29, the Supreme Court granted review of that case, and Kessler cited the Supreme Court order in her ruling.

“The resolution of that question is likely to directly affect the outcome” of Rohullah’s case, Kessler wrote. “Although the agreement of five justices” to hear the Boumediene case “certainly does not predict the outcome on the merits, it does demonstrate the Supreme Court’s recognition of the importance of the case,” Kessler wrote.

There is now “a deep shadow of uncertainty over” the decision holding that U.S. courts had no jurisdiction over cases like this one, Kessler wrote.

She also said the government had overstated the amount of relief Rohullah was seeking. “He requests only an order requiring” the Department of Defense to provide notice of a potential transfer -- not an order barring transfer -- pending the outcome of the Supreme Court decision in Boumediene.