The Obama administration has won the legal right to hold its terrorism suspects indefinitely and without oversight by judges — not at Guantanamo or in Illinois, but rather at the Bagram air base in Afghanistan.
In a 3-0 decision, the U.S. appeals court in Washington ruled for the administration Friday and said the Constitution and its right to habeas corpus does not extend to foreign prisoners held by the U.S. military in Afghanistan because it is a war zone. The judges dismissed claims from three prisoners who were taken to Bagram from Pakistan and Thailand and have been held for as long as seven years.
“It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war,” said Chief Judge David Sentelle, a conservative who was appointed by President Reagan. Joining him were two Democratic appointees, Judges David Tatel and Harry Edwards.
The decision could bring an ironic end to years of legal wrangling over prisoners held by the U.S. military. The ruling, unless overturned by the Supreme Court, appears to the give the Obama administration what the George W. Bush administration had long sought: a place where foreign prisoners can be held by the military out of reach of lawyers and courts.
For months, the Obama administration has debated plans to use Bagram as an alternative to Guantanamo for a small number of prisoners caught outside Afghanistan. Currently, only a dozen or fewer of the Bagram prisoners are foreign fighters, Defense Department officials have said. But that number soon could grow.
The court decision came a day after the House Armed Services Committee voted to block the administration from retrofitting a state prison at Thomson, Ill., to hold high-value prisoners from Guantanamo.
The administration still hopes to transfer the several dozen remaining prisoners from Guantanamo, but it will need approval from Congress. At the same time, at least 645 prisoners are held at the Bagram prison, most connected to the war in Afghanistan.
Civil liberties advocates denounced Friday’s ruling.
It “ratifies the 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, a lawyer for the American Civil Liberties Union.
“Just because the plane landed at Bagram instead of Guantanamo should not mean they can be held indefinitely without any court review,” said Andrea Prasow, a lawyer for Human Rights Watch.
Kirk Lippold, the former commander of the U.S. warship Cole and a fellow with Military Families United, praised the ruling as a “clear vindication” of the military’s authority “to fight the war on terror by preventing terrorists from having access to the American court system.”
The White House and Justice Department had no comment on the ruling.
After 2001 and the launch of war in Afghanistan, the Bush administration sent hundreds of foreign prisoners from Afghanistan, Pakistan and the Mideast to the U.S. Naval Base at Guantanamo Bay, Cuba, believing they could be held there and questioned out of reach of lawyers or courts.
But lawyers went to the Supreme Court arguing that long-term prisoners had a right to plead their innocence before an independent judge. They decried Guantanamo as a “law-free zone.”
They won a series of victories at the Supreme Court, including a 5-4 ruling in 2008 that said the Constitution gave these prisoners a right to habeas corpus because Guantanamo was thousands of miles from a battlefield and had been occupied as sovereign U.S. territory for a century. At the same time, the justices said this right to a court hearing did not extend to battlefields or war zones.
Afterward, the Bush administration insisted the right to habeas corpus did not extend to Iraq or Afghanistan. And in 2009, the Obama administration adopted the same view.
A federal judge in Washington ruled that prisoners who were shipped to the Bagram prison from other countries had a right to challenge their detention, just like the prisoners who were sent to Guantanamo.
The Obama administration appealed and won a reversal in Friday’s decision. In its opinion, the appeals court acknowledged the administration could “evade judicial review of executive detention decisions by transferring detainees into active conflict zones.”
White House officials said Friday they are moving forward with a plan to purchase the vacant state prison in Illinois as a possible location for the remaining Guantanamo detainees.
They said the House committee vote this week does not affect the federal government’s ability to purchase the Thomson prison. Money for the acquisition was set aside in the federal budget for next year, and the sale could take place as soon as Oct. 1.
“We have always maintained that we need increased prison facility,” said White House Press Secretary Robert Gibbs, adding that the proposed law may prevent modifications to the prison but does not prohibit the facility’s purchase.
David S. Cloud of the Washington bureau contributed to this report.