Bagram Hearing Looks at ‘Child Soldier’ Plight

WASHINGTON (CN) - Appellate judges showed little compunction Tuesday about the detention at the U.S. air base in Bagram, Afghanistan, of a possible child soldier.

Hamidullah Khan is one of several Bagram prisoners pursuing a related challenge to indefinite detention.

Though Khan's age is contested, his lawyers say that their client was 14 when he was picked up in Pakistan. The five years that he subsequently spent in Bagram account for more than a quarter of his life, his lawyers say.

The habeas corpus lawsuit Khan joined was filed in 2006, the same year that the Supreme Court granted its first review of such cases to Guantanamo detainees in the case Hamdan v. Rumsfeld. Two years later, the high court struck down the portion of the Military Commissions Act of 2006 depriving detainees of that right, in the decision of Boumediene v. Bush.

In the wake of both decisions, U.S. District Judge John Bates ruled that the Military Commissions Act of 2006 also could not support the captivity of the Bagram plaintiffs.

A three-judge panel of the D.C. Circuit reversed in 2010, however, finding that Bagram differs from Guantanamo because of its location in an active war zone.

On remand, lawyers for the detainees claimed to have found new evidence that the U.S. sent their clients to Bagram specifically to avoid judicial review. This time, Judge Bates found against the Bagram detainees, setting the stage for another appellate court battle.

Hoping for a new outcome, the detainees' lawyers encountered a new three-judge panel on Tuesday that peppered both parties with questions and allowed arguments to stretch far beyond their allotted time.

Zuckerman Spaeder attorney John Connolly told the court that Khan's status as "a minor fundamentally changes the analysis."

Appearing skeptical, Judge Thomas Griffith asked, "Is that right?" He added that the court had to confine its inquiry to jurisdiction without considering the merits of Khan's detention.

Connolly replied that courts dating back to the institution of habeas corpus rights in England have given more flexibility to cases involving children than those involving adults.

With a dearth of information coming out of Bagram, the lawyer added, "We have no evidence that he was a child soldier."

Connolly said he knows only that his client "was a child."

Under international law, using a child under the age of 15 as a soldier qualifies as a war crime. Connolly said this enables the United States to successfully assert jurisdiction over a case involving the person who allegedly conscripted Kahn, if his identity became known.

The United States has a responsibility to "release and rehabilitate these children," Connolly argued.

Judge Griffith added: "After detention."

Justice Department lawyer Sharon Swingle noted the government's skepticism of Khan's age.

"Just to be clear, he is no longer a minor," she said, referring to Khan.

Carving out an exception for child soldiers would create an incentive for detainees to underestimate their ages, the lawyer added.

Citing unspecific public-source information, Swingle insisted that Khan was being kept apart from the adults in Bagram and educated in prison.

Connolly said he and other attorneys for Khan had never before heard that assertion.

The defense attorney ended his argument for Khan in a final appeal to the judges' emotions.

"This is not a homeless or stateless person," but rather some with a "stable family" who "loves him," Connolly said.

Earlier in the hearing the court heard arguments over Yemeni citizen Fadi al-Maqalah and other detainees represented by International Justice Network attorney Tina Forster.

She told the three-judge panel that a "vast judicial complex at Bagram" run by the Afghan government has conducted thousands of trials since the last time the case was argued in appellate.

While U.S. observers still facilitate the trials in that facility, government officials signaled that they want to cede control entirely to Afghanistan. Meanwhile, roughly 60 detainees remain at separate part of the facility outside Afghanistan control, including men held for more than a decade despite being cleared for release, Foster said.

Judges Griffith and Stephen Williams echoed the prior court's reluctance to second-guess the decisions of military commanders.

Foster replied that the Supreme Court did just that in the Boumediene ruling, and that her clients were "not captured by the military" but rendered by the CIA to "black sites."

Eric Lewis, her co-counsel from the Washington-based firm Lewis Baach PLLC, added that his client, Amanatullah Ali, wound up in Bagram after being picked up by the British in Iraq.

"The only military that could be second-guessed here is British," Lewis said.

Echoing the claims of other lawyers for Bagram prisoners, Lewis said that the U.S. refused to disclose any information about why his client was captured. Government officials choose not to include such information on their court affidavits, he added.

Swingle, the Justice Department lawyer, also did not let on such information during her oral arguments against civilian court oversight of the Bagram prison. Instead, she cited unspecified "practical obstacles" that such a change would cause to U.S. forces in Afghanistan.

"Not only are we in the midst of an active conflict, we are in the process of trying to wind it down," she said.

She insisted that there was "no evidentiary basis" to conclude that the Bagram transfers aimed to skirt judicial review. There could be intelligence reasons for such transfers, she said.

On rebuttal, Foster countered: "After 13 years, it's hard to imagine any intelligence value [my client] would have." She played down the obstacles of having judicial review over "war zone," a phrase she diminished by making scare quotes with her fingers.

Judge Griffith appeared taken aback by the gesture.

Despite the continuing fighting in Afghanistan, the Bagram facility was still able to conduct thousands of trials, Foster explained.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit