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Despite Age, Past Success, Detainees Denied Habeas

WASHINGTON (CN) - A federal judge showed no mercy Friday to three Bagram detainees who lost habeas relief on appeal, or one who claims to have been captured at age 14.

Yemeni citizens Fadi al Maqaleh and Amin Al Bakri, and Tunisian Redha al-Najar, were captured outside Afghanistan and have been detained without charge or trial as "unlawful enemy combatants" for more than eight years. They are being held at the U.S.-occupied Bagram Theater Internment Facility on Afghanistan's largest military facility, the Bagram Airfield Military Base.

Though U.S. District Judge John Bates granted the trio habeas relief in 2009, the D.C. Circuit reversed and dismissed the petitions for lack of jurisdiction in 2010.

The men filed an amended habeas petition, but Bates said the appellate court's previous ruling requires him to dismiss it as well.

"As the many lengthy opinions previously written on this issue attest, determining the scope of a federal court's habeas jurisdiction can be enormously complicated," the 24-page ruling states. "But given the D.C. Circuit's opinion in this case, the issue now before this court is quite narrow: whether petitioners' new evidence undermines the rationale of the court of appeals' decision. Consistent with the one other district court that has faced this issue this court concludes that the answer to that question is no."

In a separate ruling, Bates also rejected the amended petition for a writ of habeas corpus by a Pakistan man known only as Hamidullah.

Another Bagram detainee, the court heard Hamidullah's petition along with al Maqaleh, Al Bakri and al-Najar in July.

Bates said that the sole issue Hamidullah raises that is not at play in Al Maqaleh is his age. Hamidullah says he is now 18 or 19 but was captured by the United States when he was just 14.

The court found no precedent, however, for distinguishing juvenile habeas petitions from those of adults.

"The court accepts petitioner's argument that if age is a relevant factor at all, it weighs somewhat in favor of his entitlement to the writ," Bates wrote. "The court also agrees with petitioner that the procedural protections afforded to detainees at Bagram may be less trustworthy in the case of juveniles. As petitioner notes, the lack of an appointed lawyer puts more of the onus of the process on the detainee, and juveniles are less suited than are adults to bearing that burden. On the other hand, the procedural protections for detainees at Bagram have improved somewhat since the D.C. Circuit's decision, and Hamidullah is now nineteen, which together may mitigate the significance of the petitioner's arguments on the 'adequacy of process' factor."

"Petitioner's view that adjudicating a juvenile's habeas petition is easier than adjudicating an adult's petition rests on the mistaken premise that a juvenile petitioner could be automatically released," he added. "As the respondents explain, however, this is indisputably not true. The use of child soldiers may be repellent, but the fact is that some enemy combatants are minors, and § 7 of the MCA [Military Commissions Act] contains no exceptions or special provisions for minors. Hence, adjudicating a habeas petition for a juvenile is actually likely to be more complicated than adjudicating such a petition for an adult. The reviewing court would first have to decide whether the petitioner was in fact a juvenile, which is no simple task given most detainees' lack of any records, the fact that the detainee himself may not know his birthdate, and the limited reliability of scientific testing. After making that determination, the court would then have to adjudicate the merits of the petition just as it would for an adult, although the petitioner's age might add some complexity to the merits analysis as well." (Emphasis in original.)

Bates also noted that, "even if the number of actual juveniles detained at Bagram is small, the number of relatively young detainees who could claim to be juveniles in an attempt to have a habeas petition heard may be considerably larger."

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