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Detainees Get More Time to Adjust Habeas Petitions

(CN) - Three men being detained at Bagram Airfield in Afghanistan may amend their habeas petitions with new evidence, a federal judge in Washington, D.C., ruled, extending the deadline for their petitions to April 4.

Though U.S. District Judge John Bates first made the determination on Feb. 15, he retracted the decision last week for amendments. The latest opinion, filed March 25, remains the same, but a fourth petitioner's name has been removed.

The original ruling reflected four consolidated cases, but the detainees removed one case from the caption, noting his case had previously been dismissed as moot.

In 2009, when Bates first agreed to hear the habeas petitions of Yemeni citizens Fadi al Maqaleh and Amin Al Bakri, and Tunisian Redha al-Najar, he rejected the petition of Afghan citizen Haji Wazir.

Al Maqaleh, Al Bakri and al-Najar, who were captured outside Afghanistan and brought to the U.S. detention facility, are eligible to invoke the Constitution's suspension clause to seek habeas corpus in U.S. courts. Wazir's status as an Afghan citizen, however, complicated the court's ability to hear his case.

After Bates approved the three men's petitions in 2009, the D.C. Circuit reversed his decision and dismissed the petitions for lack of jurisdiction in 2010. The men 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.

When President Obama took office in 2009, the court asked the government to express "any change in its position on the jurisdictional question." The answer came back that the administration "adheres to its previously articulated position."

Bates' latest decision describes the general nature of the new evidence that the petitioners in the three remaining cases will present. It includes: "operational and substantive changes to the U.S. detention system at Bagram Air Base, including the commencement of civilian criminal trials for Afghan nationals there; movement and retention of detainees in Afghanistan allegedly reflecting executive branch efforts to avoid judicial scrutiny of detention practices and policies; and current specifics of plans to continue to hold non-Afghan detainees in a new facility at Bagram in an attempt to evade any obligations before the courts."

The government countered that the evidence is not actually new, and its consideration would prove "futile."

Bates said that the government had a point, but the best way to find out for sure is to see what the petitioners have to say.

"The proffered evidence is extensive (and arguably evolving) and, in some ways, its impact under the Boumediene/Maqaleh factors is subtle," Bates wrote, referring to guidelines for detainees' habeas petitions (parentheses in original). "While the court has some doubts about the consequence of the additional evidence under that analytical framework, that issue is better explored through full consideration of the evidence and the parties' positions, rather than under the limited 'futility' appraisal in which it is now presented."

The judge also rejected the petitioners request to conduct additional discovery.

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