(CN) – A federal judge in Washington, D.C., agreed to hear the habeas corpus petitions of three detainees held at Bagram Airfield in Afghanistan, but denied to hear a fourth’s because of his Afghan citizenship, citing the “possibility of friction” with the country.
U.S. District Judge John Bates approved the petitions of Yemeni citizens Fadi al Maqaleh and Amin Al Bakri, and Tunisian Redha al-Najar – all foreign nationals captured outside Afghanistan and brought to the U.S. detention facility.
The three men are eligible to invoke the Constitution’s suspension clause, which lets them seek habeas corpus in U.S. courts.
But Haji Wazir can’t draw on the suspension clause for relief, Bates said, because as an Afghan citizen, he is subject to transfer to Afghan custody, making the United States answerable to Afghanistan for its actions involving Wazir.
The release of an Afghan detainee “could easily upset the delicate diplomatic balance the United States has struck with the host government,” Bates wrote.
In the wake of the 2008 Supreme Court decision Boumediene v. Bush, which allowed Guantanamo detainees to challenge the legality of their detention, the judge determined that Bagram detainees should have the same privilege.
“Aside from where they are held, Bagram detainees are no different than Guantanamo detainees,” Bates wrote.
He said the petitioners are “virtually identical” to the detainees in Boumediene, non-citizens captured abroad and then brought to another country to be jailed. Bagram detainees can invoke the suspension clause of the Constitution, the judge determined, depending on three factors.
To meet the first factor, the United States must have a high degree of objective control over the petitioner’s detention site, a requirement satisfied for the four prisoners because the United States has “practically absolute” control at the Bagram facility, the ruling states.
The second factor, which looks at the process used to make a detainee’s enemy combatant status determination, also rules in favor of Bagram detainees, who are classified as enemy combatants under much less stringent standards than those used at Guantanamo. Bagram detainees are forced to represent themselves to a three-person review board and can only submit a written statement to defend themselves without seeing any evidence the United States used to justify their detention.
The last factor involves the practical obstacles of reviewing detainees’ habeas petitions. Though Bagram is under threat of suicide bomb attacks and other violent action, this does not strip the prisoners of their rights to seek habeas corpus, the judge ruled. But in Wazir’s case, he added, the possibility of friction with the host government makes him ineligible for habeas review.
The judge deferred ruling on the government’s motion to dismiss Wazir’s habeas petition, saying he wanted to explore an “alternative vehicle” for habeas review.
Of the estimated 650 detainees held at Bagram, about 30 were captured outside Afghanistan.