Since U.S. soldiers took him from his home in Jalalabad last year, Haji Rohullah has been socked away in what is colloquially known as “the other Guant�namo” — the Bagram Theatre Internment Facility, located about 27 miles north of Kabul in the largest U.S. military base in Afghanistan.
Rohullah, 40, and 11 other men were rounded up and taken to a nearby American base. Ten were released, but Rohullah was sent to Bagram, which lies just beyond the Hindu Kush mountains in Southeast Afghanistan — and, according to the Justice Department, well beyond the grasp of the U.S. federal courts, where Rohullah and two other Bagram detainees are challenging their confinement like hundreds of detainees at Guant�namo Bay, Cuba.The cases are among the first wave of habeas corpus petitions from detainees held at facilities other than the naval base at Guant�namo. In Cuba, detainees benefit from limited rights to judicial review as well as the base’s proximity to the American coast — and by extension, to the American conscience, defense lawyers say. As Tina Foster, a lawyer for the International Justice Network representing one of the Afghan detainees, puts it, “Legally, Afghanistan is far away in people’s minds.”The Bagram cases, filed last fall in the U.S. District Court for the District of Columbia, have revealed the most detailed information to date about the U.S. military’s methods for reviewing the combat status of detainees outside of Guant�namo Bay, and they portend, Foster and others say, the next front in a legal battle over the administration’s policy of indefinite detainment. One of the cases, which includes a petitioner who was recently transferred from Bagram to an Afghan prison, is also testing whether foreign detainees can go to U.S. courts and challenge their confinement by showing American control by proxy.”We’re pushing the envelope,” says Baach, Robinson & Lewis partner Eric Lewis, who, with Foster, is representing an Afghan detainee. “We’re trying to establish a principle beyond Guant�namo that wherever the U.S. operates and has people in custody and control in a fixed area, American officials have an obligation to provide minimal rights.”Unlike their counterparts in Guant�namo Bay, Bagram detainees — there are about 650, up from 530 in 2005, according to the Defense Department — have no access to lawyers. Nor do they have a right to contest their status as “enemy combatants” before a tribunal. Rather, a panel of five officers reviews their combat status within 75 days of their capture and then twice a year thereafter, unbeknownst to the detainees, according to government court filings.The panels, called Enemy Combatant Review Boards, vote on the detainees’ status after reviewing evidence, much of it culled from military personnel involved in the capture, and then forward the recommendation to the commanding general or his designee, according to government court filings. None of the detainees have been charged, and one of the petitioners, Ruzatullah, who, like many other Afghans, goes by one name, was offloaded to the Afghan government in June and placed in the new American-financed, high-security wing of the Pol-e-Charki Prison, a 2,700-inmate lockup just east of Kabul.The Justice Department moved to have the cases dismissed, arguing that the Military Commissions Act of 2006, as well as the U.S. Court of Appeals for the D.C. Circuit ruling over the summer, explicitly stripped detainees captured and held abroad of a constitutional right to habeas relief. Judge John Bates, a George W. Bush appointee, and Senior Judge Gladys Kessler, appointed by President Bill Clinton, denied the motions, ruling that the jurisdictional questions could not be answered before the Supreme Court reviews Boumediene v. Bush to determine whether prisoners at Guant�namo Bay have a right to challenge their detention in federal court. It’s unclear whether the justices will tailor the ruling to include detainees held elsewhere. Oral arguments in the case are scheduled for December.”Both of those judges are extremely careful individuals. This doesn’t commit them to a particular outcome, but it is evidence they are taking these cases seriously,” says Eugene Fidell, a military justice professor at Yale University Law School and name partner at Feldesman Tucker Leifer Fidell in Washington.WHO’S IN CHARGE?The jurisdictional questions inevitably force comparisons of Bagram and Guant�namo Bay, whose detainee population is about 330 — down from 500 in 2005. The Supreme Court has held that the latter is, essentially, an extension of the United States. (A good example of this interrelationship: Iguanas that scramble onto the naval base are protected by the Endangered Species Act.) The U.S. lease with Afghanistan for the Bagram lands is still in its infancy, compared with the century-long pact between Cuba and the United States governing Guant�namo. And many doubt whether the lease amounts to what the Supreme Court described as the United States’ “plenary and exclusive jurisdiction” over Guant�namo Bay.But Ruzatullah’s case is more expansive, testing the legality of his confinement in the wing of an Afghan-controlled prison, where, according to Afghan defense lawyers, American officials are still largely calling the shots.A handful of cases have been launched in U.S. courts by detainees abroad, who allege they are in the “constructive custody” of the United States. Bates conceded partial discovery in the 2005 case of Omar Abu Ali, an American challenging his detention in Saudi Arabia. After the ruling, Ali was promptly transferred to the United States, where he was tried and convicted on terrorism-related charges.The question of whether a foreign detainee can follow in Ali’s steps will loom large as the U.S. government releases more detainees into the custody of foreign powers, lawyers say.”Treating a person in the ostensible control of one government as in the custody of another government is not a particularly far reach,” Fidell says.If demonstrating such custody in court is thorny for defense attorneys, actually drafting detainees to test the theory has been a titanic challenge.Abdullah Azimi, a defense lawyer for the International Legal Foundation-Afghanistan, tried unsuccessfully for seven months to gain access to Bagram. After learning that several inmates, including Ruzatullah, had been transferred to the new wing of Pol-e-Charki, he went there in July to meet with them.In an affidavit filed in the U.S. District Court for the District of Columbia in August, Azimi says he was told by prison staff that the former Bagram detainees were housed in a separate part of the prison, the Afghan National Defense Facility, from which attorneys were barred until the detainees’ files had been transferred to the Afghan National Security Court. The court has since been dissolved, creating a legal purgatory for the 56 former Bagram detainees, as well as a handful of former Guant�namo Bay detainees who have been transferred there, Azimi says.When he appealed to the Ministry of Defense’s legal adviser to the prison, Lt. Col. Mohammad Nader Khan, Azimi claims Khan told him that he would have to consult with his American adviser, a man identified in the declaration as “Anderson,” who Azimi suspects is an “American military person… that worked for the Combined Security Transition Command.” The next time the two men spoke, Khan said Azimi would need a letter signed by the minister of defense authorizing access to the former detainees, Azimi alleges.”I have not yet been able to secure such a letter,” Azimi writes. “It does not appear that the Bagram detainees will be tried in any Afghan court in the near future.”Lal Gul, chairman of the Afghanistan Human Rights Organization, says he has received requests from nine families of former Bagram detainees in Pol-e-Charki for legal representation, but Afghan officials have hemmed and hawed over his requests for access, directing him to another agency, another office, another bureaucrat, he says.”Everybody knows who’s really in control. They just won’t say it,” Gul says.”No, Pol-e-Charki is not run by Americans,” says Lt. Col. Todd Vician, a Pentagon spokesman. “U.S. military personnel, as well as some contractors, are mentoring the Afghan National Guard force. The mentoring mission includes coaching, teaching, and training the Afghan guard force about detention operations consistent with international standards. Those mentors are only engaged with assisting with daily operations of the facility, in a support role.”WAITING ON ‘BOUMEDIENE’The Justice Department, which declined to comment for this article, argues in court documents that, even if Kessler had jurisdiction to hear habeas petitions from Rohullah and Ruzatullah — which she does not — neither the Military Commissions Act nor the D.C. Circuit offer any rationale for following the case into an Afghan prison.The petition before Bates was filed by Fadi al-Maqaleh, a 25-year-old Yemeni native. Bates denied the government’s motion to dismiss the case in July, writing that the issue of whether Bagram detainees enjoyed a common-law right to have their detention reviewed must first be answered.”Putting to one side what may ultimately be significant differences between the Guant�namo detainees and those confined at Bagram, the answer to this question is equally relevant here,” Bates wrote, effectively suspending the case until the Supreme Court rules in Boumediene.Kessler shored up her jurisdiction earlier this month, ordering the government to give the court 30 days’ advance warning if it plans to transfer Rohullah.”Since the dissolution of the Afghan National Security Court, it is possible that no other court in that country would have jurisdiction to hear his claims,” Kessler wrote in an Oct. 2 order.She again appeared receptive to the idea of “constructive custody” on Oct. 17, when she asked the government to file briefs in response to Foster’s request for a report on the status of Ruzatullah.Foster filed the motion after Afghan officials executed — by firing squad — 15 convicted prisoners from Pol-e-Charki on Oct. 9, breaking a three-year moratorium on the death penalty. (None of them had been imprisoned in the national defense wing, Foster says.) Kessler has not yet issued an order on the report, but the government, in a brief filed last week, appeared exasperated at having to discuss the issue: “Respondents have briefed extensively this Court’s lack of jurisdiction over this habeas petition.”