January 12, 2010
On January 7th, the D.C Circuit heard oral arguments in the first legal challenge on behalf of detainees at Bagram Airbase in Afghanistan. CUNY Law’s Immigrant & Refugee Rights Clinic and Yale Law School’s Lowenstein International Human Rights Clinic represent Amin al-Bakri, a citizen of Yemen who was disappeared by the U.S. in 2002, and has been imprisoned at Bagram since 2003 without charges or access to an attorney.
Co-petitioners Fadi al-Maqaleh, a citizen of Yemen, and Redha al-Najar, a citizen of Tunisia, are represented by co-counsel at the International Justice Network (IJN). Tina Foster, executive director of IJN, argued the case, Al-Maqaleh v. Gates, on behalf of the petitioners. The Circuit panel will determine whether these detainees have the right to seek the writ of habeas corpus in a U.S. court.
Mr. al-Bakri, whom the United States unlawfully rendered from another country for imprisonment in Afghanistan, was seized against his will by U.S. agents while on a business trip in Bangkok, Thailand, in December 2002. Mr. al-Bakri is believed to have been held and likely tortured at a CIA “black site” before being rendered to Bagram. Months before Mr. al-Bakri’s transfer to Bagram, two detainees were savagely tortured and beaten to death by U.S. interrogators. To this day, the United States has held Mr. al-Bakri without trial or charge, and refused to allow his attorneys to communicate with him.
In April 2009, U.S. District Judge John D. Bates ruled that al-Maqaleh, al-Bakri and al-Najar, have a constitutional right to petition for habeas, relying on the Supreme Court’s landmark 2008 ruling in Boumediene v. Bush holding that detainees at Guantánamo Bay have a constitutional right to challenge their detention by the Executive. It would be a “striking anomaly,” Judge Bates wrote regarding Petitioners’ detention in Afghanistan, “to permit the Executive ‘to switch the Constitution on or off at will’ merely by deciding who will be held where.” However, the Obama Administration has appealed from the decision, arguing that the writ does not reach any of the approximately 600 detainees at Bagram.
The CUNY Law School team is comprised of third-year students Martin Brown, Shirley Lin, and Talia Peleg, and supervised by Professor Ramzi Kassem, director of the Immigrant & Refugee Rights Clinic.
“Just as with Guantánamo Bay, the United States exercises nearly absolute and exclusive control over Bagram Airbase,” said Talia Peleg. “The same concerns about arbitrary detention and lack of independent judicial review that motivated the Supreme Court in Guantánamo apply with equal force to Bagram.”
“One of the most troubling aspects of this case is that these petitioners were apprehended outside of Afghanistan and rendered to a theater of war as far as thousands of miles away for detention,” said Shirley Lin. “For more than six years, they remain unjustly imprisoned without charge, trial, or access to counsel.”
“Though President Obama has vowed to close Guantánamo, the Department of Justice has continued to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights,” said Tina Foster of IJN. “The Obama Administration must end these practices of rendition and indefinite detention, and must provide fundamental human rights to all individuals held in U.S. custody-including at Bagram.”