Judge denies Afghan’s challenge to detention

WASHINGTON — A federal judge who issued a groundbreaking order allowing military detainees in Afghanistan to go to U.S. civilian courts to challenge their confinement said Monday that the right doesn’t apply to an Afghan prisoner.

U.S. District Judge John Bates’ ruling means the United States can continue to detain Haji Wazir indefinitely at Bagram Air Field in Afghanistan. Court documents say he has been in U.S. custody since he was captured in the United Arab Emirates in 2002.

In April, Bates had allowed three foreign detainees at Bagram who had been captured outside the country to challenge their detention in his court to prevent the U.S. from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.” The government has appealed the Bates’ decision.

It was the first time a judge had extended rights given to terrorism suspects held at the U.S. detention facility at Guantanamo Bay, Cuba, to detainees held elsewhere in the world. The order drew an immediate rebuke from congressional Republicans who said Bates was endangering national security and should not be involved in battlefield decisions.

The Supreme Court ruled last year that detainees at Guantanamo Bay have the right to challenge their detention in court. But the government — first the Bush administration then the Obama administration — had argued that it did not apply to the detainees in Afghanistan because it is in an overseas war zone.

At the time of his initial ruling, Bates gave attorneys on both sides more time to argue whether Wazir should be able to challenge his detention. He said Wazir was a different case because releasing him to the host country where he’s a citizen of could cause “friction” with Afghanistan. He also suggested that access to U.S. courts may not be available to Bagram detainees who were captured in Afghanistan.

Tina Foster, an attorney with the International Justice Network who has been representing Wazir in the case, says the government has given no indication of why he’s being detained. She expressed frustration that the Obama administration is continuing the Bush administration stance of holding Bagram detainees indefinitely without charge.

“All we know is that he’s being held in us custody and according to this administration there’s no court in which he has an ability to challenge his detention,” Foster said in a telephone interview. “No matter what this administration says about torture ending and abusive practices ending, the fact that it won’t even allow transparency into what it’s doing is extremely troubling.”

Foster said Wazir was a businessman who owned a money exchange business with an office in Dubai, and he split his time between Afghanistan and the UAE. She objected to the idea that his rights should be different based solely on where he was born.