[Vision2020] The more things change the more they stay the same

[Glenn Schwaller]

By NEDRA PICKLER and MATT APUZZO

WASHINGTON (AP) — The Obama administration, siding with the Bush White
House, contended Friday that detainees in Afghanistan have no constitutional
rights.

In a two-sentence court filing, the Justice Department said it agreed that
detainees at Bagram Airfield cannot use U.S. courts to challenge their
detention. The filing shocked human rights attorneys.

"The hope we all had in President Obama to lead us on a different path has
not turned out as we'd hoped," said Tina Monshipour Foster, a human rights
attorney representing a detainee at the Bagram Airfield. "We all expected
better."

The Supreme Court last summer gave al-Qaida and Taliban suspects held at the
U.S. naval base at Guantanamo Bay, Cuba, the right to challenge their
detention. With about 600 detainees at Bagram Air Base in Afghanistan and
thousands more held in Iraq, courts are grappling with whether they, too,
can sue to be released.

Three months after the Supreme Court's ruling on Guantanamo Bay, four Afghan
citizens being detained at Bagram tried to challenge their detentions in
U.S. District Court in Washington. Court filings alleged that the U.S.
military had held them without charges, repeatedly interrogating them
without any means to contact an attorney. Their petition was filed by
relatives on their behalf since they had no way of getting access to the
legal system.

The military has determined that all the detainees at Bagram are "enemy
combatants." The Bush administration said in a response to the petition last
year that the enemy combatant status of the Bagram detainees is reviewed
every six months, taking into consideration classified intelligence and
testimony from those involved in their capture and interrogation.

After Barack Obama took office, a federal judge in Washington gave the new
administration a month to decide whether it wanted to stand by Bush's legal
argument. Justice Department spokesman Dean Boyd says the filing speaks for
itself.

"They've now embraced the Bush policy that you can create prisons outside
the law," said Jonathan Hafetz, an attorney with the American Civil
Liberties Union who has represented several detainees.

The Justice Department argues that Bagram is different from Guantanamo Bay
because it is in an overseas war zone and the prisoners there are being held
as part of a military action. The government argues that releasing enemy
combatants into the Afghan war zone, or even diverting U.S. personnel there
to consider their legal cases, could threaten security.

The government also said if the Bagram detainees got access to the courts,
it would allow all foreigners captured by the United States in conflicts
worldwide to do the same.

It's not the first time that the Obama administration has used a Bush
administration legal argument after promising to review it. Last week,
Attorney General Eric Holder announced a review of every court case in which
the Bush administration invoked the state secrets privilege, a separate
legal tool it used to have lawsuits thrown out rather than reveal secrets.

The same day, however, Justice Department attorney Douglas Letter cited that
privilege in asking an appeals court to uphold dismissal of a suit accusing
a Boeing Co. subsidiary of illegally helping the CIA fly suspected
terrorists to allied foreign nations that tortured them.

Letter said that Obama officials approved his argument.
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