By CHARLIE SAVAGE - NY Times - Published online on September 24, 2012
WASHINGTON — Lawyers for three men who have been imprisoned by the United States military in Afghanistan without trial for nearly a decade are renewing their quest for hearings in American courts. They say new information has emerged that undermines an appeals court ruling against them two years ago.
That information — which the lawyers are filing as documents in the United States District Court here — includes a letter by the chief of staff to President Hamid Karzai of Afghanistan declaring that the Afghan government does not want custody of the detainees and that it “favors these individuals having access to a fair judicial process, and adjudication of their case by a competent court.”
The prisoners are two Yemenis and a Tunisian who say they were captured outside Afghanistan and that they are not terrorists. They want a federal judge, John D. Bates, to review the evidence against them and, if he agrees that they are being held by mistake, to order the military to repatriate them. Detainees imprisoned at Guantánamo Bay, Cuba, already have such habeas corpus rights.
There are believed to be about a dozen such men — non-Afghans captured elsewhere — who have been imprisoned for years by the United States military at Bagram Air Base, north of Kabul.
In 2009, Judge Bates ruled that he could hold hearings for the three, but in 2010 an appeals-court panel unanimously reversed him. It cited an array of factors, including potential practical obstacles to extending Guantanámo-style habeas rights to a prison in a war zone.
The appeals court also said that American courts should be wary of extending constitutional protections to detainees on Afghan soil because it might have negative diplomatic consequences. But Ramzi Kassem, a City University of New York law professor who is helping represent the detainees, said the letter from Mr. Karzai’s chief of staff called that premise into question.
“Our clients, like the prisoners at Guantánamo, should get their day in court,” Mr. Kassem said.
Recently, Mr. Kassem and a colleague, Tina Foster of the nonprofit International Justice Network, asked Judge Bates to rule again that he could hold habeas corpus hearings for their clients. At a hearing in July, Judge Bates told the detainees’ lawyers, “What you have to do is convince me that there’s new evidence that should change the outcome.”
But a Justice Department lawyer, Jean Lin, told the judge at that hearing that nothing had changed since the appeals court reversed him.
The lawyers obtained the letter from Mr. Karzai’s chief of staff during a trip to Afghanistan this month at their own expense. The trip was timed to coincide with hearings before a military panel weighing whether to keep holding or to repatriate several clients.
In a declaration, Ms. Foster said that the detainees, through military officials in Afghanistan assisting them to prepare for the administrative hearings, had reached out to the lawyers about serving as witnesses. When they got to Afghanistan, however, they were told that the Pentagon had decided not to let them participate in person or by phone, despite a rule saying that “reasonably available” witnesses were allowed. Their clients, she said, then boycotted their hearings as unfair.
The lawyers also submitted declarations from a retired Army colonel, Lawrence Wilkinson, who served as a top aide to Colin Powell, then the secretary of state, and also from Glenn L. Carle, a former C.I.A. official. Both Colonel Wilkinson and Mr. Carle have criticized aspects of the second Bush administration’s counterterrorism policies. Each wrote that a “likely” motive in bringing detainees to Afghanistan was a desire to evade judicial review of their detention.
At the July hearing, however, the Justice Department argued that courts should be concerned only if detainees who already had habeas corpus rights were taken to a place where they would no longer have them, which they said was not the case with these detainees.