Please be aware that, in the last paragraph, this article erroneously states that Ms. Foster agrees with the government attorneys regarding the issue of jurisdiction.  It continues to be the IJN's position that the U.S. court system retains jurisdiction in these matters.   

Yemeni Detainee Can Continue His Case

Posted in the Yemen Observer, Front Page
Written By: Kawkab al-Thaibani
Article Date: Jul 24, 2007

A federal court in Washington, D.C. rejected the U.S. government’s request to dismiss the case of Fadi al-Maqaleh, who is being held in U.S. custody without charges or a trial at a U.S.-run prison in Afghanistan, said a lawyer with the International Justice Network, a human rights group working to assist people held unlawfully in U.S prisons around the world that provides support for local human rights efforts.  The IJ Network filed a habeas corpus petition to challenge the legality of Mr. Fadi al Maqelah’s detention in October 2006, immediately following Congress’ passage of the Military Commissions Act, said Tina Foster, the executive director of the IJ Network. 

Habeas corpus is the name of a legal action through which a person can seek relief from unlawful detention of himself or another person in court. The MCA purports to strip federal courts of the power to hear any claims brought by non-citizens held in U.S. custody outside the geographic boundaries of the United States - including those held at Guantanamo and other detention facilities -- regardless of the role of the U.S. government in the unlawful seizure and detention of the people imprisoned.

The case, Maqaleh v. Gates, is the first legal challenge of its kind made on behalf of a foreign detainee held in U.S. custody outside of the United States or Guantanamo.  Finding in favor of Mr. al Maqaleh, Federal Judge, the Honorable John D. Bates, noted that the Supreme Court’s recent decision to hear the appeals of Guantanamo prisoners challenging the MCA warranted a rejection of the government’s motion to dismiss al Maqelah’s case for lack of jurisdiction. 

While holding that the government would be free to re-file its motion to dismiss the case, should the Bush Administration win the upcoming MCA challenge in the Supreme Court, Judge Bates opined that “the Supreme Court could issue a broader ruling in favor of the detainees, one whose reasoning applies not only to Guantanamo, but to Bagram and other locations as well.” The detention center at Bagram Airfield has been heavily criticized for its abusive treatment of prisoners.  In 2005, the New York Times reported that two detainees had been beaten to death by guards, and Amnesty International has used the word “torture” to describe treatment at the detention center.

Foster filed the case after meeting Maqaleh’s father, Ahmad al-Maqaleh, while she was in Yemen doing research on Guantanamo detainees. “A lot of families came to me saying there were worse problems at Bagram than at Guantanamo,” Foster told the Los Angeles Times.  In response to the decision, Stanford law professor and IJN Legal Director, Barbara Olshansky stated that “Judge Bates’ decision represents an acknowledgment that the Bush Administration has cut the heart out of our democracy by disregarding the Constitution, our military codes, and international law.

 His order is an implicit confirmation of what human rights field workers and investigative journalists have been speculating since the Supreme Court’s Rasul v. Bush decision, which upheld the Guantanamo detainees’ right to challenge the legality of their detention in court--that the Administration has shifted its unlawful detention practices to Bagram and other, secret facilities around the world.”  “The decision of the judge was that al-Maqelah’s case can continue for now,” said Foster to the Yemen Observer. 

It is the first step in getting the courts in the US to consider the case of anyone being detained by the US military outside of the US or Guantanamo.  We still have a long way to go before the judge considers whether he has the right to demonstrate that he is innocent in the court.  However, this act does not mean that al-Maqaleh will be free. “The judge did not say that he will be freed, The judge did not say that he has the ‘right’ to seek his freedom, but instead said that we can continue his case in the court for now because it is not yet clear whether the court has jurisdiction to hear the case -- he believes that the supreme court may decide these issues in the Guantanamo case,” said Foster.

Justice Department attorney Jean Lin said that Judge Bates had no jurisdiction to hear the case, even if Foster’s allegations were true, said the Los Angeles Times.  Lin said that federal courts have no jurisdiction over habeas corpus petitions filed by aliens abroad and detained as enemy combatants in a military base outside sovereign U.S. territory.

The D.C. Circuit Court said the Military Commissions Act of 2006, which precludes claims based on the Geneva Convention, left no other ruling possible. Lin also said that a 1950 Supreme Court decision held that aliens detained abroad by the United States had no constitutional rights.  
Foster agreed with what Lin said. “It is true that the government lawyers have said that even if all of our allegations are true, that the court does not have jurisdiction to hear the case. My opinion is that will be no change in al-Maqaleh’s situation until the Supreme Court decides the Guantanamo cases."