- The Washington Times - Thursday, January 8, 2009

A federal judge Wednesday questioned whether four men seeking to challenge their detention as terror suspects at a U.S. base in Afghanistan were likely to take to the battlefield if released.

Lawyers for the men said they should have the right to sue for their freedom - a right already given to detainees at Guantanamo Bay, Cuba. Justice Department attorneys argued that giving the Afghanistan detainees the same right would be too risky.

The hearing in U.S. District Court in Washington tested whether a 2008 Supreme Court decision - allowing al Qaeda and Taliban suspects at the U.S. naval base in Cuba to challenge their detention - should be extended to detainees held at military prisons overseas.

“These individuals are no different than those detained at Guantanamo except where they’re housed,” U.S. District Judge John D. Bates said during more than three hours of arguments.

The Justice Department argued that releasing purported enemy combatants into the Afghan war zone - or even diverting U.S. personnel there to consider their legal cases - could threaten security. Deputy Assistant Attorney General John O’Quinn described that as just one of the differences between detainees at Guantanamo and those at Bagram Air Base, located 40 miles outside the Afghan capital of Kabul.

“In a theater of conflict, diverting attention is what gets people killed,” he said.

The four men - two Yemeni, one Tunisian and one Afghan - all have been held at Bagram for about six years.

Judge Bates questioned whether the four should even be considered enemy combatants because they claim to not have been on a battlefield or even in Afghanistan when they were captured. Evidence proving where each of the four were has not been made public, and their attorneys are largely relying on statements from the International Committee of the Red Cross and other detainees who have since been released to build their case for freedom.

“What evidence is there to believe they would return to the battlefield?” Judge Bates said. “They were not on the battlefield to begin with.”

One of the four men claims to have been captured in the Arab emirate of Dubai. Mr. O’Quinn disputed that and said that if detainees are given the right to challenge their imprisonment based on whether they were swept up, “everyone will say they were captured in Dubai. And the U.S. disputes that in this case.”

Mr. O’Quinn also noted that Osama bin Laden would receive similar treatment were he captured - no matter where.

“Post-9/11, the battle is not limited to the traditional battlefield,” Mr. O’Quinn said. “And we learned that on 9/11.”

Attorney Barbara Olshansky, representing three of the four men, said the government “has not learned the lessons of Guantanamo.”

“There is no more complete analogy or mirror to Guantanamo than this [case] could ever be,” said Ms. Olshansky, of the International Human Rights Clinic at Stanford Law School.

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