- The Washington Times - Tuesday, June 30, 2009

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.

The case has produced a clash between the Obama administration and human rights groups, who say the new administration in many terrorism cases is embracing legal arguments advanced by the George W. Bush administration.

In April, Judge 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. government from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.” The Obama administration has appealed the April decision.

It marked 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 the judge 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 and 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, Judge Bates gave attorneys on both sides more time to argue whether Mr. Wazir should be able to challenge his detention. He said Mr. Wazir was a different case because releasing him to the host country where he is 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 Mr. Wazir in the case, said the government has given no indication of why he is 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 U.S. custody and according to this administration, there’s no court in which he has an ability to challenge his detention,” Ms. Foster said. “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.”

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

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