Legal Status of Detainees
The George W. Bush administration avoided using the label "prisoner of war" when discussing the detainees held at Bagram, preferring to immediately classify them as "unlawful enemy combatants". This way, it is not necessary under the Geneva Conventions to have a competent tribunal determine their classification. (In previous conflicts such as the Vietnam War, Army Regulation 190-8 Tribunals determined the status of prisoners of war.)
The administration also initially argued that these detainees could not access the US legal system. However, the United States Supreme Court's ruling in Rasul v. Bush confirmed that captives in US jurisdiction did indeed have the right to access US courts. Rasul v. Bush determined that the Executive Branch did not have the authority, under the United States Constitution, to suspend the right for detainees to submit writs of habeas corpus.
Another consequence of the Supreme Court's ruling in Rasul v. Bush was the establishment of Combatant Status Review Tribunals to review and confirm the information that initially led each captive to be classified as an enemy combatant. The Department of Defense (DoD) convened these tribunals for every captive in Guantanamo Bay, but they did not apply to Bagram. The current legal process governing the status of Bagram captives is the Enemy Combatant Review Board, described by Eliza Griswold in The New Republic:
Prisoners don't even have the limited access to lawyers available to prisoners in Guantánamo. Nor do they have the right to Combatant Status Review Tribunals, which Guantánamo detainees won in the 2004 Supreme Court ruling in Hamdi v. Rumsfeld. Instead, if a combat commander chooses, he can convene an Enemy Combatant Review Board (ECRB), at which the detainee has no right to a personal advocate, no chance to speak in his own defense, and no opportunity to review the evidence against him. The detainee isn't even allowed to attend. And, thanks to such limited access to justice, many former detainees say they have no idea why they were either detained or released.
On February 20, 2009, the Department of Justice under President Barack Obama announced it would continue the policy that detainees in Afghanistan could not challenge their detention in US courts.
On April 2, 2009 US District Court Judge John D. Bates ruled that those Bagram captives who had been transferred from outside Afghanistan could use habeas corpus.
The BBC quoted Ramzi Kassem, lawyer for one of the men:
"Today, a US federal judge ruled that our government cannot simply kidnap people and hold them beyond the law."
The Obama administration appealed the ruling. A former Guantanamo Bay defense attorney, Neal Katyal, led the government's case.
The decision was reversed on May 21, 2010, the appeals court unanimously ruling that Bagram detainees have no right to habeas corpus hearings.
There is a reason we have never allowed enemy prisoners detained overseas in an active war zone to sue in federal court for their release. It simply makes no sense and would be the ultimate act of turning the war into a crime.
— Senator Lindsey Graham
Read more about this topic: Parwan Detention Facility
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