Oral Arguments in Landmark Bagram Detainee Cases on Sep. 17, 2013



The appellate oral arguments in al-Maqaleh v. Obama are open to the public and will take place on Tuesday, September 17, 2013 at 9:30 a.m. in Courtroom 31 of the E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex of the U.S. Court of Appeals for the District of Columbia Circuit, 333 Constitution Ave., N.W., Washington, D.C. 20001.

September 12, 2013, New York, N.Y. -- The D.C. Circuit Court of Appeals  will hear oral arguments on Tuesday, September 17,  in litigation brought by the International Justice Network (IJN) and co-counsel on behalf of three non-Afghan citizens whom the U.S. government forcibly rendered to Afghanistan ten years ago, for indefinite imprisonment at Bagram Air Base without charge or trial.  The case is  named al-Maqaleh, et al., v. Obama, and asks whether the U.S. government can continue to use Bagram as the “other Guantánamo” to imprison individuals indefinitely in U.S. custody without access to legal counsel or courts.

The three petitioners in the case are Fadi al-Maqaleh, Amin al-Bakri, and Redha al-Najar.  Each man has filed a petition for a writ of habeas corpus, seeking to challenge the legality of his prolonged arbitrary imprisonment without trial in Afghanistan.

IJN initially filed the case on behalf of Mr. al-Maqaleh in 2006 -- the first legal challenge of its kind on behalf of a Bagram prisoner.   Mr. al-Maqaleh is a 31-year-old Yemeni  citizen who was transferred in approximately 2004 from the notorious Abu Ghraib prison in Iraq to Bagram, where he has been unjustly held ever since.

In 2008, IJN and co-counsel filed similar habeas petitions on behalf of Mr. al- Bakri and Mr. al-Najar.

Mr. al-Bakri  is a 44-year-old Yemeni father of three, who was disappeared while on a routine business trip to Thailand, tortured at secret CIA “black sites,” and then forcibly rendered to Bagram in approximately 2003.  IJN co-counsel, Main Street Legal Services, the legal clinic of the City University of New York School of Law, is lead counsel on Mr. al-Bakri’s case.

Mr. al-Najar  is a 47-year-old Tunisian who was abducted from his home in Pakistan, where he was living with his wife and small child.  He was initially detained and tortured at secret CIA “black sites,” before being forcibly rendered to Bagram in approximately 2003.  The Law Office of Sylvia Royce is lead counsel on Mr. al-Najar’s case.

Despite being cleared for release by a U.S. military “Detainee Review Board,” all three men continue to languish at Bagram.

In 2009, the cases were consolidated before Judge John D. Bates in the D.C. District Court.  Judge Bates found that each man had the right to challenge his detention in U.S. courts.  However, the Obama administration appealed the decision to the D.C. Circuit Court of Appeals -- which overturned Judge Bates’ ruling in May 2010.

By February 2011, the cases made their way back to Judge Bates on the basis of new evidence that was not yet on the record when the Court of Appeals issued its 2010 ruling.    In response to the government’s request to dismiss the cases, however, Judge Bates ruled in October 2012 that the new evidence presented by the Maqaleh petitioners was not enough to overcome the Court of Appeals’ prior reasoning that U.S . courts lacked jurisdiction over the cases.

The Maqaleh petitioners subsequently appealed the dismissals, and the cases are now before the D.C. Circuit Court of Appeals for the second time.

You can read the Maqaleh petitioners’ opening appellate brief here, the government’s brief here, and the Maqaleh petitioners’ reply brief here.

Since 2006, IJN has been advocating for the legal rights of Bagram prisoners.  You can learn more about IJN’s work here.


Mahdis Keshavarz



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Washington Post: in Afghanistan, a second Guantánamo
By Kevin Sieff - Washington Post - Published online on August 4, 2013

KABUL — Of all the challenges the United States faces as it winds down the Afghanistan war, the most difficult might be closing the prison nicknamed “The Second Guantanamo.”

The United States holds 67 non-Afghan prisoners there, including some described as hardened al-Qaeda operatives seized from around the world in the months after the Sept. 11, 2001, attacks. More than a decade later, they’re still kept in the shadowy facility at Bagram air base outside Kabul.

Washington Post: Strong American Role Still Exists at Afghan-Controlled Prison
By Kevin Sieff - Washington Post - Published online on March 29, 2013

BAGRAM, Afghanistan — Days after the Parwan detention center was ceremoniously transferred to Afghan control, its courtroom was full of American bailiffs, American advisers and American attorneys.

The facility itself — renamed the Afghan National Detention Facility — is on one of the country’s most fortified American bases. When an Afghan defense attorney and prosecutor this week began arguing the case of Abdul Shakor, an alleged Taliban commander detained since 2009, all of the available evidence came from American forces.

The detention center has come to symbolize President Hamid Karzai’s increasingly emphatic vows to secure Afghan sovereignty. But while the formal handover transferred all prisoners to Afghan custody, it has hardly produced a stand-alone Afghan justice system to try them. Afghanistan has retained a controversial American practice that will keep about three dozen detainees imprisoned without trial. Even the court’s top judges and attorney say they remain dependent on foreign assistance to operate.

“Without the coalition, there is no way this court can survive,” said one of the court’s top judges, Hayatullah. “Afghan forces cannot even transport the detainees here for their trials.”

As the 2014 withdrawal of most U.S. troops approaches, the court is just one example of several vital but fragile Afghan institutions, including hospitals and the fledgling army, that might struggle or even collapse without American support. If Afghanistan cannot provide social services and good governance, not to mention courts that provide fair trials and keep dangerous militants behind bars, there are real worries here that security could unravel. Already, the Afghan court at Parwan releases more than one in four defendants it tries.

The U.S. military and State Department are rushing to transform the Parwan population, composed of battlefield prisoners captured by U.S. forces and held under international law, into Afghan criminal defendants. More than 3,000 U.S. detainees, some held without trial for years, had already been transferred to Afghan custody before this week’s agreement added a final 700, including 30 to 40 the United States considers “enduring security threats” ineligible for either trial or release.

Karzai’s government had refused to guarantee it would not release the high-threat prisoners, dismissing U.S. concerns that they would return to the battlefield and arguing that there was no provision in Afghan law to hold them without trial. Last week’s agreement came only after the Pentagon agreed to accept what it called “private assurances” from Afghanistan that they would remain in custody, at least until the U.S. combat withdrawal.

Both sides said the agreement, which they declined to release publicly, provided for bilateral “consultation” when they disagreed about a potential release. That is criticized by some Afghan judicial officials and human rights attorneys, who say detention without trial deprives suspects of a fair trial.

“It’s totally anathema to rule of law,” said Tina M. Foster of the nonprofit International Justice Network. “It used to be that the Afghan public was afraid to be sent to (Parwan) because they would never see the light of day. Now, it’s just an Afghan version of the same thing.”

To construct a workable court system for the detainees, the Americans have built a massive judicial complex — complete with appellate and juvenile courts — and supply everything from printer paper to evidence. Here, Hayatullah and his Afghan colleagues are forging their own justice system and will now decide the fate of thousands of suspected insurgents.

“Though we would like to say we are not involved, we are still intertwined,” Lt. Kevin Corrigan, a U.S. legal adviser at the court, said this week.

A delicate relationship

Shakor’s case highlighted the problems of the ongoing transition, as well as an American presence that has sparked a mix of resentment and begrudging acceptance among Afghans.

Shakor was detained in Logar Province in 2009 by U.S. troops whose intelligence led them to believe he was a Taliban commander. But the Americans considered much of that information classified and would not release it to Afghan attorneys and judges.

Instead, they provided only photos of the weapons in the house where Shakor was apprehended — which he claimed belonged to a friend — and a written description of lab tests confirming that explosive material was found on his body. All other physical evidence had been destroyed or discarded, and there were no witnesses. Afghan officials say prospective witnesses regularly refuse to attend court proceedings at a U.S. military base.

The defense attorney, Karimullah Karimi, spoke angrily in the courtroom filled with U.S. officials.

“Why are we trusting the coalition forces’ report and information?” he said. “These reports are not evidence according to Afghan law.”

That has been a common defense in the Afghan trials at Parwan. Since it launched nearly three years ago with a handful of proceedings, the court has grown exponentially to about 250 trials each month.

In some cases, the argument is effective. U.S. and coalition troops on the battlefield have neither the time nor the training to collect evidence that is admissable in court, a senior U.S. administration official said. Much of what goes into their decision to detain suspects stems from intelligence they are unwilling to turn over to the Afghans.

Because of Afghan concerns about the character of U.S. evidence, which typically consists of written reports and photographs, many detainees are acquitted who would have remained in custody under the U.S. detainee review board. About 27 percent of suspects tried here are acquitted.

“The judges often don’t think there is adequate physical evidence,” said Lt. Col. David Cline, a U.S. legal adviser at the court.

Already, the Afghan court has released some detainees who have returned to the insurgency, according to Afghan officials.

“All the physical evidence gathered by the coalition should be used in the court. If we don’t have the evidence, we can’t use it to convict,” Hayatullah said.

Shakor, a thick man with a bushy gray beard, had been held without trial for three years. He was guided last week to the courtroom wearing opaque goggles. When a member of the three-judge panel asked him to stand up and “tell us the whole story,” Shakor rose, his feet and hands still shackled.

“When coalition forces conducted the operation, they took materials from everywhere and they blamed me,” Shakor said. “I’m not a Talib. You can ask anyone.”

His attorney then presented a document signed by dozens of members of Shakor’s district claiming he was innocent.

Moving forward

As always, Hayatullah had to weigh the validity of a popular argument founded on skepticism of NATO forces with the seemingly damning information in the coalition’s report — and he had to do so while a room full of U.S. officials, including his personal adviser, watched.

He and two other judges left the court to deliberate. When they returned, Shakor stood again.

The judges told him that he was found guilty of participating in the insurgency but not attempted murder or murder. That meant Shakor would receive only a three-year sentence, which he had already served while awaiting trial. He would be released, despite the implication in the military report that he had been involved in the manufacture or placement of improvised explosive devices.

The American advisers and attorneys in the room were not surprised. Given the quality of the evidence, the ruling was standard in the Afghan court.

As long as U.S. forces are participating in targeted operations, evidence will continue coming from U.S. troops. The American legal advisory role is expected to continue as well.

It will remain up to Afghan judges to decide how to craft their own rulings in a court where the Western presence far from disappeared when the justice system officially became Afghan-owned.

“The opportunity to hold these trials is all because of the coalition forces,” Hayatullah said. “I told [the head of the prison] — we need to be able to do the same job as the coalition.”


Karen DeYoung in Washington contributed to this report.

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