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Judge: Prisoners of U.S. in Afghanistan can't sue

Non-Afghan prisoners held by the U.S. military in Afghanistan cannot seek their freedom in U.S. courts, a federal judge reaffirmed in a ruling Friday.

U.S. District Judge John Bates rejected arguments by lawyers for so-called third-country nationals that new circumstances and evidence about their detention at the Bagram Air Base near Kabul merited allowing them to pursue habeas corpus petitions in American courts.

"Petitioners must resort to the argument that the transfer of some detainees to the Afghan government makes it less likely that other detainees will someday be transferred, even though the United States continues to reaffirm its goal of transferring custody of all detainees. But as a matter of logic, petitioners' argument makes little sense. Indeed, one could convincingly argue that the opposite is true," Bates wrote in his 24-page decision (posted here).

In April 2009, Bates issued a landmark ruling that non-Afghan prisoners captured outside the country and taken to Bagram had the right to pursue habeas cases in U.S. courts. In May 2010, the U.S. Court of Appeals for the D.C. Circuit overturned his decision, but left open the door to further proceedings if circumstances changed.

In his ruling Friday, Bates also labeled as "largely cumulative of evidence previously submitted" declarations from former government officials arguing that the foreign prisoners were likely moved to Afghanistan to evade judicial review.

The Obama administration has fought hard against allowing prisoners at Bagram to pursue the same kind of habeas cases Guantanamo prisoners can, despite President Barack Obama's statements during the 2008 campaign decrying the Bush administration for using Guantanamo as a "legal black hole." The Obama administration has set up Detainee Review Boards in Afghanistan which the administration insists are more robust than the administrative procedures the Bush administration used for Guantanamo before the Supreme Court ruled that prisoners there have habeas rights.

Afghans held by the U.S. at Bagram also cannot sue in U.S. courts, but that issue has been less disputed because of legal precedent saying the courts should stay out of that issue, at least as long as U.S. forces are in combat in Afghanistan against the Taliban. Control of the Parwan detention facility at Bagram was partially transferred to the Afghan government in September, but both Afghan and third-country prisoners have remained under U.S. control.

A deal to handover the prison that was key to Obama'a May visit to Afghanistan, but has since been thrown into doubt by a series of disagreements between the U.S. and Afghan authorities.