STANFORD, Calif., April 2, 2009—Today U.S. District Court Judge John D. Bates ruled that detainees held in the prison at the U.S. Air Base in Bagram, Afghanistan have the right to challenge the legality of their detention before a federal judge in a U.S. court, based on the precedent set by Boumediene v. Bush (2008) that enables Guantánamo detainees to seek the protection of the writ of habeas corpus.

Four separate challenges had been filed in federal court on behalf of foreign nationals who were seized outside of Afghanistan, transported to the U.S.-controlled facility at Bagram, and held for more than six years without charges. Three of the four men are being represented by the International Human Rights Clinic of Stanford Law School’s Mills Legal Clinic, acting as co-counsel with the International Justice Network (IJN): Redha Al Najar, Fadi Al Maqaleh, and Haji Wazir. The fourth, Amin Al Bakri, is being represented by Yale Law School’s Post-9/11 Clinic in conjunction with the IJN. The four petitioners had asked the District Court to use its authority to compel the United States military to afford them the due process rights under domestic U.S. law and international law, and to release those individuals for whom no basis exists for further detention.

Specifically, the Court ruled that habeas corpus review is available to three of the four: Al Najar, Al Maqaleh, and Al Bakri. Judge Bates is requiring further briefing in the case of Haji Wazir, who is the only Afghan citizen among the petitioners. The government’s brief is due April 23, 2009 and the petitioner Wazir’s brief is due May 7, 2009.

“This Court’s decision means that wherever the U.S. as a government brings its military force in the service of the country, the writ of habeas corpus must apply,” said lead counsel, Barbara Olshansky, a visiting professor who directs the International Human Rights Clinic at Stanford Law School and who is litigation director for the IJN. “This is our constitutional law and it is international law, and it must be followed.”

The Court’s ruling today applied “Boumediene factors carefully” and concluded that “these petitioners are virtually identical to the detainees in Boumediene—they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be “enemy combatants,” a status they contest. …Although the site of detention at Bagram is not identical to that at Guantánamo Bay, the ‘objective degree of control’ asserted by the United States there is not appreciably different than a Guantánamo.” The Court’s ruling also specified that “practical obstacles” are in some ways greater for Bagram detainees, because its location in an “active theater of war” make it more challenging to hold a hearing, but these obstacles are not insurmountable.

“The Court’s extension of the Boumediene factors to detainees at Bagram Prison in Afghanistan is proof that the U.S. Government cannot hold individuals in a black hole for seven years with no charge, no representation, no trial or any opportunity to present evidence to rebut the evidence against them,” said counsel Kathleen Kelly, a clinical teaching fellow with the International Human Rights Clinic at Stanford Law School. “The Court has affirmed that to do so is contrary to the fundamental principles of our Constitution.”

About Barbara Olshansky

Barbara Olshansky, a leading voice in international human rights and humanitarian law, is the Leah Kaplan Visiting Professor in Human Rights. She joined Stanford in 2007 to teach international law and to establish and direct the International Human Rights Clinic’s in-country clinical program in Namibia. Professor Olshansky is known for her groundbreaking work on the 2004 case Rasul v. Bush, in which the Supreme Court of the United States overruled a lower court ruling and found that American courts have jurisdiction over claims regarding the legality of detention brought by Guantánamo detainees who are foreign nationals. She is also the author of several books, including Democracy Detained: Secret, Unconstitutional Practices in the U.S. War on Terror and The Case for Impeachment, and Secret Trials and Executions.

About Kathleen Kelly

Kathleen A. Kelly is a clinical teaching fellow at the law school’s International Human Rights Clinic, where she is helping to launch the Stanford Law School International Human Rights Clinic on Humanitarian Law, which focuses on representing detainees in Bagram Prison in Afghanistan. She is counsel on three of the four habeas cases pending before the D.C. District Court on behalf of Bagram detainees, Wazir v. Gates, and Al Najar v. Gates.

About the Mills Legal Clinic

Stanford Law School offers a variety of clinics that litigate in specialized fields, including environmental protection, immigrants’ rights, community law, cyberlaw, educational advocacy, and international human rights. The clinics provide pro bono representation and operate cohesively as a single law firm, the Mills Legal Clinic of Stanford Law School. The Mills Legal Clinic provides students an opportunity to apply classroom theory to real client situations and to develop a lifelong commitment to public service values.

About the International Human Rights Clinic

The International Humans Rights Clinic provides students with the opportunity to travel to Africa to engage in cutting-edge work in the area of international human rights and the development of the rule of law.

Most recently, the program has focused its work on Namibia. Students spent the winter quarter at Stanford Law with clinic faculty studying the historical, cultural, and legal context of Namibia, and conducting outreach to Namibian leaders. In the spring, the students and faculty traveled to Namibia to work with their clients on their projects. The students drafted anti-torture statutes, collaborated with agencies providing services to AIDS patients, worked with the judiciary on creating methods of disseminating precedents and worked with indigenous populations to memorialize their legal rules. In past years, students have worked with a Ghanaian organization interviewing scores of detainees in police detention centers, calling attention to individual cases and helping to create a framework for more general challenges to the conditions of confinement. Other students have worked with lawyers and community groups furthering human rights in areas such as the right to healthcare.

The Clinic is expanding its work to address national security measures and compliance with international law mandates in “war on terror” detentions. Students will be able to advocate on behalf of detainees held by, or at the request of, the United States in prisons and detention camps in places such as Guantánamo, Afghanistan, Iraq, Morocco, and Ethiopia, and help to develop and lobby for new policy framework that is consistent with long-standing international human rights and international humanitarian law.

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching.

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