WASHINGTON - Four men being held as terror suspects at a U.S. military base in Afghanistan are asking a federal judge for the right to sue for their release -- a right already given to detainees at Guantanamo Bay.
A hearing Wednesday will test whether a 2008 Supreme Court decision -- allowing al Qaeda and Taliban suspects at the U.S. naval base in Cuba to challenge their detention -- should be extended to detainees held at other military prisons overseas.
The government argues that the detainees should have their cases heard by military tribunals.
"This court has no jurisdiction to review this," the Justice Department wrote in a Dec. 19 motion asking for the case to be dismissed.
It added, "Federal courts should not thrust themselves into the extraordinary role of reviewing the military's conduct of active hostilities overseas, second-guessing the military's determination as to which captured aliens as part of such hostilities should be detained, and in practical effect, superintending the executive's conduct in waging a war."
But lawyers for the four men in Wednesday's case in U.S. District Court say the Guantanamo standard needs to be applied to other prisons.
Otherwise, "a lot of the Guantanamo detainees could be transferred to Afghanistan - basically shifting the problem somewhere the government argues that they cannot challenge," said Kathleen Kelley of the International Human Rights Clinic at Stanford Law School, who is representing three of the four men.
"We are saying that's just not true," Kelley said Tuesday. "Detainees cannot be held without process indefinitely anywhere by the U.S. government."
More than 200 detainees are challenging their imprisonment at Guantanamo, where many have been held for years without being charged with a crime.
But more than 600 are being held at Bagram Air Base outside of Kabul, Afghanistan's capital. In Iraq, officials estimate thousands are imprisoned in U.S.-maintained detention centers.
The evidence against the four men at the heart of Wednesday's case is unknown, and many facts about how and whether they were initially swept up and imprisoned after the attacks of Sept. 11, 2001, have never been made clear. Their lawyers are largely relying on statements from the International Committee of the Red Cross and other detainees who have since been released to build their case for freedom.
Tina Foster of the International Justice Network said none of the four - two Yemeni, one Tunisian and one Afghan - were in Afghanistan at the time they were captured in 2002. At least two of them disappeared for several years, then turned up in Bagram, Foster said.
It's suspected they were held in secret prisons where they could be interrogated, Kelley said.
