The Road From Gitmo

Fadi al-Maqaleh disappeared from his family's home in Sana'a, Yemen, in 2002. His relatives did not learn of his whereabouts until a year later, when they received a letter informing them that he was being held as an enemy combatant in a U.S. military prison at Bagram Airfield in Afghanistan. U.S. officials say al-Maqaleh, now 25, was taken into custody in southern Afghanistan, but his lawyer insists he was neither in Afghanistan nor captured by U.S. military forces. She believes he may have been flown to Abu Ghraib in Iraq before reaching Bagram, but, because she has never met her client, she can't ask him about it herself. Beyond those skeletal facts, al-Maqaleh, like most of the other 630 prisoners at Bagram, is a shadow.

"The government's argument is that [Bagram] is just a battlefield detention center; it's really not. It's just like Guantánamo—someplace where you bring people to interrogate them outside of the law," says the lawyer, Tina Foster, of the International Justice Network.

The way the U.S. government handles suspects in the war on terror is changing, and with it, perhaps, the fate of al-Maqaleh and hundreds of others like him. The Supreme Court's June 12 rulings in Boumediene v. Bush and Muaf v. Geren affirmed the constitutional rights of those held at Guantánamo Bay and U.S. citizens in Iraq to challenge their detention in U.S. civilian courts. Since those rulings, lawyers for detainees have submitted about 200 habeas petitions in D.C. district court, seeking a better venue for their clients than the system the Bush administration set up at Gitmo. And on Monday, the first civilian review of a Guantánamo case delivered yet another blow to the Bush team, overturning the Pentagon's assessment of one prisoner and ordering that he be either charged, transferred or released.

The rulings were a defeat for the Bush administration, which had stripped federal courts of jurisdiction over detainees' efforts to challenge their imprisonment in the Military Commissions Act of 2006. The president expressed his disagreement with the court's decisions, and lawyers for the administration are weighing their options, hoping to find a way to continue to keep the detainees out of federal court. But they are mindful of the fact that Boumediene could well establish a precedent that may affect prisoners at Bagram and in other facilities around the world where the government is holding enemy combatants. "[Our] interpretation that this decision applied only to those detainees at Guantánamo will not stop challenges from elsewhere. We would disagree with them, I think the court would disagree with them, but as we're learning, the court can be unpredictable," said one White House official, who requested anonymity when discussing sensitive legal matters.

Both John McCain and Barack Obama have made it clear that the military commissions at Gitmo will not survive long past the inaugural ceremonies on Jan. 20, 2009. But what then? Neither candidate has yet clarified precisely what sort of system they would put in the place of the commissions. Meanwhile, critics are keeping a wary eye on how the administration proceeds in places such as Bagram.