The Obama administration, in court briefs filed Monday, is asking judges not to give detainees at a prison at Bagram Air Base in Afghanistan the same right to challenge their detention that Guantanamo detainees have.
Human rights groups say the Bush administration made the same argument about detainees at Guantanamo Bay years ago.
Bagram's detainee population is growing. It holds roughly 600 men, some of whom were picked up on the battlefield in Afghanistan, others transferred to Bagram from as far away as Thailand.
Three of the detainees transferred to Bagram are represented by Tina Foster of the International Justice Network.
"The Obama administration is arguing that because our clients are being held at Bagram instead of Guantanamo, that they shouldn't be entitled to any rights," Foster says. "But the only reason that our clients are being held at Bagram is because the United States government brought them against their will to Afghanistan and brought them to Bagram."
A lower court judge gave Foster's clients access to American courts, but the Obama administration wants an appeals court to overturn that ruling.
Comparison To Guantanamo
At an American Bar Association breakfast last week, Pentagon lawyer Jeh Johnson said the comparison to Guantanamo is unfair.
"The Bagram population is a much more in-and-out population," he said. "There's more turnover in that population. Many of them are transferred to the government of Afghanistan. So the nature of the population is different."
Still, some prisoners at Bagram have been there six years.
Just before submitting this brief, the Obama administration said it would create a system of review to see who should be released from Bagram. Detainees will get a personal representative from the government, but not a lawyer. The detainees can call witnesses and see some evidence against them. This is more access than the detainees at Bagram had before.
But Foster of the International Justice Network says it's not very different from the access the Bush administration granted to Guantanamo detainees.
"It looks exactly the same as what's already been done and what's already failed, and what led President Bush to be embroiled in his entire second term over the legitimacy of the procedures that were being used at Guantanamo," Foster says.
Some conservatives are relieved to see the Obama administration adopt this position.
"I think we're seeing continuity in the national security area, which is frankly exactly what we should see between administrations," says Ken Wainstein, who ran the Justice Department's National Security Division under President Bush.
"We shouldn't have discontinuity every time a new administration comes in," Wainstein says. "So we're seeing that continuity. I think that's good for our counterterrorism efforts, and it's good for the country."
Neal Katyal, who became a legal superstar when he successfully argued the case of detainee Salim Hamdan before the Supreme Court, famously fought the Bush administration's rules at Guantanamo. Now he is on the other side of this argument.
The Hamdan ruling gave Guantanamo detainees greater court access than the Bush administration wanted. Now, Katyal works for the Obama Justice Department.
Several human rights lawyers said they are baffled to see his name on this brief arguing against the same court access for Bagram detainees. But some who know Katyal say he has always argued Bagram is different from Guantanamo.
"Neal believed very much in presidential powers and expanded ones," says Charles Swift, who was on Hamdan's legal team with Katyal. "He just believed President Bush had gone beyond the boundaries of presidential powers and had to be pulled back."
The question is whether President Obama has reached beyond those boundaries as well.