CommentarySahr MuhammedAlly [Senior Associate, Law and Security Program, Human Rights First]: "On January 20th, President-elect Barack Obama will inherit the responsibility for thousands of detainees being held by the United States in Afghanistan, Guantanamo Bay, and Iraq. Obama has already pledged to close Guantanamo, and the outgoing Bush Administration has entered into a Status of Forces Agreement (SOFA) with the Iraqi government, which contains provisions for handling the 15,000 remaining Iraqi detainees. (Most will be transferred to Iraqi custody for release or prosecution.) But the future for the 600 plus detainees held by the U.S. at Bagram Air Base in Afghanistan remains unclear.
The Bagram Detainees
In comparison to Guantanamo, the public knows little about Bagram. Following the U.S. invasion in Afghanistan in October 2001, Bagram Air Base became the central clearing house for captured detainees. In February 2002, the Bush Administration wrongly denied application of the Geneva Conventions to persons detained in Bagram and Guantanamo. Therefore, no proceedings were held by a "competent tribunal," as required by the Geneva Conventions, to determine the status of detainees. This was the first step in creating legal black holes in both Bagram and Guantanamo. Military and intelligence personnel sent many Afghans and suspected terrorists captured in Afghanistan, Pakistan and elsewhere to Guantanamo for detention and interrogation. Transfers from Bagram to Guantanamo, however, began to decline after the 2004 U.S. Supreme Court decisions in Rasul v. Bush and Hamdi v. Rumsfeld, which recognized limited rights of Guantanamo detainees to challenge their detentions in U.S. courts.
Like Guantanamo, the prison at Bagram is controlled by the United States. The government states that there are over 600 detainees at Bagram, but an exact number is unknown. Unlike Guantanamo, we don't know the nationalities of many of the detainees, why or how long they have been detained, and the circumstances of their capture. We also know little about the treatment they have received or conditions of confinement at the facility. We do know that at least some of the detainees were not captured on any battlefield, but were brought to Bagram from other countries without the benefit of any legal process. Under generally accepted interpretations of the law, this is known as the crime of kidnapping. Press accounts report that some were held by the CIA before being brought to Bagram. In 2002-2003, reports of detainee abuse, including of deaths of two detainees in Bagram, were widely disseminated. The International Committee of the Red Cross (ICRC) is the only entity allowed to visit Bagram. Neither the United Nations nor any international or Afghan human rights organizations can visit Bagram detainees.
There is no judicial process afforded to Bagram detainees. Afghan courts are unable to exercise jurisdiction over their own, or any other country's, nationals held by the U.S. military in Afghanistan. According to U.S. government court filings, a panel of three U.S. military officers – called an Unlawful Enemy Combatant Review Board (UECRB) – reviews a detainee's status usually within 75 days of being processed in Bagram and every six months thereafter, and recommends release or continued detention. Before April 2008, detainees were not even permitted to appear before the UECRB. There is no appeal from the UECRB determination. Detainees don't question government witnesses, nor can they call their own witnesses or receive guidance from an advocate.
Habeas for Bagram Detainees?
On January 7, 2009, in the Federal District Court of the District of Columbia, the International Justice Network, along with law clinics at Yale and Stanford Law Schools, attempted to shed light on some of the Bagram detainees they represent. The lawyers for the four petitioners allege that their clients were seized in Yemen, Pakistan, Thailand, and Tunisia, rendered to Bagram, and have been detained without charge for up to six years. The lawyers, who have never met their clients, were contacted by family members of the detainees. They argue that their clients should have the same rights as Guantanamo detainees to challenge their continued detention in federal court. Habeas rights were restored to Guantanamo detainees by the landmark U.S. Supreme Court decision in Boumediene v. Bush in June 2008.
The Bush Administration maintains that the Bagram detainees are enemy combatants and the United States can detain them indefinitely, without charge or access to lawyers, until the end of hostilities, whenever that may be. The Supreme Court has rejected this argument repeatedly in connection with Guantanamo detainees. (See SCOTUSblog for a description of the hearing and see Andy Worthington, Seven Years Of Guantánamo, And A Call For Justice At Bagram).
Current U.S. Policy
Unlike Guantanamo, which has a declining population, the population of Bagram is growing. The U.S. is building a larger, more permanent, facility to house over 1,000 detainees. The United States is the only military force that imprisons detainees in Bagram. European allies transfer persons to the Afghan government within 96 hours of capture.
The United States has released some Afghans through the National Peace and Reconciliation Committee. Others, defined by the Pentagon as "low level enemy combatants," have been transferred to Afghan custody for prosecution in the Afghan National Defense Facility (ANDF), built by the United States, in Pul-e-Charkhi prison in the outskirts of Kabul. (See Human Rights First, Arbitrary Justice: Trials of Bagram and Guantanamo Detainees in Afghanistan [PDF file]). While in ANDF, detainees are tried by Afghan authorities under Afghan national security law. I observed trials of former detainees at the ANDF. These trials fall far short of international or even Afghan fair trial standards. Nevertheless, while in Afghan custody, detainees are able to meet their families. The ICRC, the Afghan human rights commission, and the UN all have access to the detainees. President Karzai also has appointed a presidential review committee to evaluate allegations against detainees transferred from the United States and assess whether they should be prosecuted. The transfer to Afghan custody and use of the regular criminal justice system to adjudicate guilt or innocence, and ultimately the duration of continued detention, is a significant change from indefinite detention without judicial review in U.S. military custody.
The Way Forward
While a U.S. court is examining the reach of the writ of habeas corpus, the incoming Obama Administration should break with past policies and commit to the application of the rule of law to Bagram detainees. Bagram should not be allowed to remain a law-free zone.
Release or Transfer Detainees for Prosecution: In June 2002, the government of Hamid Karzai was elected, and the international armed conflict between the United States and the Taliban government ended. In an internal, non-international armed conflict, such as the present conflict in Afghanistan, persons can only be detained pursuant to domestic law. Thus, where appropriate, persons captured by Coalition Forces in Afghanistan after June 2002 should be treated as criminal suspects under Afghan law and transferred to Afghan authorities for prosecution. Some of these detainees can also be prosecuted in U.S. federal courts if suspected of having committed offenses against the United States. Those who cannot be prosecuted should be released. Detainees captured overseas and brought to Afghanistan should be repatriated, released, or transferred for criminal prosecution in their home country or in U.S. federal courts.
This will be a lengthy process, requiring on-going U.S. diligence. To reduce the risk of further abuses, it will be critical to immediately implement mechanisms to monitor post-transfer Afghan proceedings and to ensure that those transferred are not subjected to ill-treatment.
Assist with Judicial Reform: Fair trial and treatment of Bagram detainees transferred to Afghan authorities will require significant resources for training judges, prosecutors, lawyers, law enforcement agencies, and the development of court and prison infrastructure. The United States is one of the largest donors for justice sector reform in Afghanistan and, in coordination with European nations, should extend judicial reform efforts to improve the fairness of trials in Afghan courts for persons engaged in hostile actions against Afghan and Coalition Forces. The U.S. should provide more personnel and resources to Judge Advocate General (JAG) officers – the judicial arm of the U.S. military – in Afghanistan so they can assess and prepare evidentiary files for detainees and train soldiers on evidence collection as is done in Iraq. A serious contribution to the rule of law in Afghanistan could be a true lasting legacy of the United States.
End Practice of Bringing Detainees to Afghanistan: The Obama Administration must end the practice of transferring persons captured outside of Afghanistan to Bagram and detaining them until the "cessation of hostilities."
A prison such as Bagram created with an express purpose of avoiding compliance with the law is fundamentally at odds with American values. Strategically, it's also a mistake. Detaining a large number of prisoners indefinitely and without criminal charge is not the best way to win the "hearts and minds" and cooperation of the local population in Afghanistan. A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to reverse the policy mistakes of the Bush Administration. Bagram must not become Obama's Guantanamo."
