Is Bagram Obama's New Secret Prison?

On Monday, one day after the New York Times and the Washington Post
reported that the Obama administration was planning to introduce
tribunals for the prisoners held in the US prison at Bagram airbase,
Afghanistan, the reason for the specifically-timed leaks that led to
the publication of the stories became clear.

The government was hoping that offering tribunals to evaluate the
prisoners' status would perform a useful PR function, making the
administration appear to be granting important rights to the 600 or so
prisoners held in Bagram, and distracting attention from the real
reason for its purported generosity: a 76-page brief to the Court of
Appeals for the District of Columbia (PDF),
submitted yesterday, in which the government attempted to claim that
"Habeas rights under the United States Constitution do not extend to
enemy aliens detained in the active war zone at Bagram Airfield in
Afghanistan."

The main reason for this brazen attempt to secure a PR victory
before the appeal was filed is blindingly obvious to anyone who has
been studying the Bagram litigation over the last five months. In
April, Judge John D. Bates ruled
that three foreign prisoners seized in other countries and "rendered"
to Bagram, where they have been held for up to six years, had the right
to challenge the basis of their detention in US courts.

Below, I discuss the government's position regarding these men, and
explain why introducing Guantanamo-style tribunals at Bagram is no
substitute for the Geneva Conventions, and at the end of the article I
also ask whether the government may not have an even darker motive,
related to what I perceive to be comments from administration officials
revealing Bagram's ongoing use as a secret prison for foreign suspects
"rendered" from other countries.

Why bringing Guantanamo to Bagram is intended to exclude the US courts

Despite fierce opposition from Obama's Justice Department, which
clung to the line taken by the Bush administration, Judge Bates ruled
in April that Boumediene v. Bush
- the Supreme Court ruling last June, which granted constitutionally
guaranteed habeas corpus rights to the prisoners in Guantanamo -
extended to foreign prisoners "rendered" to Bagram, because "the
detainees themselves as well as the rationale for detention are
essentially the same." He added that, although Bagram is "located in an
active theater of war," and that this may pose some "practical
obstacles" to a court review of their cases, these obstacles "are not
as great" as the government suggested, are "not insurmountable," and
are, moreover, "largely of the Executive's choosing," because the
prisoners were specifically transported to Bagram from other locations.

Judge Bates was undoubtedly correct, for two reasons: firstly,
because, as I explained at the time, "only an administrative accident -
or some as yet unknown decision that involved keeping a handful of
foreign prisoners in Bagram, instead of sending them all to Guantanamo
- prevented them from joining the 779 men in the offshore prison in
Cuba"; and secondly, because he refused to extend habeas rights
to an Afghan prisoner "rendered" to Bagram from the United Arab
Emirates in 2002 - and, by extension, to the rest of the Afghans in
Bagram, seized in Afghanistan, who constitute all but 30 or so of the
650 men held in the prison - primarily because he agreed with the
government's claim that to do so would cause "friction" with the Afghan
government regarding negotiations about the transfer of Afghan
prisoners to the custody of their own government.

Reinforcing its hopes that offering tribunals to the prisoners would
deflect attention from its desire to keep holding "rendered" prisoners
at Bagram indefinitely, the government included an Addendum with its
brief on Monday, outlining its plans for the new tribunal system. This
is designed to replace an existing review system, which, in the words
of Judge Bates, "falls well short of what the Supreme Court found
inadequate at Guantanamo" in Boumediene, being both "inadequate" and
"more error-prone" than the notoriously inadequate and error-prone
system of Combatant Status Review Tribunals (CSRTs) that was
established at Guantanamo to review the prisoners' cases.

Reporters have been quick to spot that the new review system - far
from providing an adequate system that would, presumably, satisfy the
Supreme Court - is, in fact, little more than a carbon-copy of the
CSRTs, which were severely criticized by the Supreme Court in Boumediene, and which were also savaged by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on them, who explained, in a series of explosive statements
in 2007, that they were designed primarily to rubberstamp the
administration's insistence that the men were "enemy combatants," even
though they had not been adequately screened on capture.

What has happened to the Geneva Conventions?

This omission of screening on capture - which has applied at Bagram
ever since - came about because, under instructions from the highest
levels of government, the military was obliged to shelve its plans to
hold competent tribunals under Article 5 of the Geneva Conventions,
despite the fact that they had been pioneered by the US, and had been
used successfully in every war from Vietnam onwards. Held close to the
time and place of capture, these tribunals (as opposed to the CSRTs,
which mockingly echoed them), comprise three military officers, and
were designed to separate combatants from civilians seized in the fog
of war, in cases where it is not obvious that prisoners are combatants
(when they are not wearing a uniform, for example), by allowing the men
in question to call witnesses.

During the first Gulf War, around 1,200 of these tribunals were
held, and in nearly three-quarters of the case, the men were found to
have been wrongly detained, and were released. The failure to implement these tribunals
in the "War on Terror" contributed enormously to the filling of
Guantanamo with prisoners who had no connections to any form of
militancy whatsoever, and these initial errors were not redressed when
a skewed version of the tribunals - the CSRT system - was introduced
two and half years later.

As a result, plans to introduce Guantanamo-style tribunals to Bagram
- in which prisoners are assigned military representatives instead of
lawyers, and may call witnesses and present evidence if "reasonably
available" - may be an improvement on the existing system of Unlawful
Enemy Combatant Review Boards at Bagram - in which the prisoners have
no representation whatsoever, and are only allowed to make a statement before
they hear the evidence against them - but it fails to take into account
the fact that non-uniformed prisoners seized in wartime, like those at
Bagram, should, under the terms of the Geneva Conventions, be given
competent tribunals on capture, and then, if found to be combatants,
held unmolested until the end of hostilities.

Despite being addressed in the DoD's new proposals, these concerns
are not mitigated by the fact that, according to these plans, new
prisoners will be subjected, on capture, to cursory reviews by "the
capturing unit commander" and by the commander of Bagram to ascertain
that they "meet the criteria for detention," and the problem is
underlined by the DoD's insistence that it is not merely holding
prisoners "consistent with the laws and customs of war," but also
holding those who fulfill the criteria laid down in the Authorization for Use of Military Force
(the founding document of the "War on Terror," approved by Congress
within days of the 9/11 attacks), which authorized the President to
detain those who "planned, authorized, committed or aided the terrorist
attacks that occurred on September 11, 2001," or those who supported
them.

So is Bagram Obama's new secret prison?

However, while this is a genuinely disturbing development, because
it suggests that the Obama administration is essentially following
President Bush's lead by unilaterally rewriting the Conventions,
presumably to allow it to continue exploiting prisoners of war for
their supposed intelligence value (even though the DoD explained, in
its proposal, that "intelligence value, by itself, is not a basis for
internment"), only one major media outlet - the New Yorker - has picked up on a disturbing disclosure in the Times' coverage of the story on Sunday. I reported this in an article yesterday, when I explained that there was something deeply suspicious about the officials' statement that:

the importance of Bagram as a holding site for terrorism
suspects captured outside Afghanistan and Iraq has risen under the
Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention.

As I explained yesterday, this "seems to confirm, in one short
sentence, that, although the CIA's secret prisons have been closed
down, as ordered by President Obama, a shadowy 'rendition' project is
still taking place, with an unknown number of prisoners being
transferred to Bagram instead."

In a blog post for the New Yorker, Amy Davidson also picked up on the statement, calling it a sentence "that doesn't make much sense," and then asked:

So closing Guantanamo increases the need for a new
Guantanamo, and barring the use of secret prisons just means that you
need to find a new place to stash secret prisoners? Have we had it with
Guantanamo because it's unfashionable - like a played-out spring-break
destination, now overrun with journalists and human-rights lawyers
hopping on planes in Florida - or because we actually don't like
extrajudicial, indefinite detention?

While I await further developments, I recall that, back in April, CIA director Leon Panetta explained
that, although the CIA "no longer operates detention facilities or
black sites and has proposed a plan to decommission the remaining
sites," the agency "retains the authority to detain individuals on a
short-term transitory basis." Panetta added that, although no
detentions had occurred since he became director, "We anticipate that
we would quickly turn over any person in our custody to US military
authorities or to their country of jurisdiction, depending on the
situation."

Is this what is happening now at Bagram? Shortly after Panetta made his comments, I noted
that "the only logical conclusion" I could draw was that, "essentially,
the Obama administration's only real problem with 'extraordinary
rendition' is one of scale. The Bush administration's industrial-scale
rendition policies have been banished, but the prospect of limited
rendition - to third countries rather than to the US court system, as
would surely be more acceptable - is being kept as a possible option."

Whether hidden transfers to third countries are taking place is unknown, but from my reading of the officials' comments to the Times,
I infer that the CIA is now handing suspects over to the US military,
including those captured outside Afghanistan, and that this is the
reason, above all, that the government is anxious to prevent the US
courts from having access to foreign prisoners in Bagram.

Moreover, as with the Bush administration, the indications are that
this process focuses solely on the gathering of "actionable
intelligence" - or with "decommissioning" suspects - and that those
responsible for implementing it have, yet again, chosen to ignore the
fact that terrorism is a crime, prosecutable in the US courts, and not
an act of war requiring secret prisons and extra-legal detention,
however much it may be dressed up in review procedures that include
only the following "[p]ossible recommendations" for what will happen to
those prisoners who "meet the criteria for internment": "continued
internment" in Bagram, transfer to the Afghan authorities for
prosecution, transfer to the Afghan authorities "for participation in a
reconciliation program," and, in the cases of "non Afghan and non-US
third-country national[s]," options "that may also include transfer to
a third country for criminal prosecution, participation in a
reconciliation program, or release." What, I wonder, are the options
that were not included?

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