US Battles Iraq and Afghanistan over Detention Without Charges

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The Guardian

US Battles Iraq and Afghanistan over Detention Without Charges

The Obama administration fights to spread its own values on the core, fundamental right of due process

For several decades, the US government - in annual "human rights" reports issued by the State Department (reports mandated by the US Congress) - has formally condemned nations around the globe for the practice of indefinite detention: imprisoning people without charges or any fixed sentence. These reports, said Secretary of State Hillary Clinton in her preface to last year's document, are grounded in the principle that "respect for human rights is not a western construct or a uniquely American ideal; it is the foundation for peace and stability everywhere." That 2011 report condemned numerous nations for indefinite detention, including Libya ("abuse and lack of review in detention"), Uzbekistan ("arbitrary arrest and detention"), Syria ("arbitrary arrest and detention"), and Iran ("Authorities held detainees, at times incommunicado, often for weeks or months without charge or trial").

In Afghanistan and Iraq, the US government is engaged in a fierce and protracted battle over the fundamental right to be free of indefinite detention. Specifically, the US is demanding that the governments of those two nations cease extending this right to their citizens. As a Washington Post article this morning details, Afghan President Hamid Karzai is insisting that the US fulfill its commitment to turn over all prisons, including the notorious facility at Bagram, to Afghan control, but here is one major impediment [emphasis added]:


"Afghan and U.S. officials have also disagreed on the issue of detention without trial. Washington wants the Afghan government to continue holding certain prisoners it views as dangerous, even if there is not enough evidence to try them.

"Aimal Faizi, the chief spokesman for Karzai, told reporters Monday that detention without trial is illegal in Afghanistan and that more than 50 Afghans are still being held in U.S. custody at Bagram, 35 miles northeast of Kabul, even though they have been ordered released by Afghan courts."

The US has long been demanding that the Afghan government continue the American practice of indefinite detention without charges, and still presses this demand even after the top Afghan court in September ruled that such detentions violate Afghan law. Human rights workers in Afghanistan have long pointed out that America's practice of imprisoning Afghans without charges is a major source of anti-American sentiment in the country. In a 2009 interview, Jonathan Horowitz of the Open Society Institute told me: "The majority of the people who I have spoken to cite the way that the US captures and detains people as their main complaint against the US, second only to civilian casualties."

This US-Afghan battle over basic due process has extended beyond detention policies. In 2009, the Obama administration's plan to assassinate certain Afghan citizens it suspected of being "drug kingpins" - with no charges, trial or any other due process - sparked intense objections from Afghan officials. Those officials tried to teach Obama officials such precepts as: "There is a constitutional problem here. A person is innocent unless proven guilty," and: "if you go off to kill or capture them, how do you prove that they are really guilty in terms of legal process?", and: "[The Americans] should respect our law, our constitution and our legal codes. We have a commitment to arrest these people on our own."

Meanwhile, in Iraq, the government's release last week of Ali Musa Daqduq, a Hezbollah operative accused of killing five US troops in 2007, has infuriated Americans from across the ideological spectrum, including conservative senators and progressive writers. Let's leave aside the bizarre spectacle of Americans, of all people, righteously demanding that other people be held accountable for violence committed in Iraq when not a single American political or military official has been (i.e, those who initiated one of the worst aggressive wars of this generation), and when even private contractors from Blackwater were fully immunized for their wanton acts of violence against Iraqi civilians. Let's further leave aside the equally warped American belief that those who kill US soldiers who are part of an invading and occupying army are "terrorists". Consider the reason that Daqduq was released:

"In a phone call on Tuesday, Vice President Joseph R. Biden Jr. told the Iraqi prime minister, Nuri Kamal al-Maliki, that the United States believed that Mr. Daqduq should be held accountable for his actions and that Iraq should explore all legal options toward this end, an American official said. . . .

"But Mr. Maliki told Mr. Biden that Iraq had run out of legal options to hold Mr. Daqduq, who this year had been ordered released by an Iraqi court. . . . Iraqi officials have said that they thought delaying Mr. Daqduq's release until after the American presidential election would mollify the Obama administration. American officials have repeatedly insisted that they did not want him released at all . . . .

"After Mr. Daqduq was transferred to Iraqi custody, an Iraqi court ruled that there was not enough evidence to hold him."

US efforts to persuade the Iraqi government to transfer him to US custody for "trial" in a US "military commission" - where he would likely be detained either at Guantanamo or a specially created military brig in South Carolina - were previously rejected by the Iraqis on the ground that they have sovereignty over acts committed in Iraq and would honor the decisions of their courts. US claims that the release of Daqduq is the by-product of Iraqi closeness to the Iranians (rather than respect for due process) may well be accurate, but that does not make ongoing imprisonment in defiance of a court finding any more justified.

As is true in Afghanistan, this battle over basic due process rights has a long history over the course of the US occupation of Iraq. In 2008, the US refused to release imprisoned Reuters photojournalist Ibrahim Jassam despite a ruling from an Iraqi court many months earlier that there was no evidence to justify his detention and that his release was therefore compelled. For two years, the US imprisoned AP journalist Bilal Hussein, an Iraqi citizen, without charges of any kind until a four-judge Iraqi judicial panel found his detention in violation of the law and ordered him immediately released.

It is ironic indeed that the US is demanding that the practice of due-process-free indefinite detention be continued in Afghanistan and Iraq, two countries it invaded and then occupied while claiming it wanted to bring freedom and democracy there. But on one level, this is the only outcome that makes sense, as a denial of basic due process is now a core, defining US policy in general.

The Obama administration not only continues to imprison people without charges of any kind, but intended from the start to do so even if their plan to relocate Guantanamo onto US soil had not been thwarted by Congress. At the end of 2011, President Obama signed into law the National Defense Authorization Act which codifies the power of indefinite detention even for US citizens, and - after an Obama-appointed federal judge struck it down as unconstitutional - continues vigorously to fight for that law. And, of course, the power to assassinate even its own citizens without a whiff of due process or transparency - the policy that so upset Afghan officials when it was proposed for their country - is a crowning achievement of the Obama legacy.

It's hardly unusual, of course, for the US government self-righteously to impose principles on the world which it so flamboyantly violates. Indeed, such behavior is so common as to barely be worth noting.

Just this week, President Obama managed with a straight face to defend Israel's attacks on Gaza with this decree: "there's no country on Earth that would tolerate missiles raining down on its citizens from outside its borders." As Liliana Segura, Jemima Khan and Reason's Mike Riggs all quickly noted, this pronouncement came from the same man who has continuously rained down missiles on the citizens of Pakistan, Yemen, Somalia and other countries. Meanwhile, UN Ambassador Susan Rice took to Twitter last night to denounce changes to a draft UN resolution that condemns "extrajudicial killing" - even as her own nation and its closest Middle East ally continue as the global leaders of this practice.

Still, there's something particularly revealing about the US demanding that the governments of Afghanistan and Iraq abandon any commitment they are attempting to develop (albeit quite selectively) to basic due process rights and instead imprison anyone the US wants imprisoned - even in the absence of evidence of their guilt and even in the face of judicial findings that their detention is without evidence and unlawful. As it turns out after all, the US is indeed spreading its core values to those two nations, though those values have nothing to do with freedom and democracy except to the extent that they are the primary impediments to achieving it.

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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