Obama's Guantanamo? Bush's Living Legacy at Bagram Prison

Just when you think you've woken up from a bad dream...

When it comes to offshore injustice and secret prisons, especially our
notorious but little known prison at Bagram Air Base in Afghanistan,
let's hope the Obama years mean never having to complete that sentence.

In the Bush era, those of us who followed his administration's
torture, detention, and interrogation policies often felt like we were
unwilling participants in a perverse game of hide-and-seek. Whenever
one of us stumbled upon a startling new document, a horrific new
practice, a dismal new prison environment, or yet another individual
implicated in torture policy, the feeling of revelation would soon be
superseded by a sneaking suspicion that we were once again looking in
the wrong direction, that the Bush administration was playing a
Machiavellian game of distraction with us.

Okay, call it paranoia -- a state of mind well suited to the Age of
Cheney -- but when Abu Ghraib finally came to light, it turned out that
our real focus should have been on the administration's program of
"extraordinary rendition" and the CIA secret flights to the foreign
countries that were serving as proxy torturers for the United States.
And when one case of torture by proxy, that of Maher Arar, achieved
some prominence, we began looking at proxy torturers for the United States, when we should have been looking at legalized policies of torture by the U.S.

Several years ago, British human rights lawyer Clive Stafford Smith
placed that jewel in the Bush administration's offshore crown of
injustice, Guantanamo, in the category of distraction as well --
distraction, that is, from the far grimmer and more important American
detention facility at Bagram Air Base in Afghanistan.

Distracted or not, for at least five years some of us have been
seeking the hidden outlines of the torture story. Now, President Obama
has given it a visible shape by providing a potential endpoint if not
to our investigations, then to our focus. Much of what we focused on in
these last years he's declared to be history. Guantanamo will be closed within a year and the American role in the war in Iraq will end as well; torture will once again be banned; a new task force,
already assembled, will review all the Bush administration's detention
policies; and people like me will, assumedly, finally be out of work
and able to write those novels we used to dream about. For us, no more
unwelcome obsessions with detention, abuse, and torture.

Bad Times at Bagram

Still, ever since the Oval Office changed hands in January, I've had
a nagging feeling that something was amiss. And when I finally focused
on it, a single question kept coming to mind: Whatever happened to the
U.S. prison at Bagram?

I knew that it had been opened in 2002 on an abandoned Soviet air
base the U.S. had occupied and was being massively upgraded after the
invasion of Afghanistan, and that its purpose was to hold prisoners in
the Global War on Terror at a place as far removed as possible from the
prying eyes of American courts or international oversight bodies of any
sort. In fact, many of those eventually transported to Guantanamo were
originally held under even worse conditions at Bagram and, from early
on, they had reported beatings, abuse, and a startlingly wide range of
other forms of mistreatment there.

But what else did I know? Thanks to New York Times reporters Carlotta Gall, David Rohde, Tim Golden, and Eric Schmitt, as well as to Alex Gibney's documentary film Taxi to the Dark Side,
I knew that two Afghans, Dilawar and Jullah Habibullah, had been beaten
to death by U.S. Army interrogators at the prison in December 2002. I
also knew that the use of such beatings, as well as various other forms
of torture, had been normalized at Bagram at the very beginning of the
Bush administration's long march of pain that led to Guantanamo and
then on to Abu Ghraib and other prisons in Iraq as well as foreign
torture chambers.

From the 2004 Church Report (written by Naval Inspector General
Admiral T. Church), I knew that military interrogators and guards at
Bagram had been given next to no relevant training for the mission of
detention and interrogation. I knew as well that a secret CIA prison
was allegedly located apart from the regular detention cells at Bagram.
I knew that military officials had declared that the interrogation
techniques at Bagram seemed to work better
than those being used at Guantanamo in the same period. And that, after
the Supreme Court issued a decision in 2004 to allow prisoners at
Guantanamo to challenge their detentions, the prison population at Bagram began to grow.

What We Don't Know About a Prison Nightmare

But that was the past. What did I know about the situation in the first weeks of the Obama era?

The unnerving answer was precious little. So, as I had done with
Guantanamo and Abu Ghraib, I began by asking the simple questions that
had once been so difficult to answer about so many offshore detention
facilities of the Bush era: Who was being held at Bagram? How many
prisoners were there and from which countries? What status did they
have? Were they currently classified as "enemy prisoners of war" or --
in the phrase the Bush administration had so favored in an attempt to
confound U.S. courts -- "unlawful enemy combatants"? How were they
being treated? What reports on prison conditions had either the U.S.
government or interested non-governmental organizations released?

Setting aside the frustrations of the past seven years, I naively
tried a basic Google search to see just what was instantly available,
only to discover that the answer was essentially nothing.

It turns out that we can say very little
with precision or confidence about that prison facility or even the
exact number of prisoners there. News sources had often reported
approximately 500-600 prisoners in custody at Bagram, but an accurate
count is not available. A federal judge recently asked for "the number
of detainees held at Bagram Air Base; the number of Bagram detainees
who were captured outside Afghanistan; and the number of Bagram
detainees who are Afghan citizens," but the information the Obama
administration offered the court in response remains classified and
redacted from the public record.

We don't even know the exact size of the prison or much about the
conditions there, although they have been described as more spartan and
far cruder than Guantanamo's in its worst days. The International
Committee of the Red Cross has visited the prison, but it remains
unclear whether they were able to inspect all of it. A confidential Red
Cross report from 2008 supposedly highlighted overcrowding, the use of
extreme isolation as a punishment technique, and various violations of
the Geneva Convention.

We do know that a planned expansion of the facility is underway and
will -- if President Obama chooses to continue the Bush project there
-- enable up to 1,100 prisoners to be held (a step which will grimly
complement the "surge" in American troops now underway in Afghanistan).
There are no figures available on how long most of Bagram's prisoners
have been held -- although some, it seems, have been imprisoned without
charges or recourse for years -- or how legal processes are being
applied there, if at all. Last spring, the International Herald Tribunereported
that Afghans from Bagram were sometimes tried in Afghan criminal
proceedings where little evidence and no witnesses were presented.

To students of Guantanamo, this sounds uncomfortably familiar. And
there's more that's eerily reminiscent of Gitmo's bleak history.
According to the New York Times,
even four years after Bagram was established, wire cages were being
used as cells, with buckets for toilets -- as was also true of the
original conditions at Camp X-Ray, the first holding facility at
Guantanamo. Similarly, as with Guantanamo, the U.S. has no status of
forces agreement with Afghanistan, and so the base and prison can be
closed or turned over to the Afghans only on U.S. say-so. Above all,
while some Bagram detainees do have lawyers, most do not.

The Prison Where It All Began

While I was wondering about the state of our black hole of
incarceration in Afghanistan, the Obama administration issued its first
terse statement on the subject. When it came to granting Bagram
detainees habeas
rights (that is, the right to challenge their detention in U.S.
courts), the administration simply stated that it "adheres to [the
Justice Department's] previously articulated position": habeas would not be granted.

After all, reasoned the new government lawyers (like their
predecessors), Bagram is in an indisputable war zone and different
legal considerations should apply. But here's the catch neither the
Bush administration, nor evidently the Obama administration, has cared
to consider: It's quite possible that these four individuals, like
others at Bagram, were not captured on an Afghan battlefield (as the
prisoners claim), but elsewhere on what Bush officials liked to think
of as the "global battlefield" of the War on Terror, and then
conveniently transported to Bagram to be held indefinitely.

The U.S. government refuses to make public any documentation that
would support its case and the new court documents, submitted by the
lawyers of the Obama Justice Department, are frustratingly blacked out
just as those of the Bush era Justice Department always were. At least
for the moment then, when it comes to Bagram, tactics and arguments
remain unchanged from the Bush years. No wonder journalists and human
rights lawyers have lately taken to referring to that prison as the
"other Guantanamo," or "Guantanamo II," or more combatively, "Obama's
Guantanamo."

Sadly, however, even this is inaccurate. From the get-go, Guantanamo
was actually the "other Bagram." The obvious question now is: How will
the Obama administration deal with this facility and, in particular,
with matters of detention, "enforced disappearance," and coerced
testimony? Will these be allowed to continue into the future,
Bush-style, or will the Obama administration extend its first executive
orders on Guantanamo and torture practices to deal in new ways with the
prison where it all began?

Facing Crimes of the Bush Era

President Obama has given a newly convened task force six months --
a long time when people are being held in harsh conditions without
charges or recourse -- to consider the matter of Bush administration
detention practices and formulate new policies (or, of course, retain
old ones). Here are some guidelines that may prove helpful when it
comes to Bagram:

1. On secrecy: The appeal to secrecy and national security has
been an all-purpose refuge of official rogues for the last seven years.
Reconsider it. A sunshine policy should apply, above all else, to
detention practices. Ideally, the U.S. should simply release full
information on Bagram and the prisoners being held there. When, in
specific cases, information is not divulged, the reasons for not doing
so should be fully revealed. Otherwise, the suspicion will always arise
that such withheld information might be part of a cover-up of
government incompetence or illegality. That must be ruled out. It is
imperative that President Obama's administration not double down on the
Bush administration's secrecy policy from a desire not to look back and
so to avoid future prosecutions of Bush officials.

2. On classification of prisoners: The Obama administration
should seriously consider declaring the prisoners at Bagram to be
"prisoners of war," and so subject to the Geneva Conventions.
Currently, they are classified as enemy combatants, as are the
prisoners at Guantanamo, and so, in the perverse universe of the Bush
administration, free from any of the constraints of international law.
The idea that the Conventions are too "rigid" for our moment and need
to be put aside for this new extra-legal category has always been false
and pernicious, primarily paving the way for the use of "enhanced
interrogation techniques."

3. On "ghost prisoners": The Obama administration should reject
out of hand the idea that prisoner invisibility is acceptable anywhere,
including at Bagram. The International Committee of the Red Cross must
be granted access to all of the prisons or prison areas at
Bagram, while conditions of detention there should be brought into
accordance with humane treatment and standards. No "ghost prisoners"
should be allowed to exist there.

4. On guilt and innocence: The belief that there is a
categorical difference between guilt and innocence, which went by the
wayside in the last seven years, must be restored. All too often, the
military brass still assumes that if you were rounded up by U.S.
forces, you are, by definition, guilty. It's time to change this
attitude and return to legal standards of guilt.

In the Bush years, we taught the world a series of harmful lessons:
Americans can be as cruel as others. Americans can turn their backs on
law and reciprocity among nations as efficiently as any tribally
organized dictatorship. Americans, relying on fear and the human
impulse toward vengeance, can dehumanize other human beings with a
fervor equal to that of others on this planet.

It's time for a change. It's time, in fact, to face the first and last
legacy of Bush detention era, our prison at Bagram Air Base, and deal
with it.

Call me a perpetual optimist, but President Obama has the right team in
place to address this nightmarish legacy in a wise and timely way. We
should expect no less from them than a full restoration of a government
responsible to the law, and confident of its power to deter enemies
legally -- be it on the battlefield or in the courtroom. So, too, we
must expect them to possess the courage to confront truths, even if
those truths mean heading down the path towards the prosecution of
crimes of the Bush years.