Bagram Isn't the New Guantanamo, It's the Old Guantanamo

Back in September 2005, when I first began researching Guantanamo for my book The Guantanamo Files,
the prison was still shrouded in mystery, even though attorneys had
been visiting prisoners for nearly a year, following the Supreme
Court's ruling, in June 2004, that they had habeas corpus rights.
Researchers at the Washington Post and at Cageprisoners,
a human rights organization in the UK, had compiled tentative lists of
who was being held, but, although these efforts were commendable, much
of it was little more than groping in the dark - a broken jigsaw puzzle
based on media reports and interviews with released prisoners - because
the Bush administration refused to provide details of the names and
nationalities of those it was holding.

In April 2006 - four years and three months after Guantanamo opened
- the government finally conceded defeat, after the Associated Press
took the Pentagon to court, and won. That month, the first ever list of
prisoners (PDF)
- containing the names and nationalities of the 558 prisoners who had
been subjected to the administration's Combatant Status Review
Tribunals (one-sided reviews, designed to rubberstamp their prior
designation as "enemy combatants") - was released, and was followed in
May by a list of the 759 prisoners held up to that point (including the
201 who had been released before the tribunals began), which included
names, nationalities, and, where known, dates of birth and places of
birth (PDF).

The government also released 8,000 pages
of tribunal transcripts and allegations against the prisoners, which
pierced the veil of secrecy still further, allowing outside observers,
as well as lawyers, the opportunity to examine whether the government's
claims that the prison was full of terrorists were true, and to
conclude that, actually, the prison was largely populated by innocent
men or low-level Taliban foot soldiers, recruited to fight an
inter-Muslim civil war that began long before the 9/11 attacks, and had
nothing to do with al-Qaeda or international terrorism.

These records revealed that an overwhelming majority of the men had
not been seized by US forces on the battlefield, but had been sold to
them by their Afghan or Pakistani allies, at a time when bounty payments were widespread,
and - perhaps most shockingly - the transcripts also revealed that a
vast amount of the government's supposed evidence consisted not of
verifiable facts, but of "confessions" made by other prisoners - or by
the prisoners themselves - under unknown circumstances. A great deal of
demonstrably unreliable information was attributed to unidentified
figures in al-Qaeda - in general, the "high-value detainees," including
Abu Zubaydah and Khalid Sheikh Mohammed,
who were being held in secret CIA prisons where the use of torture had
been sanctioned by the Justice Department's Office of Legal Counsel, in
its notorious "torture memos."

Other information came from unidentified "sources" within
Guantanamo, and in the last year, as judges have finally been able to
examine these allegations in the District Courts charged with hearing
the prisoners' habeas corpus cases, many of these sources have been
revealed as deeply untrustworthy: talkative informants regarded with suspicion
by many of those working behind the scenes in the military and other
agencies; mentally ill prisoners; and others whose accounts have not
stood up to outside scrutiny, and have been revealed as part of a
supposed "mosaic" of intelligence that, as one judge, Gladys Kessler,
declared in May, "is only as persuasive as the tiles which compose it
and the glue which binds them together." As I explained at the time,
Judge Kessler "then proceeded to highlight a catalog of deficiencies in
the tiles and the glue," dismissing the "mosaic" as being "composed of
second- or third-hand hearsay, guilt by association and unsupportable
suppositions."

In addition, although few of the prisoners were willing to talk to a
panel of the military officers about how they had been abused in US
custody, enough accounts emerged for lawyers and observers (who also
drew on official reports about how torture techniques, used in US
military schools to train US military personnel to resist enemy
interrogation, had been reverse engineered
for use at Guantanamo) to build up their own, more convincing "mosaic"
of intelligence, demonstrating that abuse - and, in some cases, torture
- was also widespread throughout Guantanamo, raising fears that even
confessions that appeared legitimate were fatally tainted because they
had been extracted using coercion.

It would be difficult to underestimate how important the release of
these documents was to those engaged in a seemingly endless struggle to
secure justice for those held without charge or trial, who had, in
general, been rounded up indiscriminately, and had never been
adequately screened to determine whether they constituted a threat to
the US or its allies. However, over three years on from the release of
these lists - and eight months into the Obama administration - history
is repeating itself at the US prison in Bagram airbase in Afghanistan.
The difference, however, is that at Bagram the clock has stopped before
any painful details of incompetence have been released, leaving lawyers
and other observers still groping in the dark.

Fighting for the rights of the Bagram prisoners

On April 23, the ACLU filed
a Freedom of Information Act (FOIA) request with the Department of
Defense, the Justice Department, the State Department and the CIA,
asking them to make public "records pertaining to the number of people
currently detained at Bagram, their names, citizenship, place of
capture and length of detention, as well as records pertaining to the
process afforded those prisoners to challenge their detention and
designation as 'enemy combatants.'"

On May 15, the CIA responded (PDF)
by stating that it "can neither confirm nor deny the existence or
nonexistence of records responsive to your request," because "The fact
of the existence or nonexistence of requested records is currently and
properly classified," and on July 28, the DoD also responded (PDF),
stating, tantalizingly, that, although the National Detainee Reporting
Center had provided the DoD's Office of Freedom of Information with "a
12-page classified report, current as of June 22, 2009," which
contained the prisoners' "names, citizenship, capture date, days
detained, capture location and circumstances of capture," the report
was "exempt for release" because it was "properly classified in the
interest of national security."

In response, Jonathan Hafetz, a staff attorney with the ACLU National Security Project, stated,
"The Obama administration should make good on its own pledge of greater
transparency and release these basic facts about who we are detaining
and under what conditions," and Melissa Goodman, also a staff attorney
with the ACLU National Security Project, added, "There are serious
concerns that Bagram is another Guantanamo - except with many more
prisoners, less due process, no access to lawyers or courts and
reportedly worse conditions. As long as the Bagram prison is shrouded
in secrecy, there is no way to know the truth or begin to address the
problems that exist there."

In
this, the ACLU's lawyers were undoubtedly correct. According to the
best available estimates, at least 600 prisoners are held at Bagram,
but unlike Guantanamo, no lawyer has ever set foot in the US military's
flagship Afghan prison, even though some of the prisoners held there
were seized in other countries and "rendered" to Bagram, where they
have been held for up to seven years. The prison was particularly
notorious in its early days - especially in 2002, when at least two prisoners died at the hands of US forces - but according to a survey conducted by the BBC
in June this year, former prisoners, held between 2002 and 2008, stated
that they were beaten, deprived of sleep and threatened with dogs, and
provided no indication that conditions had improved from the beginning
to the end of the six-year period.

Why foreign prisoners in Bagram deserve habeas corpus rights

To understand why Bagram needs independent scrutiny, it is necessary
to distinguish between the prison's two distinct functions, each of
which fails to conform to internationally acceptable standards of
detention. The first concerns the foreign prisoners (perhaps as many as
30) seized in other countries and "rendered" to Bagram. In March, when
enterprising lawyers at the International Justice Network
finally managed to bring a habeas corpus petition on behalf of four of
these men in front of a US judge (having established that they were
held at Bagram through discussions with family members based on letters
delivered by the International Committee of the Red Cross), the judge
in question, John D. Bates, recognized the unacceptable discrepancy
between the Guantanamo prisoners and those "rendered" to Bagram.

As I explained in an article at the time, "Judge Bates ruled that the habeas rights granted by the Supreme Court to the Guantanamo prisoners last June in Boumediene v. Bush
also extended to the foreign prisoners in Bagram, because, as he
explained succinctly, '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.

This was good news for three of the men - Redha al-Najar, a Tunisian
seized in Karachi, Pakistan, Amin al-Bakri, a Yemeni gemstone dealer
seized in Bangkok, Thailand, and Fadi al-Maqaleh, a Yemeni - because,
as I also 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." However, at the time of writing, it is uncertain whether they
will have their day in court, as the government has appealed Judge
Bates' ruling.

Why the Afghans in Bagram must be held according to the Geneva Conventions

In the same ruling in March, Judge Bates reserved judgment on the
case of the fourth man, Haji Wazir, an Afghan seized in 2002 in the
United Arab Emirates, but ruled in June that habeas rights did not
extend to him (or, by extension, to all the other Afghans held at
Bagram), primarily because he agreed with the government's claim that
to do so would cause "friction" with the Afghan government, because of
ongoing negotiations regarding the transfer of Afghan prisoners to the
custody of their own government.

As a result, the government presumably feels entitled to continue to
hold the majority of the prisoners in Bagram - who, from what we can
gather, are Afghans seized in Afghanistan - beyond any kind of outside
scrutiny. However, while this may be acceptable in the sense that
Bagram is a prison in an active war zone, it is, to my mind, only
acceptable if the government also demonstrates that it is holding
prisoners in accordance with the Geneva Conventions. As I explained in an article in June:

In one of his first acts as President, Obama signed a number of Executive Orders,
in which he promised to close Guantanamo within a year and to ban
torture, and established that the questioning of prisoners by any US
government agency must follow the interrogation guidelines laid down in
the Army Field Manual, which guarantees humane treatment under the
Geneva Conventions. The Order relating to interrogations also
specifically revoked President Bush's Executive Order 13440
of July 20, 2007, which "reaffirm[ed]" his "determination," on February
7, 2002, that "members of al-Qaeda, the Taliban, and associated forces
are unlawful enemy combatants who are not entitled to the protections
that the Third Geneva Convention provides to prisoners of war."

As a result of Obama's stated reforms, it was my belief that:

the President would call an immediate halt to what I can
only describe as the "Rumsfeldization" of the US military, in which,
following the directives of former defense secretary Donald Rumsfeld
(and echoing what was happening with the intelligence agencies, where
the FBI was sidelined by the CIA), the detention of prisoners was no
longer a matter of holding them humanely until the end of hostilities,
but became, instead, an ongoing process of interrogation, dedicated to
securing "actionable intelligence," which, of course, degenerated into
the use of torture when the presumed "actionable intelligence" was not
forthcoming. [...]

It may be that the policies at Bagram changed overnight after Obama
issued his executive orders in January, but the suspicion ... is that, as
far as the administration is concerned, certain key innovations in the
"War on Terror" - in particular, holding prisoners for their
intelligence value, rather than to keep them "off the battlefield" -
has become the post-9/11 norm, as a kind of unilateral reworking of the
Geneva Conventions.

From what I have been able to gather about the workings of Bagram, I
have no reason to conclude that the prison is now being run according
to the Geneva Conventions, with prisoners kept "off the battlefield"
until the end of hostilities (whenever that might be). Instead, as I
reported in March, Judge Bates explained that the military's
justification for holding the prisoners at Bagram involves a review
process similar to the one that was used at Guantanamo, albeit one that
is both "inadequate" and "more error-prone," and concluded that the US
military's control over Bagram "is not appreciably different than at
Guantanamo." Creating such inadequate tribunals, it should be noted, is
quite an achievement, as Guantanamo's tribunals were soundly condemned
by former officials who worked on them, including, in particular, Lt. Col. Stephen Abraham, who issued a series of explosive statements in 2007.

In addition, Judge Bates' precis of the review process at Bagram,
which, as he also explained, "falls well short of what the Supreme
Court found inadequate at Guantanamo," was, in fact, genuinely
disturbing. He quoted from a government declaration which stated that
the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does not
even allow the prisoners to have a "personal representative" from the
military in place of a lawyer (as at Guantanamo), and that "Bagram
detainees represent themselves," and added, with a palpable sense of
incredulity:

Detainees cannot even speak for themselves; they are
only permitted to submit a written statement. But in submitting that
statement, detainees do not know what evidence the United States relies
upon to justify an "enemy combatant" designation - so they lack a
meaningful opportunity to rebut that evidence. [The government's]
far-reaching and ever-changing definition of enemy combatant, coupled
with the uncertain evidentiary standards, further undercut the
reliability of the UECRB review. And, unlike the CSRT process, Bagram
detainees receive no review beyond the UECRB itself.

A challenging conclusion, Mr. President

In
conclusion, then, it should be apparent that the government cannot
maintain the Bush administration's status quo at Bagram, as it is
failing on two fronts to hold prisoners according to the
internationally acceptable standards of detention that existed before
the Bush administration brushed aside the Geneva Conventions for
prisoners of war, and held criminal suspects beyond the law.

If the Obama administration will not put the foreign prisoners
"rendered" to Bagram on trial, then the President needs to allow them
to challenge the basis of their detention before an impartial judge;
and if he reinstates the Geneva Conventions for prisoners of war, and,
with a stroke of the pen, consigns his predecessor's horrendous
novelties to history, then he needs to do more than just pay lip
service to the reinstatement of the Conventions, and needs to prove,
beyond a shadow of a doubt, that he is not perpetuating a Rumsfeld-lite
form of detention, in which humane treatment is secondary to the quest
for "actionable intelligence," because, once the rules are discarded,
our recent history shows us that what follows, inexorably, is torture
and abuse.