[Ppnews] Justice Extends to Bagram - Guantánamo's Dark Mirror

[Political Prisoner News]

http://www.counterpunch.org/worthington04062009.html

April 6, 2009


Justice Extends to Bagram


Guantánamo's Dark Mirror

By ANDY WORTHINGTON

Since coming to power in a blaze of reforming 
glory, 
<http://www.counterpunch.org/worthington01232009.html>promising 
to close Guantánamo within a year, to stop the 
CIA from running offshore torture prisons, and to 
restore the Geneva Conventions to prisoners 
seized in wartime, the Obama administration has 
proceeded to make a number of poor decisions in 
relation to its predecessors’ reviled “War on Terror” policies.

One was the decision to invoke the state secrets 
privilege to quash a lawsuit against Boeing 
subsidiary Jeppesen for its role as 
<http://www.andyworthington.co.uk/2009/02/12/hiding-torture-and-freeing-binyam-mohamed-from-guantanamo/>the 
CIA’s travel agent in a case brought by a number 
of prisoners subjected to “extraordinary 
rendition,” although this was understandable if 
the floodgates were not to be opened with regard 
to everyone involved in the Bush administration’s 
lawless policies rather than, say, the senior 
officials who authorized the crimes. Another, I 
believe, was the refusal to substantially 
redefine the terms of reference for “enemy 
combatants,” while the administration was 
<http://www.andyworthington.co.uk/2009/03/16/guantanamo-the-nobodies-formerly-known-as-enemy-combatants/>scoring 
a propaganda point by dropping the use of the term.

There are, of course, many challenges to come -- 
not least, the question of 
<http://www.andyworthington.co.uk/2009/03/23/prosecuting-the-bush-administrations-torturers/>prosecutions 
for senior officials (from President Bush down), 
which Obama is clearly unwilling to tackle -- but 
so far the poorest decision came in February, 
when, in its first response to habeas corpus 
claims filed on behalf of four prisoners held in 
the US prison at Bagram airbase, 
<http://legaltimes.typepad.com/blt/2009/02/obama-stays-the-course-on-bagram-.html>the 
Justice Department responded to a request by 
District Court Judge John D. Bates, asking if the 
new administration would like to review the 
position maintained by the Bush administration -- 
essentially, that the prisoners in Bagram have no 
rights -- by stating simply, in a one-paragraph 
response, “This Court’s Order of January 22, 2009 
invited the Government to inform the Court by 
February 20, 2009, whether it intends to refine 
its position on whether the Court has 
jurisdiction over habeas petitions filed by 
detainees held at the United States military base 
in Bagram, Afghanistan. Having considered the 
matter, the Government adheres to its previously articulated position.”

What made this decision so poor was that the 
situation in which these men found themselves was 
essentially the same as that experienced by the 
prisoners in Guantánamo. The men in question -- 
Redha al-Najar, a Tunisian seized in Karachi, 
Pakistan, Amin al-Bakri, a Yemeni gemstone dealer 
seized in Bangkok, Thailand, Fadi al-Maqaleh, a 
Yemeni, and Haji Wazir, an Afghan businessman 
seized in the United Arab Emirates -- were all 
captured between five and seven years ago, and 
transferred to Bagram, where 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 Guantánamo -- prevented them from 
joining the 779 men in the offshore prison in Cuba.

Moreover, what made the Bagram prisoners’ 
situation even worse was that, whereas the 
prisoners in Guantánamo had, over the years, 
secured habeas corpus rights (the right to 
challenge the basis of their detention in a 
court) and the right to meet with and be 
represented by lawyers, none of these privileges 
had been extended to the prisoners in Bagram. 
Their isolation meant that, increasingly, the 
prison in Afghanistan -- which was, and is, under 
the complete control of the US military -- was 
nothing less than Guantánamo’s Dark Mirror, or, 
as Judge John D. Bates suggested in a review of 
the men’s cases in January, “a ‘black hole’ for 
detainees in a ‘law-free zone.’”

At the time, Judge Bates was only hinting that he 
thought it might be necessary to extend habeas 
rights to these particular prisoners in Bagram. 
In February, of course, the Obama administration 
thought that it had crushed his nascent dissent, 
when it declared, with an imperiousness that was 
reminiscent of 
<http://www.andyworthington.co.uk/2008/12/25/the-ten-lies-of-dick-cheney-part-one/>Dick 
Cheney and David Addington, that the reach of the 
law did not extend to Bagram.

However, last Thursday, after studying closely 
the differences between the prisoners held at 
Bagram -- in other words, between foreigners 
captured in other countries and “rendered” to 
Bagram, Afghans captured in other countries and 
“rendered” to Bagram, and Afghans captured in 
Afghanistan -- Judge Bates ruled 
(<http://www.scotusblog.com/wp/wp-content/uploads/2009/04/bagram-ruling-bates-4-2-09.pdf>PDF) 
that the habeas rights granted by the Supreme 
Court to the Guantánamo prisoners last June in 
<http://www.counterpunch.org/worthington06132008.html>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.”

What this involved, to recap on Boumediene, was 
that the government had no right to revoke the 
Suspension Clause of the US Constitution, under 
the Military Commissions Act of 2006, to prevent 
the prisoners from seeking “the protection of the 
writ of habeas corpus,” because, as the Supreme 
Court made clear, “At its historical core, the 
writ of habeas corpus has served as a means of 
reviewing the legality of Executive detention, 
and it is in that context that its protections have been strongest.”

The Supreme Court also noted that “the Judiciary 
-- not the Executive -- must decide when and 
where the Suspension Clause applies,” and, also 
drew on a case from 1803, which stated, “The writ 
of habeas corpus itself is an indispensable 
mechanism for monitoring the separation of powers 

The test for determining the scope of [the 
Suspension Clause] must not be subject to 
manipulation by those whose power it is designed to restrain.”

Judge Bates added that the military’s 
justification for holding the prisoners at Bagram 
involves a review process that is both 
“inadequate” and “more error-prone” than the 
tribunal process used at Guantánamo (which has, 
of course, been condemned by former officials who 
worked on it, including, in particular, 
<http://www.andyworthington.co.uk/2008/12/22/an-interview-with-guantanamo-whistleblower-stephen-abraham-part-one/>Lt. 
Col. Stephen Abraham), and concluded that the US 
military’s control over Bagram “is not 
appreciably different than at Guantánamo.”

His précis of the review process was, in fact 
genuinely disturbing, as 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 Guantánamo), and that 
“Bagram detainees represent themselves.” In addition,

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.

This Court need not determine how extensive the 
process must be to stave off the reach of the 
Suspension Clause to Bagram. It suffices to 
recognize that the UECRB process at Bagram falls 
well short of what the Supreme Court found inadequate at Guantánamo.

Judge Bates also explained 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.

As with the Supreme Court’s ruling in Boumediene, 
Judge Bates was also concerned by the length of 
time that the prisoners have been held without an 
adequate review of their cases. As he explained, 
“the Supreme Court’s observation in Boumediene is 
equally powerful here: ‘the costs of delay can no 
longer be borne by those who are held in custody. 
The detainees in these cases are entitled to a prompt habeas corpus hearing.’”

Nevertheless, although Judge Bates ruled that the 
three foreign prisoners could challenge the basis 
of their detention, he refused to extend habeas 
rights to the Afghan prisoners who make up the 
majority of the 670 or so prisoners held in 
Bagram, agreeing 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, he 
also refused to extend habeas rights to Haji 
Wazir, even though he was captured outside 
Afghanistan, although he did not dismiss his 
claim outright, and wondered whether there was 
any other mechanism whereby he might seek habeas relief.

On 
<http://www.scotusblog.com/wp/major-extension-of-boumediene/>SCOTUSblog, 
Lyle Denniston noted that this part of the ruling 
“seemed to suggest a potential impact of the 
ruling for detainees in places other than 
Bagram,” as Judge Bates stated that one possible 
route, about which he requested further briefing, 
involved ascertaining whether Congress “usurped” 
the constitutional authority of the federal 
courts, in the Military Commissions Act of 2006, 
when it prohibited habeas claims by any prisoner 
in US custody, anywhere in the world, who was held as an “enemy combatant.”

In conclusion, then, this was an extraordinarily 
important result for those who have been 
struggling for years to secure rights for the 
prisoners in Bagram -- in particular, Tina Foster 
and Barbara Olshansky of the 
<http://www.ijnetwork.org/>International Justice 
Network, who first filed the cases in October 
2006. Judge Bates gave the government until April 
23 to respond to his question about Congress 
usurping the federal courts’ constitutional 
authority, and gave Haji Wazir’s lawyers until 
May 7 to respond to the government’s brief. As 
for Redha al-Najar, Fadi al-Maqaleh and Amin 
al-Bakri, their cases now move to a detailed 
review, with Judge Bates taking the cases of 
al-Najar and al-Maqaleh, and Judge Ellen Segal 
Huvelle taking the case of al-Bakri.

Expect sparks to fly, as, in addition to being 
held for up to seven years without charge or 
trial, it appears that some, if not all of these 
men passed through a secret prison network in 
Afghanistan, which involved brutal torture, before they even arrived at Bagram.

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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