[Ppnews] Bagram Isn't the New Guantánamo, It's the Old Guantánamo

Political Prisoner News ppnews at freedomarchives.org
Mon Aug 17 10:59:35 EDT 2009


August 17, 2009

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


Back in September 2005, when I first began 
researching Guantánamo for my book 
Guantánamo 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 U.K., 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 Guantánamo 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 -- 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.

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 U.S. 
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 Guantánamo, 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 U.S. 
custody, enough accounts emerged for lawyers and 
observers (who also drew on official reports 
about how torture techniques, used in U.S. 
military schools to train U.S. military personnel 
to resist enemy interrogation, had been reverse 
engineered for use at Guantánamo) to build up 
their own, more convincing “mosaic” of 
intelligence, demonstrating that abuse -- and, in 
some cases, torture -- was also widespread 
throughout Guantánamo, 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 U.S. 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 U.S. 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 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 , 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 Guantánamo -- 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 Guantánamo, no lawyer has ever 
set foot in the U.S. 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 U.S. 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 U.S. 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 Guantánamo 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 Guantánamo 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 Guantánamo -- 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 Guantánamo within a year and to 
ban torture, and established that the questioning 
of prisoners by any U.S. 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 U.S. 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 Guantánamo, 
albeit one that is both “inadequate” and “more 
error-prone,” and concluded that the U.S. 
military’s control over Bagram “is not 
appreciably different than at Guantánamo.” 
Creating such inadequate tribunals, it should be 
noted, is quite an achievement, as Guantánamo’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’ précis of the review 
process at Bagram, which, as he also explained, 
“falls well short of what the Supreme Court found 
inadequate at Guantánamo,” 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 Guantánamo), 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.

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

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