[Ppnews] Is Bagram Obama's New Secret Prison?
Political Prisoner News
ppnews at freedomarchives.org
Thu Sep 17 03:01:17 EDT 2009
http://www.counterpunch.org/worthington09162009.html
September 16, 2009
What Has Happened to the Geneva Conventions?
Is Bagram Obama's New Secret Prison?
By ANDY WORTHINGTON
On Monday, one day after the
<http://www.nytimes.com/2009/09/13/world/asia/13detain.html?hpw>New
York Times and the
<http://www.washingtonpost.com/wp-dyn/content/article/2009/09/12/AR2009091202798.html?hpid=topnews>Washington
Post reported that the Obama administration was
planning to introduce tribunals for the prisoners
held in the U.S. prison at Bagram airbase,
Afghanistan, the reason for the
specifically-timed leaks that led to the
publication of the stories became clear.
The government was hoping that offering tribunals
to evaluate the prisoners’ status would perform a
useful PR function, making the administration
appear to be granting important rights to the 600
or so prisoners held in Bagram, and distracting
attention from the real reason for its purported
generosity: a 76-page brief to the Court of
Appeals for the District of Columbia
(<http://www.scotusblog.com/wp/wp-content/uploads/2009/09/US-Bagram-brief-9-14-09.pdf>PDF),
submitted yesterday, in which the government
attempted to claim that “Habeas rights under the
United States Constitution do not extend to enemy
aliens detained in the active war zone at Bagram Airfield in Afghanistan.”
The main reason for this brazen attempt to secure
a PR victory before the appeal was filed is
blindingly obvious to anyone who has been
studying the Bagram litigation over the last five
months. In April,
<http://www.counterpunch.org/worthington04062009.html>Judge
John D. Bates ruled that three foreign prisoners
seized in other countries and “rendered” to
Bagram, where they have been held for up to six
years, had the right to challenge the basis of their detention in U.S. courts.
Below, I discuss the government’s position
regarding these men, and explain why introducing
Guantánamo-style tribunals at Bagram is no
substitute for the Geneva Conventions, and at the
end of the article I also ask whether the
government may not have an even darker motive,
related to what I perceive to be comments from
administration officials revealing Bagram’s
ongoing use as a secret prison for foreign
suspects “rendered” from other countries.
Why bringing Guantánamo to Bagram is intended to exclude the US courts
Despite fierce opposition from Obama’s Justice
Department, which clung to the line taken by the
Bush administration, Judge Bates ruled in April
that
<http://www.counterpunch.org/worthington06132008.html>Boumediene
v. Bush -- the Supreme Court ruling last June,
which granted constitutionally guaranteed habeas
corpus rights to the prisoners in Guantánamo --
extended to foreign prisoners “rendered” to
Bagram, because “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.
Judge Bates was undoubtedly correct, for two
reasons: firstly, because, as I 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”; and secondly, because he
<http://www.andyworthington.co.uk/2009/07/06/judge-rules-that-afghan-rendered-to-bagram-in-2002-has-no-rights/>refused
to extend habeas rights to an Afghan prisoner
“rendered” to Bagram from the United Arab
Emirates in 2002 -- and, by extension, to the
rest of the Afghans in Bagram, seized in
Afghanistan, who constitute all but 30 or so of
the 650 men held in the prison -- primarily
because he agreed with the government’s claim
that to do so would cause “friction” with the
Afghan government regarding negotiations about
the transfer of Afghan prisoners to the custody of their own government.
Reinforcing its hopes that offering tribunals to
the prisoners would deflect attention from its
desire to keep holding “rendered” prisoners at
Bagram indefinitely, the government included an
Addendum with its brief on Monday, outlining its
plans for the new tribunal system. This is
designed to replace an existing review system,
which, in the words of Judge Bates, “falls well
short of what the Supreme Court found inadequate
at Guantánamo” in Boumediene, being both
“inadequate” and “more error-prone” than the
notoriously inadequate and error-prone system of
Combatant Status Review Tribunals (CSRTs) that
was established at Guantánamo to review the prisoners’ cases.
Reporters have been quick to spot that the new
review system -- far from providing an adequate
system that would, presumably, satisfy the
Supreme Court -- is, in fact, little more than a
carbon-copy of the CSRTs, which were severely
criticized by the Supreme Court in Boumediene,
and which were also savaged by
<http://www.andyworthington.co.uk/2008/12/22/an-interview-with-guantanamo-whistleblower-stephen-abraham-part-one/>Lt.
Col. Stephen Abraham, a veteran of US
intelligence who worked on them, who explained,
in a
<http://www.counterpunch.org/worthington07022007.html>series
of
<http://www.huffingtonpost.com/h-candace-gorman-/garbage-guantanamostyle_b_58611.html>explosive
<http://www.counterpunch.org/worthington11202007.html>statements
in 2007, that they were designed primarily to
rubberstamp the administration’s insistence that
the men were “enemy combatants,” even though they
had not been adequately screened on capture.
What has happened to the Geneva Conventions?
This omission of screening on capture -- which
has applied at Bagram ever since -- came about
because, under instructions from the highest
levels of government, the military was obliged to
shelve its plans to hold competent tribunals
under
<http://www.unhchr.ch/html/menu3/b/91.htm>Article
5 of the Geneva Conventions, despite the fact
that they had been pioneered by the U.S., and had
been used successfully in every war from Vietnam
onwards. Held close to the time and place of
capture, these tribunals (as opposed to the
CSRTs, which mockingly echoed them), comprise
three military officers, and are designed to
separate combatants from civilians seized in the
fog of war, in cases where it is not obvious that
prisoners are combatants (when they are not
wearing a uniform, for example), by allowing the
men in question to call witnesses.
During the first Gulf War, around 1,200 of these
tribunals were held, and in nearly three-quarters
of the case, the men were found to have been
wrongly detained, and were released. The
<http://www.andyworthington.co.uk/2009/05/27/guantanamo-and-the-many-failures-of-us-politicians/>failure
to implement these tribunals in the “War on
Terror” contributed enormously to the filling of
Guantánamo with prisoners who had no connections
to any form of militancy whatsoever, and these
initial errors were not redressed when a skewed
version of the tribunals -- the CSRT system --
was introduced two and half years later.
As a result, plans to introduce Guantánamo-style
tribunals to Bagram -- in which prisoners are
assigned military representatives instead of
lawyers, and may call witnesses and present
evidence if “reasonably available” -- may be an
improvement on the existing system of Unlawful
Enemy Combatant Review Boards at Bagram -- in
which the prisoners have no representation
whatsoever, and are only allowed to make a
statement before they hear the evidence against
them -- but it fails to take into account the
fact that non-uniformed prisoners seized in
wartime, like those at Bagram, should, under the
terms of the Geneva Conventions, be given
competent tribunals on capture, and then, if
found to be combatants, held unmolested until the end of hostilities.
Despite being addressed in the DoD’s new
proposals, these concerns are not mitigated by
the fact that, according to these plans, new
prisoners will be subjected, on capture, to
cursory reviews by “the capturing unit commander”
and by the commander of Bagram to ascertain that
they “meet the criteria for detention,” and the
problem is underlined by the DoD’s insistence
that it is not merely holding prisoners
“consistent with the laws and customs of war,”
but also holding those who fulfill the criteria
laid down in the
<http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html>Authorization
for Use of Military Force (the founding document
of the “War on Terror,” approved by Congress
within days of the 9/11 attacks), which
authorized the President to detain those who
“planned, authorized, committed or aided the
terrorist attacks that occurred on September 11,
2001,” or those who supported them.
So is Bagram Obama’s new secret prison?
However, while this is a genuinely disturbing
development, because it suggests that the Obama
administration is essentially following President
Bush’s lead by unilaterally rewriting the
Conventions, presumably to allow it to continue
exploiting prisoners of war for their supposed
intelligence value (even though the DoD
explained, in its proposal, that “intelligence
value, by itself, is not a basis for
internment”), only one major media outlet -- the
New Yorker -- has picked up on a disturbing
disclosure in the Times’ coverage of the story on
Sunday.
<http://www.andyworthington.co.uk/2009/09/14/obama-brings-guantanamo-and-rendition-to-bagram/>I
reported this in an article on Monday, when I
explained that there was something deeply
suspicious about the officials’ statement that:
the importance of Bagram as a holding site for
terrorism suspects captured outside Afghanistan
and Iraq has risen under the Obama
administration, which
<http://www.counterpunch.org/worthington01232009.html>barred
the Central Intelligence Agency from using its
secret prisons for long-term detention.
As I explained, this “seems to confirm, in one
short sentence, that, although the CIA’s secret
prisons have been closed down, as ordered by
President Obama, a shadowy ‘rendition’ project is
still taking place, with an unknown number of
prisoners being transferred to Bagram instead.”
In a blog post for the
<http://www.newyorker.com/online/blogs/closeread/2009/09/close-read-whats-going-on-at-bagram.html>New
Yorker, Amy Davidson also picked up on the
statement, calling it a sentence “that doesn’t
make much sense,” and then asked:
So closing Guantánamo increases the need for a
new Guantánamo, and barring the use of secret
prisons just means that you need to find a new
place to stash secret prisoners? Have we had it
with Guantánamo because it’s unfashionable --
like a played-out spring-break destination, now
overrun with journalists and human-rights lawyers
hopping on planes in Florida -- or because we
actually don’t like extrajudicial, indefinite detention?
While I await further developments, I recall
that, back in April, CIA director
<file://localhost/news-information/press-releases-statements/directors-statement-interrogation-policy-contracts.html>Leon
Panetta explained that, although the CIA “no
longer operates detention facilities or black
sites and has proposed a plan to decommission the
remaining sites,” the agency “retains the
authority to detain individuals on a short-term
transitory basis.” Panetta added that, although
no detentions had occurred since he became
director, “We anticipate that we would quickly
turn over any person in our custody to U.S.
military authorities or to their country of
jurisdiction, depending on the situation.”
Is this what is happening now at Bagram? Shortly
after Panetta made his comments,
<http://www.counterpunch.org/worthington05072009.html>I
noted that “the only logical conclusion” I could
draw was that, “essentially, the Obama
administration’s only real problem with
‘extraordinary rendition’ is one of scale. The
Bush administration’s industrial-scale rendition
policies have been banished, but the prospect of
limited rendition -- to third countries rather
than to the U.S. court system, as would surely be
more acceptable -- is being kept as a possible option.”
Whether hidden transfers to third countries are
taking place is unknown, but from my reading of
the officials’ comments to the Times, I infer
that the CIA is now handing suspects over to the
U.S. military, including those captured outside
Afghanistan, and that this is the reason, above
all, that the government is anxious to prevent
the U.S. courts from having access to foreign prisoners in Bagram.
Moreover, as with the Bush administration, the
indications are that this process focuses solely
on the gathering of “actionable intelligence” --
or with “decommissioning” suspects -- and that
those responsible for implementing it have, yet
again, chosen to ignore the fact that terrorism
is a crime, prosecutable in the U.S. courts, and
not an act of war requiring secret prisons and
extra-legal detention, however much it may be
dressed up in review procedures that include only
the following “[p]ossible recommendations” for
what will happen to those prisoners who “meet the
criteria for internment”: “continued internment”
in Bagram, transfer to the Afghan authorities for
prosecution, transfer to the Afghan authorities
“for participation in a reconciliation program,”
and, in the cases of “non Afghan and non-U.S.
third-country national[s],” options “that may
also include transfer to a third country for
criminal prosecution, participation in a
reconciliation program, or release.” What, I
wonder, are the options that were not included?
Andy Worthington is a British journalist and
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
Freedom Archives
522 Valencia Street
San Francisco, CA 94110
415 863-9977
www.Freedomarchives.org
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