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<a href="http://www.counterpunch.org/worthington04062009.html" eudora="autourl">
http://www.counterpunch.org/worthington04062009.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">April 6,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>Justice Extends
to Bagram <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Guantánamo's Dark Mirror
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">S</font>
<font face="Verdana" size=2>ince coming to power in a blaze of reforming
glory,
<a href="http://www.counterpunch.org/worthington01232009.html">promising
to close Guantánamo within a year</a>, 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. <br><br>
One was the decision to invoke the state secrets privilege to quash a
lawsuit against Boeing subsidiary Jeppesen for its role as
<a href="http://www.andyworthington.co.uk/2009/02/12/hiding-torture-and-freeing-binyam-mohamed-from-guantanamo/">
the CIA’s travel agent</a> 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
<a href="http://www.andyworthington.co.uk/2009/03/16/guantanamo-the-nobodies-formerly-known-as-enemy-combatants/">
scoring a propaganda point</a> by dropping the use of the term.<br><br>
There are, of course, many challenges to come -- not least, the question
of
<a href="http://www.andyworthington.co.uk/2009/03/23/prosecuting-the-bush-administrations-torturers/">
prosecutions for senior officials</a> (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,
<a href="http://legaltimes.typepad.com/blt/2009/02/obama-stays-the-course-on-bagram-.html">
the Justice Department responded</a> 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.”<br><br>
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. <br><br>
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.’”<br><br>
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
<a href="http://www.andyworthington.co.uk/2008/12/25/the-ten-lies-of-dick-cheney-part-one/">
Dick Cheney and David Addington</a>, that the reach of the law did not
extend to Bagram. <br><br>
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
(<a href="http://www.scotusblog.com/wp/wp-content/uploads/2009/04/bagram-ruling-bates-4-2-09.pdf">
PDF</a>) that the habeas rights granted by the Supreme Court to the
Guantánamo prisoners last June in
<a href="http://www.counterpunch.org/worthington06132008.html"><i>
Boumediene v. Bush</a></i> 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.” <br><br>
What this involved, to recap on <i>Boumediene</i>, 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.”<br><br>
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.”<br><br>
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,
<a href="http://www.andyworthington.co.uk/2008/12/22/an-interview-with-guantanamo-whistleblower-stephen-abraham-part-one/">
Lt. Col. Stephen Abraham</a>), and concluded that the US military’s
control over Bagram “is not appreciably different than at
Guantánamo.”<br><br>
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,<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
As with the Supreme Court’s ruling in <i>Boumediene</i>, 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 <i>Boumediene</i> 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.’”<br><br>
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.
<br><br>
On
<a href="http://www.scotusblog.com/wp/major-extension-of-boumediene/">
SCOTUSblog</a>, 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.” <br><br>
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 <a href="http://www.ijnetwork.org/">International Justice
Network</a>, 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.<br><br>
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.<br><br>
<b>Andy Worthington</b> is a British historian, and the author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (published by Pluto Press). Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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