The problem of the 'other Gitmo' By William Fisher
NEW YORK - While millions know that the administration of George W Bush has
left president-elect Barack Obama with the job of closing the US prison at
Guantanamo Bay, Cuba, relatively few are aware that the new president will also
face a similar but far larger dilemma 12,000 kilometers away.
That dilemma is what to do with what has become known as the "other Gitmo" -
the US-controlled military prison at Bagram air base near Kabul in Afghanistan
- and the estimated 600-700 detainees now held there.
This was set up by the US military as a temporary screening site after the 2001
invasion of Afghanistan overthrew the Taliban. It
houses more than three times as many prisoners as are still held at Guantanamo.
In 2005, following well-documented accounts of detainee deaths, torture and
"disappeared" prisoners, the US undertook efforts to turn the facility over to
the Afghan government. But due to a series of legal, bureaucratic and
administrative missteps, the prison is still under US military control. And a
recent confidential report from the International Committee of the Red Cross
(ICRC) has reportedly complained about the continued mistreatment of prisoners.
The ICRC report is said to cite massive overcrowding, "harsh" conditions, lack
of clarity about the legal basis for detention, prisoners held "incommunicado"
in "a previously undisclosed warren of isolation cells" and "sometimes
subjected to cruel treatment in violation of the Geneva Conventions".
Some prisoners have been held without charges or lawyers for more than five
years. The Red Cross said that dozens of prisoners have been held incommunicado
for weeks or even months, hidden from prison inspectors. (See
Bagram, the other Gitmo, Asia Times Online, Jan 15, 2008.)
According to Hina Shamsi of the American Civil Liberties Union (ACLU), "Bagram
appears to be just as bad as, if not worse than, Guantanamo. When a prisoner is
in American custody and under American control, our values are at stake and our
commitment to the rule of law is tested."
She told Inter Press Service, "The abuses cited by the Red Cross give us cause
for concern that we may be failing the test. The Bush administration is not
content to limit its regime of illegal detention to Guantanamo, and has tried
to foist it on Afghanistan."
She added: "Both Congress and the executive branch need to investigate what's
happening at Bagram if we are to avoid a tragic repetition of history."
But most observers believe the solution is more likely to come in the courts
and to be inextricably linked to recent judicial decisions affecting prisoners
at Guantanamo.
Last June, the US Supreme Court ruled that foreign nationals held as terrorism
suspects by the US military at Guantanamo have a constitutional right to
challenge their captivity in US courts in Washington. Last week, a federal
judge began exploring whether this landmark decision also applies to Bagram.
Like Guantanamo, Bagram was set up as a facility where battlefield captives
could be held for the duration of the "war on terror" under full military
control in an overseas site beyond the reach of US courts.
The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo
from the courts' review. But the Justice Department's argument is that none of
those rulings has any application to Bagram, and that the federal judge should
dismiss the legal challenges by Bagram detainees by finding that US courts have
no jurisdiction over them.
But lawyers for four Bagram prisoners who have been held in detention since at
least 2003 contend that recent Supreme Court Guantanamo decisions also apply to
Afghanistan. They are also arguing that another Supreme Court decision - Munaf
vs Geren - extended habeas corpus rights, the right to go to
court to contest the reason for detention as well as treatment, to a US
military facility in Baghdad.
Barbara Olshansky of the Stanford Law School represents three of the four men
who brought the court action. She said, "There is no more complete analogy or
mirror to Guantanamo than this [case]."
While US District Judge John D Bates has not ruled on the government's motion
to dismiss the four Bagram cases, he said during the court hearing, "These
individuals are no different than those detained at Guantanamo, except where
they're housed."
In its motion to dismiss the cases, the Justice Department argued that Bagram
is so much a part of ongoing military operations that there simply is no role
for US courts to play. "To provide alien enemy combatants detained in a theater
of war the privilege of access to our civil courts is unthinkable both legally
and practically," the government's brief claimed.
The government claims the US does not have nearly the control over the Bagram
base as it does over Guantanamo Bay, and thus the reasoning of the Supreme
Court in extending habeas rights to Guantanamo should not apply to
Bagram.
It also noted that Bagram is in the midst of a war zone; Guantanamo is not. It
asserted that civilian court review of Bagram detentions would actually
compromise the military mission in Afghanistan.
The Munaf decision also has no application to Bagram, the government's motion
contended, because that involved US citizens, not foreign nationals.
Lawyers for the Bagram detainees noted that some of them have been held for
more than six years, so any argument the Justice Department might have made
against habeas corpus rights abroad has now lost its force "after so
much time has passed".
They say the issue "is whether the executive can create a modern-day Star
Chamber [inquisitorial English courts of law in the 15th,16th and 17th
centuries], where it can label an individual an 'enemy combatant' or 'unlawful
enemy combatant', deny him any meaningful ability to challenge that label, and
on that basis, detain him indefinitely, virtually incommunicado, subject to
interrogation and torture, without any right of redress".
Bagram, their brief contended, "is not a temporary holding camp, intended to
house enemy soldiers apprehended on the battlefield, for the duration of a
declared war, finite in time and space." It said the "war on terror" as
conceived by the government is "unlimited in duration and global in scope".
It also noted that, unlike Guantanamo, Bagram is a permanent prison. Thousands
of individuals from all over the world have been taken to the airfield prison,
and nearly 700 remain there now, and it is being expanded with a new prison to
hold more than 11,000.
Moreover, they argued, Bagram detainees do not even have the minimal procedural
guarantees to have their captivity reviewed that Guantanamo prisoners have in
the so-called Combatant Status Review Tribunals (CSRT). The military does not
operate CSRTs as Bagram.
Lawyers for the four men - two Yemeni, one Tunisian and one Afghan - said none
was captured while in battle or otherwise directly aiding terrorist groups.
The Justice Department argued that releasing alleged enemy combatants into the
Afghan war zone, or even diverting US personnel there to consider their legal
cases, could threaten security.
"What evidence is there to believe they would return to the battlefield?" Judge
Bates asked deputy assistant attorney general John O'Quinn. "They were not on
the battlefield to begin with."
While there is no timetable for a court ruling, it is clear that it will not
come during the waning days of the Bush administration. Like the issue of how
to close Guantanamo, the Bagram issue will be left to the new presidency of
Barack Obama to solve.
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