Obama: Giving Bagram Detainees Access to US Courts a Threat to National Security
Bagram Detainees Not Equal to Gitmo Detainees, Administration Insists
by Jason Ditz
September 14, 2009
Though the Department of Defense has made a big deal about the major changes being made in the detention procedures at Bagram Air Force Base in Afghanistan, and the notion that for the first time detainees will have something resembling rights while in US custody, the Obama Administration has made it clear today that those "rights" don't extend very far.
Today the administration made a filing with the US Court of Appeals in Washington challenging a previous determination by a judge that some Bagram detainees actually had legal rights to challenge their detention.
Though the judge said some of the detainees actually had no legal rights, he determined that foreigners being held there were materially the same as those at Guantanamo Bay, and should be afforded the same rights. The administration is now arguing that they're not the same, and that giving the detainees actual legal rights could be a threat to the ongoing war effort in Afghanistan.
The "rights" they'll actually get, rather, are that the Pentagon will actually assign a non-lawyer soldier to them to help them gather evidence in an attempt to prove that they're not guilty of whatever they're being accused of. The military will then decide if they want to let them go or not.
New Rights for Afghan Detainees
By Meredith Buel
14 September 2009
The U.S. Defense Department has begun implementing a program that will give hundreds of prisoners in Afghanistan the right to challenge their detention.
Pentagon spokesman Bryan Whitman says the new policy will allow about 600 detainees being held at the U.S.-run detention center at the Bagram Air Base in Afghanistan to challenge what, for many, has been an indefinite stay.
"It is something we had used in Iraq to help us manage the detainee population and ultimately reduce the detainee population by insuring that we are only holding those that are the most dangerous threat," Whitman said.
The new Pentagon rules would assign a U.S. military official to work with each of the detainees.
The officials would not be lawyers, but would, for the first time, gather evidence and witnesses to help the detainees dispute their detention before a military-appointed review board.
Some of those being held at Bagram have been there for as long as six years.
Unlike detainees at the Guantanamo Bay naval base in Cuba, those in Afghanistan have had no access to attorneys, no right to hear the allegations against them and only basic reviews of their status as "enemy combatants."
Pentagon spokesman Bryan Whitman says each detainee will now have the right to be heard within 60 days of his arrival at the center.
"It is basically a review procedure that insures people go in front of a panel periodically, very early on in their detention, and then periodically to give them the opportunity to contest their detention [and] for an assessment to be made as to whether or not they warrant being held," Whitman said.
The Bagram detention center, located north of Kabul, has been used as a holding site for Afghan prisoners as well as terrorism suspects captured outside of the country.
The facility has sparked public resentment in Afghanistan. And human rights groups have condemned the Bagram site as denying detainees basic human rights.
Human rights advocates say those being held at Bagram have been protesting their detention since July by refusing privileges such as family visits and recreation time.
The Obama administration is reviewing the detention policies it inherited from the Bush administration. Human rights organizations say those practices allow for arbitrary and indefinite detention.
Judge: US Can Continue Detaining Suspect at Bagram Without Legal Recourse
Govt Won't Say Why Wazir Is Detained,
Judge Rules They'll Never Have to
by Jason Ditz, June 29, 2009
In a ruling widely expected given the judge's previous comments, US District Judge John Bates ruled that Haji Wazir, an Afghan citizen captured by the US in 2002 and held in detention at the Bagram internment facility in Afghanistan, has no legal right to challenge his detention in US courts.
In the seven years he's been held in US custody Wazir, who is reportedly a businessman, has never been charged with any offense, and US officials have declined to even publicly say what he is being charged with. Bates ruled that if Wazir was able to challenge its detention, it could cause "friction" for the diplomatic relationship between the US and Afghan governments.
In April Bates had ruled that Bagram was materially the same as Guantanamo Bay and that detainees there did have a right to challenge their detention in US courts, despite objections from the Obama Adminisration. At the time Bates made it clear his ruling only applied to detainees who weren't born inside Afghanistan and didn't hold Afghan citizenship.
Though Bates admitted at the time that stripping all legal rights from a detainee based on his residency status was "odd," he insisted that the ruling was necessary given the nature of US ties with the Afghan government it was perfectly constitutional to detain him indefinitely without due process.
Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions)
Following briefings by Obama administration officials (who declined to be identified), both the New York Times and the Washington Post reported yesterday that the government is planning to introduce a new review system for the 600 or so prisoners held at Bagram airbase in Afghanistan, which will, for the first time, allow them to call witnesses in their defense.
On paper, this appears to be an improvement on existing conditions at the prison, but a close inspection of the officials' statement reveals that the proposed plans actually do very little to tackle the Bush administration's wayward innovations regarding the detention of prisoners in wartime, and, moreover, the officials also provided the shocking news that prisoners are currently being rendered to Bagram from other countries.
Reform at Bagram is certainly needed. Until 2007, there was, as the Post explained, "no formal process to review prisoner status," and, as District Court Judge John D. Bates noted in April, the system that was then put in place — consisting of Unlawful Enemy Combatant Review Boards — "falls well short of what the Supreme Court found inadequate at Guantánamo" (in Boumediene v. Bush, the June 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights), being both "inadequate" and "more error-prone" than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals that was established at Guantánamo to review the prisoners' cases.
Revealing the chronic deficiencies of the review system at Bagram, Judge Bates quoted from a government declaration which stated that the UECRBs at Bagram do 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 [which was followed by annual review boards], Bagram detainees receive no review beyond the UECRB itself.
In what appears to be a direct response to Judge Bates' damning criticisms, government officials explained, as the Post described it, that:
Under the new rules, each detainee will be assigned a US military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available," the official said. The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released.
While this checks all the boxes regarding the deficiencies identified by Judge Bates, and includes the additional promise that, "For those ordered held longer, the process will be repeated at six-month intervals," it hardly constitutes progress, as these plans essentially replicate the CSRTs at Guantánamo, which, lest we forget, were condemned as a sham process by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals. In a series of explosive statements in 2007, Lt. Col. Abraham explained that they relied on an evidentiary process that was nothing short of "garbage," and were designed merely to rubberstamp the Bush administration's feeble or non-existent justification for holding the majority of the men.
Hoping to fend off such criticisms, the government officials told the Post that "the review proceedings at Bagram will mark an improvement in part because they will be held in detainees' home countries — where witnesses and evidence are close at hand."
This may be the case, but at no point in the officials' statements was any mention made of the government's obligations to hold prisoners seized in wartime as prisoners of war in accordance with the Geneva Conventions. In practical terms, this would not necessarily help the prisoners secure their release, because the Conventions assert that prisoners of war can be held until the end of hostilities, and at present, from the best estimates made available, prisoners are held for an average of 14 months before being transferred to Afghan custody (or, in some cases, released outright), and around 500 prisoners have left Bagram to date.
However, under Article 5 of the Geneva Conventions, if there is any doubt about the status of prisoners seized in wartime, competent tribunals must be held, close to the time and place of capture, in which prisoners are allowed to call witnesses. As I have explained at length before, these tribunals were held during every US war from Vietnam onwards, but they were deliberately suppressed by the Bush administration (contributing decisively to the filling of Guantánamo with men who had no connection to any form of militancy whatsoever), and what President Obama must do, if he is intending to ensure that the United States once more embraces the Geneva Conventions, is to pledge that all prisoners seized in future will be subjected to these tribunals on capture, rather than holding versions of the CSRTs at some unspecified time afterwards.
By refusing to do so, I can only infer that he and his administration have, essentially, accepted the Bush administration's aberrant changes regarding the detention of prisoners in wartime as a permanent shift in policy, with profound implications for the Conventions in general.
If Obama's plan stands, any country anywhere in the world will be able to seize irregular soldiers during wartime (including US forces working undercover, presumably), and, instead of holding competent tribunals, feel justified in holding them for an unspecified amount of time before subjecting them to innovative tribunals, which bear a resemblance to the competent tribunals, but which are, instead, clearly designed to shred Article 5 and to allow prisoners to be held until their circumstances can be explored further — and, again by inference, until they can be milked for their supposed intelligence value, with all the ominous undercurrents that phrase involves.
In the case of Bagram, a further complication is that, according to the Post, the Conventions have been shredded still further, because about 200 of the 500 prisoners who have left Bagram "have been convicted in Afghan courts, all based on evidence the United States provided."
These fundamental assaults on the Geneva Conventions, combined with the evidence regarding the dubious relationship between the US and the Afghan courts, are disturbing enough, as they, demonstrate, in defiance of the claims made by government officials, that the Obama administration is only tinkering with its predecessor's fundamental disregard for international laws and treaties.
However, the timing of the government's announcement is also enormously suspicious because, as the Times explained, it comes "as the administration is preparing to appeal a federal judge's ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment."
That ruling, which I quoted from above, was made by Judge Bates, in the cases of three foreign prisoners seized in other countries and "rendered " to Bagram, where they have languished without rights for up to six years. In April, when Judge Bates ruled on their habeas corpus appeals, he had no hesitation in granting them the right to challenge the basis of their detention through the courts because, as he explained unambiguously, "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.
As I explained at the time, it was inconceivable that the government could come up with an argument against Judge Bates' ruling, or, indeed, that there was any justification whatsoever for doing so, because "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, although Judge Bates, in a later ruling, sided with the government by refusing to grant habeas rights to an Afghan prisoner seized in the United Arab Emirates in 2002 and also rendered to Bagram, 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, the Obama administration refused to accept his ruling about the foreign prisoners and launched an immediate appeal. As a result, it is, I believe, completely justifiable to conclude that the entire rationale for introducing a new review process for all the prisoners at Bagram is to prevent the courts from having access to the foreign prisoners held there.
Reinforcing this conclusion is another admission, hidden away towards the end of the Times report, in which it was noted that the officials also explained that "the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention."
This, to put it bluntly, is terrifying, as it 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.
The upshot of all this is disastrous for those who hoped that President Obama would not only accept, but would positively embrace the opportunity to return to the laws that existed regarding the capture and detention of prisoners, before they were so comprehensively dismissed by the Bush administration. Far from reassuring the world that there are only two acceptable methods for holding people in detention — either as criminal suspects, to be put forward for trials in federal court, or as prisoners of war, protected by the Geneva Conventions — Obama has chosen instead to continue to operate outside the law, implementing Guantánamo-style tribunals at Bagram, and acknowledging that he wants the US courts to remain excluded because he is using Bagram as a prison for terror suspects "rendered" from around the world.
To gauge quite how disastrous this news is, imagine how former Vice President Dick Cheney is responding to it. Yes, that is indeed a smile playing over the lips of the architect of America's wholesale flight from the law in the wake of the 9/11 attacks. "I told you so," he mutters contentedly …
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK).
Obama admin fights Bagram detainee court access
By NEDRA PICKLER (AP)
WASHINGTON — The Obama administration argued late Monday that allowing terrorism detainees in Afghanistan to file lawsuits in U.S. courts challenging their detention would endanger the military mission in that country.
Although the Pentagon is giving the roughly 600 detainees at Bagram Airfield a new chance to challenge their detentions, the Obama administration stuck with Bush administration policy in a court filing Monday night that said the Bagram detainees' rights shouldn't extend as far as U.S. courtrooms.
In a filing with the U.S. Court of Appeals in Washington, the Justice Department said Bagram detainees should not be given equal rights to sue in the United States that the Supreme Court granted last year to detainees being held at the Guantanamo Bay facility in Cuba.
The administration argued in its brief that Bagram is in an active war zone and the sovereign nation of Afghanistan, and there are sensitive diplomatic considerations involving detainees held there. That's in contrast to Cuba, which has no diplomatic relations with the United States and does not have the security implications of a war zone, the administration said.
The filing was made in response to a ruling in April by U.S. District Judge John Bates, who said foreign detainees at Bagram should be allowed to sue in U.S. civilian courts to challenge their confinement. Bates said the cases of the Guantanamo and Bagram detainees were essentially the same — the first time a federal judge applied the Supreme Court's ruling on Guantanamo detainees to those held elsewhere in the world.
Bates' ruling was applauded by human rights organizations and drew a rebuke from congressional Republicans who said the judge, an Army veteran nominated by then-President George W. Bush, was endangering national security.
Obama's Justice Department has sided with the congressional Republicans and put forward the same argument as the Bush administration. It said in Monday's 85-page filing that allowing Bagram detainees access to U.S. courts would divert military personnel at Bagram and "have serious adverse consequences for the military mission in Afghanistan."
Bates' ruling "reverses long-standing law, imposes great practical problems, conflicts with the considered judgment of both political branches, and risks opening the federal courts to habeas claims brought by detainees held in other theaters of war during future military actions," the filing said.
The filing comes on the heels of media reports over the weekend that the Pentagon has a new policy for Bagram detainees to challenge their detentions before military review boards. The prisoners will be given a U.S. military official to serve as their personal representative to help argue their case and for the first time they will be able to call witnesses and submit evidence in their defense.
Bates had cited the Bagram detainees' lack of representation or access to evidence in his April ruling.
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