On January 15, 2010, the Pentagon released the first-ever list of prisoners held in the Bagram Theater Internment Facility, the main US prison in Afghanistan for the last eight years. An annotated version of the list is available here.
For those who fear that there are hundreds of prisoners in Bagram who have been held for many years, the limited information provided by the list is somewhat reassuring. Of the 645 prisoners listed, all but a hundred or so were seized in the last two years. There is a caveat, however. Based on the numbering system used, it appears that a total of 3,000 prisoners have been held at Bagram since the last of the regular prisoners were transferred to Guantanamo in November 2003, but although some have been freed – as part of an essentially inscrutable review process – it is not known how many others have been transferred either to Afghan custody (under a similarly inscrutable arrangement) or to Block “D” of Kabul’s main prison, Pol-i-Charki.
Refurbished by US forces in early 2007, Block “D” is where 45 of the 46 Afghan prisoners repatriated from Guantanamo since August 2007 have ended up. The one exception is Mohamed Jawad, released last August, who won his habeas corpus petition in a US court, but the other 45 have been subjected to equally opaque policies regarding their continued detention, and decisions about whether they should be tried or released, and, if the former, whether trials should be based on anything other than dubious “evidence” recycled from Guantanamo. The overriding question about Block “D” – which lawyers are hoping to test in US courts following the recent transfer of four Afghans from Guantanamo – is whether Block “D” is under Afghan or American control.
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Despite these small reassurances about Bagram, I would not like to give the impression that all is well with the prison. The length of time that the majority of the 645 men have been held may appear to be quite reasonable – between one and two years – but this is supposed to be a prison in a war zone, and those detained should be screened on capture to make sure that they have not been seized by mistake, and then held for the duration of hostilities. Instead, there is every indication that prisoners are, in general, seized according to the defining characteristics of the “War on Terror,” as played out in both Iraq and Afghanistan – indiscriminate dragnets and raids based on often dubious intelligence – which not only fail to win “hearts and minds,” but also demonstrate a unilateral (and illegal) reworking of the Geneva Conventions.
The Geneva Conventions and the Prevention of Torture
If there is any doubt about a wartime prisoner’s status – because he is not wearing a uniform, for example – he is entitled to an Article 5 competent tribunal, held close to the time and place of capture, at which he can call witnesses. The US military pioneered these tribunals from Vietnam onwards, and was preparing to undertake them in December 2001, when the prisons at Kandahar and Bagram opened, until orders came from on high that, in the “war on terror,” they were unnecessary. In its extraordinary arrogance and contempt for the law, the Bush administration decided that no screening was required, and that it was sufficient for the president to declare that, on capture, all the men were “enemy combatants,” who could be held indefinitely without any rights whatsoever.
The purpose – as became apparent at Guantanamo, when President Bush declared that the Geneva Conventions did not extend to those held in the “war on terror” – was not to keep men off the battlefield for the duration of hostilities, but to provide the lawless conditions in which they could be interrogated for “actionable intelligence.” The result, as has been chronicled as Guantanamo, at Bagram, at Abu Ghraib and in the secret prison network, was a torture regime, purportedly sanctioned by memos written by lawyers in the Justice Department’s Office of Legal Counsel, which claimed to redefine torture for the use by the CIA, or, in the case of the military, through “enhanced interrogation techniques” approved by Defense Secretary Donald Rumsfeld for use at Guantanamo, which later migrated to Iraq.
In many ways, these techniques were first conceived at Bagram, where the use of sleep deprivation and brutal stress positions (the “strappado” technique, or “Palestinian hanging”) was widespread, and the regime was so brutal that, in 2002, at least two prisoners (and possibly as many as five) were murdered in US custody.
Despite official claims that the conditions at Bagram have improved in the years since, a BBC report in June 2008, based on interviews with men held in the prison between 2002 and 2008, found that only two “said they had been treated well,” while the rest complained that “they were beaten, deprived of sleep and threatened with dogs.” In “Undue Process,” a Human Rights First report published in November 2009, a distinction was made between those held in Bagram’s early years, and those held since 2006, when, as the report noted, ex-detainees “described significantly better treatment than those captured earlier, but some still told of being assaulted at the point of capture and being held in cold isolation cells for several weeks after their capture.”
Moreover, in October 2009, during a panel discussion following the launch of the new Guantanamo documentary, “Outside the Law: Stories from Guantanamo,” former prisoner Omar Deghayes explained how his Pakistani brother-in-law was recently captured on a visit to Afghanistan and ended up in Bagram. As Omar described it, his brother-in-law’s wife, who was allowed to talk to her husband through a videophone system established by the International Committee of the Red Cross in early 2008, reported “how horribly and badly tortured he was, how he had marks on his eyes and was really badly battered.”
Importing Guantanamo-Style Reviews to Bagram
In an attempt to stifle dissent – and, it seems, as part of a cynical maneuver to encourage the Court of Appeals to reverse the habeas victories last March of three foreign prisoners who were rendered to Bagram from other countries – the Obama administration announced last September that it was introducing a new review process for the Bagram prisoners. Submitted in court documents relating to the government’s appeal, the proposals, for the first time, allowed prisoners to call witnesses in their defense.
This was an improvement, because, until 2007, there was no formal review process at all, and as District Court Judge John D. Bates noted last March, when he granted the habeas corpus petitions of the three foreign prisoners rendered to Bagram, 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 Guantanamo” (the Combatant Status Review Tribunals, the one-sided review process convened in 2004-05, which the Supreme Court found inadequate in Boumediene v. Bush, the June 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights).
With incredulity, Judge Bates noted that the Bagram prisoners are not even allocated a personal representative from the military, as happened during the CSRTs at Guantanamo, and also noted that, although they are allowed to represent themselves:
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 appeared to be a direct response to Judge Bates’ damning criticisms, the Obama administration announced that, under the new rules, each prisoner would be assigned a US military official to represent him (as happened at Guantanamo), and that prisoners would also have the right to call witnesses and present evidence when it is “reasonably available” (as also happened at Guantanamo, even though no foreign witness was ever summoned to Cuba to testify).
It was also announced that the boards would determine whether prisoners should be held by the United States, turned over to Afghan authorities or released, but although the proposals included a promise that, “For those ordered held longer, the process will be repeated at six-month intervals,” the unilateral flight from the Geneva Conventions was confirmed not only in the decision to export Guantanamo’s discredited tribunal system to Bagram, but also in a section detailing how prisoners would be treated on capture.
As the submission explained, new prisoners would be subjected, on capture, not to Article 5 tribunals, but to cursory reviews by “the capturing unit commander” and by the commander of Bagram to ascertain that they “meet the criteria for detention.” Moreover, the DoD insisted that it was not merely holding prisoners “consistent with the laws and customs of war,” but was also holding those who fulfill the criteria laid down in the 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.
This is depressingly close to the “new paradigm” of warfare introduced by Bush and Cheney, and it is, perhaps, no surprise that, as criticisms began to mount, the administration strategically announced that it was in the process of transferring control of Bagram to the Afghan government. It remains to be seen how swiftly the proposed transfer will occur, but it is unsurprising that the announcement has been made, for two reasons: firstly, because it diverts attention from current US policy, and secondly, because, as with the Status of Forces Agreement (SOFA) in Iraq, it allows the US government to abdicate all responsibility for the mistakes it has made. Signed in November 2008, the SOFA in Iraq has led to the transfer of thousands of prisoners in US control to the custody of the Iraqi government, even though what awaits them is not a review of whether their detention by US forces was a mistake, but the chaos of the Iraqi judicial system.
This is depressingly cynical, of course, but what makes it even worse is a reasonable assumption that the transfer of Bagram to Afghan control will not include the transfer of any prisoners regarded as significant. For these men, the likelihood is that the US government will retain control of a secretive “black jail” within Bagram airbase, exposed by The Washington Post and The New York Times in November 2009, and will continue to seize men in nighttime raids, sending them either to this facility, or to one of nine “Field Detention Sites” on military bases, “often on the slightest suspicion and without the knowledge of their families,” as Anand Gopal reported in a ground-breaking exposé last week, which revealed the extensive torture and abuse of those held.
Gopal’s account is not the only insight into the dark realities of current US detention policies in Afghanistan, beyond Bagram, beyond the Geneva Conventions, and, it seems, beyond the law. Late last year, a reliable Afghan source informed a lawyer friend of mine that there were, at the time, about two dozen secret facilities in Afghanistan, including three or four in Herat, four or five in northern Afghanistan, and three or four in Kabul. According to this source, the majority were US facilities, although a few were run by the National Directorate of Security (NDS), the Afghan government’s domestic intelligence agency, and a few others were run by the Afghan Army. The source added, “They are all worse than Bagram. All contain a mix of combatants, criminals and totally innocent persons. The main difference is that those at the US prisons are fed better. No one has any rights.”
In addition, just last week, in response to my recent articles, a military insider let me know that, “Not only were there facilities in Bagram, but in Kandahar and Salerno as well. Saw them firsthand between 2006 and 2009, but was told not to speak of the jails.” These, it was noted, were “unsanctioned facilities,” which were off-limits to the International Committee of the Red Cross.
As eight years of Bush, Cheney and Rumsfeld should have taught us, once you abandon the Geneva Conventions, all that lies beyond is secrecy and torture. The Obama administration has certainly tinkered with the Bush administration’s legacy, but as the stories of Bagram, the “dark jail” and the network of secret facilities demonstrate, tinkering threatens only to drive the dark truths further underground, and what is needed is the courage to thoroughly repudiate the brutal practices at the heart of the “war on terror.”