Justice Obstructed at Bagram as at Guantanamo: Ten Years Is Too Long!

Despite ten years of occupation and untold millions of dollars spent on rebuilding Afghanistan’s broken judicial and criminal justice system, the Afghan courts are “still too weak,” the Washington Post reported on August 12, for the United States to relinquish its control over the Parwan Detention Center on Bagram Air Base in Afghanistan. On September 21, the same paper reported that the U.S. military is seeking contractors to significantly increase the capacity of the prison there.

The number of Afghans detained at Bagram has tripled over the past three years to more than 2,600 and the new construction will raise the capacity to 5,500 prisoners. Capt. Kevin Aandahl, a spokesman for the U.S. task force that oversees detention operations in Afghanistan, told the Post that the expansion was necessary to “accommodate an increase in the number of suspected insurgents being detained as a result of intelligence-based counter- terrorism operations, which we conduct with our Afghan partners.”

Many of those held at Bagram have been there since the U.S. occupied the former Soviet air base in 2001, and some two thirds of prisoners there have not been charged with or convicted of any crime. Corruption is rampant in Afghan courts and among police there as it is in many other places but the major fear of the United States is not that the Afghan courts will not function according to their constitution and accepted norms of law, but that they will. In order for Afghanistan to take sovereignty over its own judiciary and prison system, the Afghans must first fix the “cracks of an undeveloped legal system” and adopt essential “reforms,” including adoption of the U.S. practice of detaining suspected insurgents indefinitely without trial.

Included among the “weaknesses” of Afghan law that the United States needs to see addressed is a guarantee that a prisoner in Afghanistan must be formally charged with a crime within three days or be released. To be convicted of a crime, Afghan law requires that evidence against a defendant be presented in open court and that hearsay evidence and evidence gained by torture be excluded. (How primitive is that!) Such protections exist, on paper at least, in most countries, and the U.S. Constitution guarantees these rights as well. A more mature and robust legal system such as our own, however, U.S. officials seem to suggest, can be counted on to set aside such protections to “deal with the demands of wartime criminal justice.”

Just as with the detainees held for these past ten years at the U.S. prison at Guantanamo in Cuba, few of those held at Bagram would be convicted in a fair trial. Most have been captured on the strength of tips by informers and other hearsay and with no forensic evidence. “Right now,” a senior U.S. official is quoted in a January 30, 2011 article published in the Guardian, “if we turned them over to the Afghans tomorrow, they'd be in a position, under their laws and their constitution, that they may be released.”

While the number of prisoners held at Guantanamo is slowly decreasing, the number of those held at Bagram is skyrocketing, due to increased “intelligence-based counter- terrorism operations,” a euphemism for what are more accurately called night raids. The Open Society Foundations and The Liaison Office in Kabul released a report on September 19, “The Cost of Kill/Capture: Impact of the Night Raid Surge on Afghan Civilians.” In their Executive Summary, the reports’ authors state, “Nighttime kill and capture operations (“night raids”) by international military have been one of the most controversial tactics in Afghanistan. They are as valued by the international military as they are reviled by Afghan communities. Night raids have been associated with the death, injury, and detention of civilians, and have sparked enormous backlash among Afghan communities. The Afghan government and the Afghan public have repeatedly called for an end to night raids.”

This report cites a sharp escalation in raids that has “taken the battlefield more directly into Afghan homes sparking tremendous backlash among the Afghan population.” While civilians not directly participating in hostilities are supposed to be protected from such attacks by the Geneva Conventions, these raids are often “heavily (if not primarily) motivated by intelligence gathering.” One U.S. military officer responsible for authorizing night raids explained, “If you can’t get the guy you want, you get the guy who knows him.” Often in night raids, all male adolescent and adult members of a household or even of a whole village are bound and held, and techniques such as masked informants giving thumbs up or down, noting who has a beard or who lacks the calloused hands of a farmer, are used to decide who is taken to a U.S. base for further questioning. Such are the “intelligence-based counter- terrorism operations” that are taxing the capacity of the U.S. prison at Bagram.

After gutting its own constitution in the name of a “war on terror,” the United States is now adding to the injury and insult of a brutal occupation by demanding of the Afghan government that it pledge to be as lawless as the U.S., to continue our oppression of its people in our absence before we will give them sovereignty over their own judicial system.

Ten years ago this month the United States attacked and occupied Afghanistan and began a system of illegal and irrational detention at Bagram that on January 11, 2002, was exported to Guantanamo. Ten years is far too long. Our first concern needs be for those harmed by our nation’s policies, those who suffer torture and deprivation of liberty in places like Bagram and Guantanamo and their families and communities. We need be concerned as well for what happens to us, to our souls, to our schools, churches, to our nation, if we stand silent in the face of such crimes done in our name. It is time to rise up anew to say no to torture and call for the closure of Bagram and Guantanamo, accountability for the torturers, and justice for the victims of U.S. abuse.

Please consider joining human rights organizations, legal collectives, grassroots groups, and people of conscience in Washington on January 11, 2012 for a protest against U.S. detention policies, rallying to form a human chain from the White House to Congress and to demand real change — by far the biggest such demonstration since the “War on Terror” began.