Obama Closed Bagram, so Why Not Guantánamo?

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With less than 18 months before the end of Barack Obama’s term as US president, the question of whether or not he will be able to keep his key election promise of closing the Guantánamo Bay prison camp has become topical. In recent weeks, the White House has announced a new plan to close the prison camp once and for all and to transfer all the prisoners – albeit to potential further indefinite detention without trial – the details of which will be unveiled in early September.

In December 2014, Obama achieved an equally significant victory, in the closure of Bagram prison in Afghanistan and the handover of all prisoners held there. The actions and attitude of the US government and military in the run up to the closure of Bagram contrast starkly to the attitude towards the Guantánamo Bay prisoners and demonstrates the wholly arbitrary nature of US detention policy under the so-called war on terror.

Bagram

Prisoners were first held at the Bagram airfield in early 2002. The facility, used as a processing centre for detainees, many of whom were sent to Guantánamo Bay, was supposed to be temporary. It quickly became synonymous with torture and extraordinary rendition. At least two prisoners are known to have been tortured to death at Bagram, as highlighted in the Oscar-winning documentary Taxi to the Dark Side. In 2004, when the US Supreme Court ruled that Guantánamo prisoners had habeas corpus rights the US stopped sending prisoners there. Instead, the population at Bagram started to swell.

During his first term as president, as Barack Obama attempted and talked about attempting to close Guantánamo, the detainee population at Bagram – largely Afghan – swelled to over 3000. Known formally as the Parwan Detention Facility, a new larger prison was completed in 2009. In 2010, the Red Cross reported the existence of a second secret facility at the site where detainees reported physical and sexual abuse.

Prisoners at Bagram have always been held secretly, many as “ghost prisoners“, without names or reasons for detention given. A completely illegal hellhole designed to avoid scrutiny, and thus with minimum publicity, Bagram detainees have fared far worse than those held at Guantánamo. Only the Red Cross has had access to the detainees. News of their numerous hunger strikes has not been reported.

Handover

Detainees at Bagram, many held for over a decade, were never able to challenge the basis or know the reasons for their detention due to the fact that unlike Guantánamo, Bagram falls under the sovereign jurisdiction of Afghanistan, not the US. The question of sovereignty was of particular importance to former Afghan president Hamid Karzai who insisted on the handover of all detention facilities to the Afghan National Security Force; he argued that although Bagram was intended to hold and deter “insurgents”, it was in fact the best insurgency recruitment tool.

An initial controversial Memorandum of Understanding (MoU) was signed by the US and Afghanistan in March 2012, which would see the facility formally handed over to Afghan control on 10 September 2012. The agreement circumvented the unconstitutional continuation of detention without trial by applying the Law of Armed Conflict (LOAC) and excluded hundreds of prisoners captured by the US after March 2012, as well as non-Afghan detainees. The Afghans were not particularly interested in the US’ foreign prisoners, but released a large number of the Afghan prisoners handed over and held without trial. Lengthy arbitrary detention without trial was always a sticking point.

In 2013, the two states signed a new MoU, which formally excluded detention without trial, and saw sovereign control of the prison handed over to Afghanistan on 25 March 2013. Non-Afghan prisoners, however, remained under US control. The US closed its part of the prison on 10 December 2014; another section is still run by the Afghans.

La guerre est morte, vive la guerre!*

NATO’s plan to withdraw from and end the war in Afghanistan by the end of 2014 was formally achieved with a ceremony in late December 2014. This was also an electoral pledge by the US president in 2012. Formally ending a war does not actually mean the end: in May 2014, Barack Obama announced that over 10,000 US troops would remain in Afghanistan, largely for counter-terrorism and training programmes, alongside troops from other NATO states.

In 2015, war in Afghanistan is far from over: with scant media coverage, this year has seen over 5000 civilian casualties in the first six months, including 1500 deaths and a rise in child casualties. The US is still very much involved, as evidenced by the death of at least 8 Afghan soldiers in a US air strike in July. The status quo remains highly lucrative for private contractors and the US military recently held its first Yoga Fest at Bagram Airfield.

One issue Obama did follow through on, however, as part of the formal end of hostilities, was the handover of all prisoners under its control. The terms for the US and NATO to remain in Afghanistan were largely contingent on the signing of a bilateral security agreement. Hamid Karzai had refused to sign it but within 24 hours of appointment, on 30 September 2014 the new Afghan government signed it. Under Article 3.3 of the agreement, the US military is no longer allowed to “maintain or operate detention facilities in Afghanistan”.

By this stage, there were only 13 foreign prisoners left at Bagram under US control, down from around 70 the previous year. Prisoners had been released largely to their countries of origin, mainly to Pakistan. This posed its own difficulties: releases to Pakistan, in May, August and September 2014 often resulted in further incarceration and abuse, and in some cases incommunicado detention and “disappearance”.

Days before the US announced the closure of Bagram, the US repatriated the last Pakistani prisoner; an unnamed detainee was also returned to Jordan and two Tunisians were transferred to Afghan custody.

Shifting Goalposts

Similar rules must also apply to Guantánamo Bay? If the formal end of hostilities in Afghanistan means the US can no longer hold prisoners indefinitely without charge there, Guantánamo prisoners must either be prosecuted immediately or released.

The argument that it would also be illegal to continue detention without trial under the Authorization for Use of Military Force (AUMF), following the formal cessation of hostilities, was first raised in 2013 by Kuwaiti prisoner Fawzi Al-Odah. His claim was dismissed as it related to future actions that were purely speculative at the time, although the judge was sympathetic to the idea that there was an “apparent” duty to release the prisoners.

More recently, on 30 July 2015, a federal judge rejected a petition by Yemeni prisoner Mukhtar Yahia Naji al-Warafi , who claimed that under the AUMF, there was no longer any legal basis for his continued detention following statements by Obama in December 2014 about the end of US combat in Afghanistan.

The judge contended that while the executive is in a better position than the judiciary to state whether or not hostilities have ended, the government may nonetheless “not always say what it means or mean what it says”: hostilities are still ongoing and the basis for detention lawful. Al-Warafi’s lawyer Brian Foster said the judge’s opinion is a “rubber stamp for endless detention”.

Similar applications are before the courts by Kuwaiti prisoner Fayiz Al-Kandari and Yemeni prisoner Moath Al-Alwi. All four men have been held at Guantánamo without charge or trial since 2002. Al-Odah was repatriated to Kuwait in November 2014.

The AUMF also provided the legal basis for detention without trial at Bagram and was questioned in previous legal challenges by Bagram prisoners, the most recent of which was cited by the judge in al-Warafi’s case.

Homeward Bound

Pressure from the Afghan authorities to close Bagram provided impetus, but does not explain the fate of Bagram’s prisoners. Concerning the large number of transfers over its final year, journalist Kate Clark stated that the “The recent rapid pace of transfers […] shows that it was lack of political will – from the US and often also from home countries – that has meant dozens of men being needlessly kept locked up for years.” Indeed, pressure in Pakistan was applied by the Justice Project Pakistan NGO, which is also seeking legal remedies for Pakistan’s remaining Guantánamo prisoners to be repatriated.

In the last few months of Bagram’s existence, similar questions to those raised about Guantánamo today were asked: where would the prisoners go, and would they remain incarcerated? Yet the US did something it is not willing to do for many of the current prisoners cleared for release at Guantánamo Bay: it sent them home.

Of the 52 prisoners at Guantánamo Bay cleared for release, the vast majority are from Yemen. In 2010, Barack Obama imposed a moratorium on returns to Yemen due to the fragile security situation there. This was raised in 2013 but there have been no returns to Yemen since. Instead, some have been sent to third countries. One Yemeni prisoner released to Kazakhstan in December 2014 along with two other Yemenis and two Tunisians died there in May due to poor post-release healthcare.

Although the security and humanitarian situation has tangibly worsened in Yemen in 2015, the situation in August 2014 did not prevent the US from repatriating two Yemeni prisoners, held as “ghost prisoners” for many years at Bagram; one of the men was suffering from leukaemia. Both were victims of extraordinary rendition; Fadi Al-Maqaleh was also tortured at Abu Ghraib and Amin Al-Bakri was kidnapped while on a business trip in Thailand. Imprisoned upon return to Yemen, they were soon released and reunited with their families.

In a number of such cases, prisoners were transferred before court hearings in the US on their cases, leaving the US government with no case to answer, such as the two Tunisians who were transferred to and jailed by the Afghan authorities just before Bagram closed. Details of the treatment of one of the men, Redha Al-Najar, were provided in the US Senate Torture Report, published one day before Bagram closed. With torture rife in Afghan prisons too, concerns about their safety were raised. On 30 June, Al-Najar and compatriot Lotfi Al-Ghrissi were both repatriated to Tunisia in a joint US-Afghan operation. They have been reunited with their families.

Why then does the US insist on finding third countries to host their compatriots who remain stuck in limbo at Guantánamo many years after being cleared for release? Safety on return issues have not prevented risky repatriations of Guantánamo prisoners to states such as Algeria in the past.

The “Russian Taliban”

The other set of Guantánamo prisoners considered more difficult to release are those deemed – after over a decade of detention without trial – to continue to pose a security threat to the US. Their possible detention, and even trial, in the US mainland has been consistently blocked by Congress. The threat allegedly posed by current Guantánamo prisoners appears exaggerated in a country whose lawmakers allow law enforcement personnel to shoot and kill citizens on a daily basis with impunity.

Tanzanian Ahmed Ghailani remains the only Guantánamo prisoner transferred for trial to the US mainland; he was convicted and given a life sentence in 2013. He had, however, been initially indicted in 1998 for involvement in embassy bombings in east Africa earlier that year.

Although there were no blocks on prisoners in Afghanistan being transferred for trial to the US, Russian national Irek Hamidullin is the only Bagram detainee to face such a trial. Captured in Afghanistan in 2009, he was held secretly as a “ghost prisoner” and most likely tortured; he attended his trial in a wheelchair. He was indicted on 15 charges of leading an attack on a US military base in Afghanistan which killed no US or Afghan military personnel; Hamidullin was the only survivor of 30 “Taliban insurgents”. He was indicted before a grand jury in October 2014 and transferred from Afghanistan to the FBI on 3 November 2014.

In a unique trial, involving terrorism charges against a foreign combatant in a civilian court, Hamidullin did not testify during his trial and his lawyers claimed there was insufficient evidence to back up the charges. He was convicted on all the charges and faces a possible life sentence later this year. This case may have no impact on Guantánamo prisoners, who have not been charged or tried in almost 14 years of captivity, but could affect individuals charged and brought to the US for trial under the US’ ongoing extraordinary rendition programme.

Yes You Can!

Bagram and Guantánamo are not the same, but there is much common ground. The shameful history of the past 14 years has already occurred, and is already written: Obama broke his promises time and again. Closing Guantánamo is not about legacies and reputation; it is about justice and the principles of law and fairness all modern states would like to claim they uphold. It is about ending arbitrary and indefinite detention without trial and the torture associated with prisons such as Bagram and Guantánamo.

In closing Bagram, Barack Obama has shown this can be achieved without always merely shifting the problem elsewhere. Guantánamo is not a geography problem: shifting indefinite detention there to elsewhere is not a permanent solution. Transferring prisoners to third states is not always a long-term solution either. As Bagram has shown, it is not about tough talk but concrete actions.

It is also worth bearing in mind that the closure of Guantánamo and Bagram offers no reassurances the US is not still holding detainees indefinitely without trial and in inhumane conditions elsewhere. Given the secrecy that constantly shrouded detention at Bagram, there is a high likelihood that many prisoners remain unaccounted for.

* French for “war is never ending”