Obama Considers Repatriating Foreign Prisoners from Bagram

31.1.12

Ten years ago, foreign prisoners, seized in other countries, began to arrive in the US prison at Bagram airbase in Afghanistan. Some were held in a secretive part of the prison, and had often passed through other secret facilities in Afghanistan or elsewhere. The majority of these prisoners ended up in Guantánamo, but some were stealthily repatriated at various times. Others, however, continued to be held, beyond the rule of law.

The prison never conformed to the Geneva Conventions, which were, essentially, discarded when the Bush administration decided to hold prisoners in its “war on terror” as “illegal enemy combatants,” and have never been reinstated. Moreover, the prisoners remained beyond the law even when the Supreme Court granted habeas corpus rights to the Guantánamo prisoners in June 2004, and again in June 2008, after Congress had tried to remove these rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 (PDF).

In March 2009, in Washington D.C., District Judge John D. Bates briefly brought this era of secrecy and unaccountability to an end, granting the habeas corpus petitions of three foreign prisoners — Redha al-Najar, a Tunisian seized in Karachi, Pakistan in May 2002; Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand in late 2002; and Fadi al-Maqaleh, a Yemeni seized in 2004.

Although Judge Bates ruled that the habeas corpus rights granted by the Supreme Court to the Guantánamo prisoners extended to the foreign prisoners in Bagram, because “the detainees themselves as well as the rationale for detention are essentially the same,” the Obama administration appealed, and had its appeal granted by the D.C. Circuit Court in May 2010.

This ruling failed to take into account that Judge Bates had not ruled in favor of a fourth man, Pacha Wazir (aka Haji Wazir), an Afghan, deciding that the fate of Afghan prisoners ought to involve negotiations between the US and Afghan governments. Wazir, it turned out, had been seized in the United Arab Emirates, where he ran a chain of hawala banks, in 2003, and rendered to a CIA black site prior to his arrival at Bagram, on suspicion that he was a banker for Osama bin Laden. In June 2011, former CIA interrogator Glenn Carle wrote a book, The Interrogator: An Education, in which he explained that he had established that Wazir was not bin Laden’s banker, but stated that his findings were ignored, and Wazir was not released from Bagram until February 2010.

For the other prisoners, Judge Bates also found that the review process introduced under President Bush at Bagram was both “inadequate” and “more error-prone” than the review process introduced at Guantánamo, and, also found that it “falls well short of what the Supreme Court found inadequate at Guantánamo.” In response, the Obama administration introduced a review process modeled on the review process at Guantánamo that the Supreme Court found inadequate, and this is the process that has been used ever since to decide what should happen to the 645 prisoners who were held in September 2009 (according to the first unclassified prisoner list, released in January 2010), and the thousands of prisoners held in the last two and a half years.

By January this year, the Washington Post reported that 2,600 prisoners were held in Bagram — or, more specifically, in the replacement facility, renamed the Parwan Detention Center, which opened in December 2009. In addition, as the Post described it on January 5, President Karzai “called for the United States to hand over its biggest military prison in Afghanistan within a month,” stating that “Afghan government investigators had found violations of the Afghan constitution and international human rights conventions at the prison.” He “did not provide details of the alleged violations, but he said in a statement that they constituted a ‘breach of Afghan sovereignty.’”

President Karzai was drawing on a US memorandum publicly issued two years ago, in which officials stated that they expected the Parwan facility to be transferred to Afghan control in early 2012, although US officials have pointed out that any proposed transfer is subject to “demonstrated capacity,” and the Afghan government does not have a good track record to date.

Nevertheless, in sounding out the possibilities of closing the Parwan facility, the Obama administration is finally addressing the problems presented by the foreign prisoners. A year ago, Daphne Eviatar of Human Rights First visited Parwan and discovered that 41 prisoners came from outside Afghanistan, and were still held, even though “more than a dozen” had been recommended for release. One story she heard concerned Hamidullah Khan, a Pakistani who was just 16 years old when he was seized in the summer of 2008. When he was allowed to communicate with his family, in 2010, he explained that his case had been reviewed, and he had been recommended for release, but he was still held.

Eviatar added that the foreign prisoners were “from Pakistan, Tunisia, Kuwait, Yemen and even Germany,” but could not find any explanation for why, even when cleared, they were still held. She noted that “one soldier complained about how frustrating it is to be unable to tell innocent prisoners when they’ll be going home, or what’s causing the holdup,” and that US officials in Afghanistan had only been able to state that the problem was “somewhere in Washington.”

In the Washington Post last week, Peter Finn and Julie Tate reported that Washington was finally dealing with the problem. Noting that the foreign prisoners now “number close to 50″ and “were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to US and foreign officials,” they wrote that, with a handover of the prison now on the cards, “American officials believe that Afghan authorities are unlikely to have any interest in either continuing to hold the foreigners or in putting them on trial.”

The officials added that, by starting the process of repatriating foreign prisoners now, they were hoping not only to successfully “negotiate transfers with the detainees’ home countries,” but also to “arrange for post-transfer monitoring, and secure diplomatic assurances that detainees will not be abused when they return home.”

They added that a “small number” of those currently held “may be deemed to pose a terrorist threat, requiring their continued detention or close supervision by their home country if released,” and also explained that some of the men are Yemeni, “complicating their possible repatriation,” because, in response to the failed airline bomb plot in December 2009 by Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, President Obama issued a moratorium on releasing any Yemenis, “because of concerns about the security situation in Yemen,” which still stands to this day.

As the Post described it, the Parwan prison holds “up to two dozen Arabs of various nationalities, according to administration and foreign officials,” although the rest are Pakistanis, and it was noted that the first to be released may well be one of these men, Yunus Rahmatullah.

Seized in Iraq by British Special Forces in 2004, he was subsequently handed over to US forces and rendered to Bagram by the CIA, where his detention went largely unnoticed until lawyers in the UK — at solicitors Leigh Day & Co. and the legal action charity Reprieve — succeeded in convincing the Court of Appeal to grant him a writ of habeas corpus and to order the British government to take custody of him. As the Post described it, his lawyers “argued in the British courts that the transfer violated a memorandum of understanding between the US and British militaries, and was a grave violation of the Geneva Conventions because it involved the removal of a civilian from the war theater.” The judges added that if foreign secretary William Hague and defense minister Philip Hammond failed to secure his release, the court would “be moved to commit you to prison for your contempt in not obeying the said writ.” A deadline of February 14 was set for Rahmatullah’s release.

The UK government has appealed the ruling, although ministers have asked for the Obama administration to arrange for Rahmatullah to be returned to Pakistan, which, as the Post put it, “would satisfy the court and his lawyers.” The British court also made a point of noting that, back in 2010, a review board at Bagram had cleared Rahmatullah for release.

Cori Crider, Reprieve’s legal director, said, “It would make no sense for the Obama administration to ratify this Bush-era war crime. Under the Geneva Convention, Yunus Rahmatullah is Britain’s responsibility and should never have been sent to Bagram in the first place. The man is cleared, his family are waiting, and Pakistan is apparently happy to have him — it’s high time to send him home.”

The Post noted that another Pakistani, Amanatullah Ali, who was also picked up by British forces in Iraq, is seeking his release through the US courts, and that seven Pakistanis in total, including Yunus Rahmatullah and Hamidullah Khan, are suing the Pakistani government “either for its alleged role in their capture or for failing to secure their release.”

US officials, stating that they were prepared to release Rahmatullah, nevertheless played down the role of the British court, and also “said that any transfer home has been complicated by the deterioration in relations between the United States and Pakistan.” One official said, “We will do this on our timetable.”

However, it appears that this is not entirely true, and that the days of holding prisoners at Bagram whether or not they have been cleared for release — as at Guantánamo, where 89 of the remaining 171 prisoners have been cleared, but are still held — are coming to an end. For the foreign prisoners held at Bagram without rights for up to ten years, the potential end of this long-running saga of injustice is to be welcomed.

POSTSCRIPT: At the time of publication, an Internet search revealed to me that I had missed an Associated Press story from last April in which it was reported that Amin al-Bakri, Redha al-Najar and Fadi al-Maqaleh had all been cleared for release from the Parwan prison.

The AP noted that al-Bakri, who was 42 years old, had a review board hearing in August 2010, and, in October, “was handed a paper saying he was going to be released to his home country,” but in April 2011 he was still seeking his release via the US courts. Ramzi Kassem, a law professor at the City University of New York who filed the appeal, said, ”Amin has been there for almost a decade of his life,” adding that he “should never have been there in the first place. He has never been a threat to the United States.”

The AP also reported that Redha al-Najar, who was 45 years old, had been cleared for release to Tunisia. His lawyer, Tina Foster of the International Justice Network, “said she learned through al-Najar’s family that the military planned to release him and send him to Tunisia, his country of birth, instead of Pakistan where he was picked up,” but added that he did not want to go to Tunisia. Foster also explained that Fadi al-Maqaleh had also been cleared for release but was still being held.

In addition, the AP report noted: “Also waiting to walk free is Jan Sher Khan, who has been detained for six years. He was 15 when he disappeared from his village near Kohat, Pakistan, in the spring of 2005. He never came home from classes at his high school and ended up at Bagram. According to court papers filed seeking his release, his family believes he was seized by someone seeking thousands of dollars in reward money advertised for the capture of suspected members of al-Qaida or the Taliban. On Jan. 10 [2011], the US government confirmed that Khan had been cleared for release.”

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

12 Responses

  1. Andy Worthington says...

    On Facebook, Charmaine Dolan wrote:

    Hope so Andy!

  2. Andy Worthington says...

    Natalia Rivera Scott wrote:

    He’s had three years to “consider” this “uncomfortable” matter…maybe he should take action and release this people…or is he going to wait any longer?

  3. Andy Worthington says...

    Thanks, Charmaine and Natalia, and everyone who has liked and shared this. And yes, Natalia, you’re right to ask what President Obama is doing, why people cleared for release for two years or more haven’t been released from Bagram, and why he put up such a fight to overturn Judge Bates’s reasoned, well-balanced ruling back in March 2009 that the foreign prisoners should have habeas corpus rights. And it’s all so reminiscent of Guantanamo, where cleared prisoners are also not released. It’s disgraceful, isn’t it, or have I missed something here?

  4. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m digging and sharing this, Andy.

  5. Andy Worthington says...

    Thanks, George. Good to hear from you.

  6. arcticredriver says...

    Thanks Andy

    Can I share an article I just came across?

    http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202540170396&Rethinking_American_Taliban_John_Walker_Lindh&slreturn=1

    I had never heard of the author, Jesselyn Radack, currently a law professor, but a DoJ ethics advisor in 2001 and 2002. I think she makes some extremely telling points about the disproportionality of John Walker Lindh’s 20 year sentence, and the lack of charges against the five Taliban who may be released soon. She also contrasted his sentence with the release without charge of Yasser Hamdi.

  7. Andy Worthington says...

    Fascinating. Thanks, arcticredriver. I look forward to reading that, as the Lindh case remains a disgrace. Jesselyn Radack, btw, was a DoJ whistleblower, because of impropriety in the government’s handling of the Lindh case, and she took a brave stand early on in the “war on terror,” when that was a dangerous thing to do. To quote Wikipedia, she is “a former ethics adviser to the United States Department of Justice who came to prominence as a whistleblower after she disclosed that the Federal Bureau of Investigation (FBI) committed an ethics violation in its interrogation of John Walker Lindh (the ‘American Taliban’ captured during the 2001 invasion of Afghanistan), without an attorney present, and that the Department of Justice attempted to suppress that information.”

  8. arcticredriver says...

    Andy, with regard to the inexplicable bureaucratic delay in actually releasing the men cleared for release — I can’t remember which of the big reports I read it in — but buried in one of the reports on Abu Ghraib there was some pretty surprising information about the release of men from there.

    There was a committee, consisting of Janis Karpinski, Abu Ghraib’s commandant, Colonel Marc Warren (?), the senior lawyer in Iraq, and General Barbara Fast, the senior military intelligence official in Iraq, release recommendations could only be authorized by all three of these officers, meeting in committee.

    According to the report, the three met very intermittently. According to the report one of the problems was that three officers didn’t get along.

    What the US was doing, at the time, was conducting sweeps of whole neighbourhoods, seizing all the military age men and boys, presumably on the “mosaic” notion. Leaving aside this technique being very unjust, it would be very wasteful and counterproductive unless the vast majority of these individuals who were innocent bystanders were quickly interviewed, cleared, and released. But what the record showed was that rather than interview, clear and release the innocent bystanders within hours, the number of captives the US held would slowly swell, double, triple in numbers, over the course of months, and then there would be a massive release of half, two-thirds or three quarters of the US’s captives — 5,000 or 10,000 or 15,000 individuals.

    I am sure what was happening was that Karpinski, Fast, and Warren kept failing to hold the committee meeting required to authorize the release of cleared captives, and that their failures to meet went on for months. Men who should have been released essentially right away (probably never should have been seized in the first place) weren’t held over night, they were held for months.

    The cruelest thing is that they couldn’t have meaningfully reviewed 5,000 individual cases in a single meeting. Even if they had met daily I doubt they could have meaningfully reviewed all the release recommendations — and that this should have been delegated to their deputies in the first place.

    I see Sanchez at being at fault here as well. He should have noticed how the captive population kept swelling to unmanageable levels.

    The situation for the Guantanamo captives may be worse than that for the US’s captives in Iraq, as there are still key people who subscribe to the meme that they are all “the worst of the worst” — or who subscribe to the “one percent doctrine”. No one wants the responsibility of releasing the next 9-11 hijacker or suicide bomber. One problem with the one percent doctrine is that if everyone strains at gnats to follow the one percent doctrine, the end result is a 0.1 percent doctrine, or 0.01 percent doctrine, or 0.001 percent doctrine.

  9. Andy Worthington says...

    Thanks again, arcticredriver. I think what’s telling about this is how the decisions made at Parwan have to be approved in Washington, which is where they get frozen in the bureaucracy of an administration that has progressively become ore and more timid wen it comes to releasing anyone, as we have also seen with Guantanamo.

  10. Tom says...

    Here’s an idea. Instead of innocent foreign detainees at Guantanemo, what if these people were Americans or Brits and were proven innocent? Would we have the same public response?

  11. Andy Worthington says...

    That’s a great rhetorical question, Tom!

  12. The Bagram Detainees – Pakistanis Out Of Place | Seasons Of Fiery Roses: The Struggle For Justice In Pakistan says...

    [...] beyond the reach of the law. As the lawyer and legal activist Andy Worthington, in a piece called Obama Considers Repatriating Foreign Prisoners From Bagram, [...]

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