Justice extends to Bagram, Guantánamo’s Dark Mirror


Since coming to power in a blaze of reforming glory, promising to close Guantánamo within a year, to stop the CIA from running offshore torture prisons, and to restore the Geneva Conventions to prisoners seized in wartime, the Obama administration has proceeded to make a number of poor decisions in relation to its predecessors’ reviled “War on Terror” policies.

One was the decision to invoke the state secrets privilege to quash a lawsuit against Boeing subsidiary Jeppesen for its role as the CIA’s travel agent in a case brought by a number of prisoners subjected to “extraordinary rendition,” although this was understandable if the floodgates were not to be opened with regard to everyone involved in the Bush administration’s lawless policies rather than, say, the senior officials who authorized the crimes. Another, I believe, was the refusal to substantially redefine the terms of reference for “enemy combatants,” while the administration was scoring a propaganda point by dropping the use of the term.

There are, of course, many challenges to come — not least, the question of prosecutions for senior officials (from President Bush down), which Obama is clearly unwilling to tackle — but so far the poorest decision came in February, when, in its first response to habeas corpus claims filed on behalf of four prisoners held in the US prison at Bagram airbase, the Justice Department responded to a request by District Court Judge John D. Bates, asking if the new administration would like to review the position maintained by the Bush administration — essentially, that the prisoners in Bagram have no rights — by stating simply, in a one-paragraph response, “This Court’s Order of January 22, 2009 invited the Government to inform the Court by February 20, 2009, whether it intends to refine its position on whether the Court has jurisdiction over habeas petitions filed by detainees held at the United States military base in Bagram, Afghanistan. Having considered the matter, the Government adheres to its previously articulated position.”

What made this decision so poor was that the situation in which these men found themselves was essentially the same as that experienced by the prisoners in Guantánamo. The men in question — Redha al-Najar, a Tunisian seized in Karachi, Pakistan, Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand, Fadi al-Maqaleh, a Yemeni, and Haji Wazir, an Afghan businessman seized in the United Arab Emirates — were all captured between five and seven years ago, and transferred to Bagram, where 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.

Moreover, what made the Bagram prisoners’ situation even worse was that, whereas the prisoners in Guantánamo had, over the years, secured habeas corpus rights (the right to challenge the basis of their detention in a court) and the right to meet with and be represented by lawyers, none of these privileges had been extended to the prisoners in Bagram. Their isolation meant that, increasingly, the prison in Afghanistan — which was, and is, under the complete control of the US military — was nothing less than Guantánamo’s Dark Mirror, or, as Judge Bates suggested in a review of the men’s cases in January, “a ‘black hole’ for detainees in a ‘law-free zone.’”

At the time, Judge Bates was only hinting that he thought it might be necessary to extend habeas rights to these particular prisoners in Bagram. In February, of course, the Obama administration thought that it had crushed his nascent dissent, when it declared, with an imperiousness that was reminiscent of Dick Cheney and David Addington, that the reach of the law did not extend to Bagram.

However, last Thursday, after studying closely the differences between the prisoners held at Bagram — in other words, between foreigners captured in other countries and “rendered” to Bagram, Afghans captured in other countries and “rendered” to Bagram, and Afghans captured in Afghanistan — Judge Bates ruled (PDF) that the habeas rights granted by the Supreme Court to the Guantánamo prisoners last June in Boumediene v. Bush also extended to the foreign prisoners in Bagram, because, as he explained succinctly, “the detainees themselves as well as the rationale for detention are essentially the same.”

What this involved, to recap on Boumediene, was that the government had no right to revoke the Suspension Clause of the US Constitution, under the Military Commissions Act of 2006, to prevent the prisoners from seeking “the protection of the writ of habeas corpus,” because, as the Supreme Court made clear, “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”

The Supreme Court also noted that “the Judiciary — not the Executive — must decide when and where the Suspension Clause applies,” and, also drew on a case from 1803, which stated, “The writ of habeas corpus itself is an indispensable mechanism for monitoring the separation of powers …The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain.”

Judge Bates added that the military’s justification for holding the prisoners at Bagram involves a review process that is both “inadequate” and “more error-prone” than the tribunal process used at Guantánamo (which has, of course, been condemned by former officials who worked on it, including, in particular, Lt. Col. Stephen Abraham), and concluded that the US military’s control over Bagram “is not appreciably different than at Guantánamo.”

His précis of the review process was, in fact, genuinely disturbing, as he quoted from a government declaration which stated that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram does 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.” In addition,

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, Bagram detainees receive no review beyond the UECRB itself.

This Court need not determine how extensive the process must be to stave off the reach of the Suspension Clause to Bagram. It suffices to recognize that the UECRB process at Bagram falls well short of what the Supreme Court found inadequate at Guantánamo.

Judge Bates also explained 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 with the Supreme Court’s ruling in Boumediene, Judge Bates was also concerned by the length of time that the prisoners have been held without an adequate review of their cases. As he explained, “the Supreme Court’s observation in Boumediene is equally powerful here: ‘the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.’”

Nevertheless, although Judge Bates ruled that the three foreign prisoners could challenge the basis of their detention, he refused to extend habeas rights to the Afghan prisoners who make up the majority of the 670 or so prisoners held in Bagram, agreeing with the government’s claim that to do so would cause “friction” with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government. As a result, he also refused to extend habeas rights to Haji Wazir, even though he was captured outside Afghanistan, although he did not dismiss his claim outright, and wondered whether there was any other mechanism whereby he might seek habeas relief.

On SCOTUSblog, Lyle Denniston noted that this part of the ruling “seemed to suggest a potential impact of the ruling for detainees in places other than Bagram,” as Judge Bates stated that one possible route, about which he requested further briefing, involved ascertaining whether Congress “usurped” the constitutional authority of the federal courts, in the Military Commissions Act of 2006, when it prohibited habeas claims by any prisoner in US custody, anywhere in the world, who was held as an “enemy combatant.”

In conclusion, then, this was an extraordinarily important result for those who have been struggling for years to secure rights for the prisoners in Bagram –- in particular, Tina Foster and Barbara Olshansky of the International Justice Network, who first filed the cases in October 2006. Judge Bates gave the government until April 23 to respond to his question about Congress usurping the federal courts’ constitutional authority, and gave Haji Wazir’s lawyers until May 7 to respond to the government’s brief. As for Redha al-Najar, Fadi al-Maqaleh and Amin al-Bakri, their cases now move to a detailed review, with Judge Bates taking the cases of al-Najar and al-Maqaleh, and Judge Ellen Segal Huvelle taking the case of al-Bakri.

Expect sparks to fly, as, in addition to being held for up to seven years without charge or trial, it appears that some, if not all of these men passed through a secret prison network in Afghanistan, which involved brutal torture, before they even arrived at Bagram.

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). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com, CounterPunch and ZNet. Also cross-posted on Common Dreams.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009).

29 Responses

  1. Frances Madeson says...

    Judge Bates served in the U.S. Army in Vietnam, which may inform his compassion. I was struck by the equal measures of intelligence and kindliness shining out of his court photo. He is certainly distinguishing himself.

    I guess Aafia passed through that sally port. I wouldn’t be surprised if a substantial piece of her soul is still tangled up in that wire.

  2. Justice extends to Bagram, Guantánamo’s Dark Mirror by Andy Worthington « Dandelion Salad says...

    […] Guantánamo’s Dark Mirror by Andy Worthington Posted on April 7, 2009 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 7 April […]

  3. Justice Extends to Bagram, Guantánamo’s Dark Mirror « From The Wilderness says...

    […]  by Andy Worthington  6.4.09 […]

  4. Connie L. Nash says...

    Frances, Andy : I would like to know how to get in touch with Aafia and her lawyers. Would U please advise? I don’t know how to access this information. I may have received an email from U on this, Frances as U suggested. However, I don’t know what to watch for unless the heading is very clear as I get many emails? Thanx for occasionally bringing her up & all the other magnificently compassionate work each of U do (& many others who contribute to these articles and Comments as well!)

    Connie newlease7@yahoo.com

  5. Nell says...

    On Friday Apr 10, the Obama administration took its worst step yet.

    They appealed Judge Bates’ decision. Had they accepted the reality that prisoners kidnapped/captured around the globe and sent to a military prison in an active theater of war are not legally in any different position than the Guantanamo prisoners, we’d be able to feel that at least we were on a solid floor.

    The decision to appeal, and the horrible Bush&Cheney-like language of the appeal filing (highlighted in Glenn Greenwald’s recent post, from the NYT coverage) actually goes further than the previous administration. In combination with the reports of prisoner defense lawyers across the board that the same stonewalling and arbitrary secrecy is in force as during the previous administration, it’s impossible to imagine them going any route but trying to recreate the Bush system in different locations and with different language. They’re clearly going to try to set up a two-tier judicial system so that they don’t have to release any but a very small number of Guantanamo prisoners.

    In short, the situation under the new administration is worse than the lowest expectations of all but the most cynical observers.

  6. Andy Worthington says...

    Hi Nell,
    Thanks for the comment, bleak though it is. I’m actually late in responding (a) because I took a holiday and (b) because on my return I spent several days entertaining my friend and fellow blogger the Talking Dog and his family, which led to numerous discussions about the “flexibility” that the Obama administration wants to maintain, as opposed to what is really required: a clear and unambiguous repudiation of all the crimes of the last eight years.

    I think that Bagram is part of this “flexibility,” but the sad truth, of course, is that there’s no possible justification — given the evidence of the three types of prisoners that Judge Bates finally managed to understand — for withholding habeas rights from the foreign prisoners captured outside Afghanistan.
    We’ll see what happens. I too am enormously disappointed that the Obama administration has chosen to appeal Judge bates’ ruling — and, as TD and I also discussed ad infinitum — am also bitterly disappointed that Obama is not only dragging his heels over Guantanamo releases, but also seems, with his review team, to be challenging the courts’ post-Boumediene mandate to deal with the prisoners’ cases.

    However, I remain — dare I say — optimistic that the majority of the prisoners will be released without charge within the one-year limit, accepting, of course, that Obama does indeed move to accept the Uighurs into the US, thereby encouraging other countries to accept other cleared prisoners.

    But it is an unholy mess, and your closing comments should be a rallying call to maintain pressure on the administration.

    For background, here’s former State Department official Lawrence Wilkerson on the 25 dangerous prisoners at Guantanamo (i.e. set the other 216 free!):
    And here are my latest two posts on the Uighurs:

  7. Andy Worthington says...

    I don’t know the answer to your question re: Aafia, but you could try asking Cageprisoners. They might have contact details.

  8. Andy Worthington says...

    And while I’m doing a round-up of responses, thanks, as ever, for your considered comments, Frances, though I believe that, given his record, Judge Bates was not necessarily expected to demonstrate such intelligence and kindliness — although he has, as you say, certainly distinguished himself in this case.

    We will see how he fares with some of the Guantanamo habeas cases, where it will not take much for him to be slightly more questioning than another George W. Bush appointee, Richard Leon, the high-speed habeas judge whose patchy opinions have been recorded at length on these pages, and can be found here (and by following the links):

  9. Andy Worthington says...

    I also received the following message from a long-time correspondent:

    US + Israel = madness..
    Imprisonment of thousands without rights of appeal.
    Displacement of millions without any form of compensation.
    Death and destruction.
    Threats and sanctions.
    makes you wonder if there is anything positive with either regime or their policies.
    so many homeless, jobless, imprisoned, ill with inadequate health care in the US but still the US/Israeli war machine takes priority..
    I wondered if you would take on the Bagram problem as well.
    at least you are doing something to put some of the madness right..
    Ingrid B.

  10. Andy Worthington says...

    Thanks, Ingrid. Good to hear from you.
    I guess sometimes it’s difficult to believe that the small gestures will amount to much — especially when it comes to the homicidal apartheid that dominates one particular part of the Middle East, but the only other choice is apathy and despair …

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  15. oolaah | Is Bagram Obama’s New Secret Prison? says...

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  20. Bagram: The Annotated Prisoner List (A Cooperative Project) « roger hollander says...

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  21. Bagram: The Annotated Prisoner List (A Cooperative Project) « freedetainees.org says...

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  22. UN Secret Detention Report Asks, “Where Are the CIA Ghost Prisoners?” « freedetainees.org says...

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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