From Andy Worthington
On Friday, the Court of Appeals in Washington D.C. delivered a genuinely disturbing ruling regarding prisoners in the US prison at Bagram airbase in Afghanistan.
This ruling has turned the clock back to the darkest days of the Bush administration, before prisoners seized in the “War on Terror” had any recourse to justice if they claimed they had been seized by mistake.
Ruling in the case of three foreign prisoners — Redha al-Najar, a Tunisian seized in Karachi, Pakistan in 2002, Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand in 2003, and Fadi al-Maqaleh, a Yemeni seized in 2004 — who were seized outside Afghanistan and transferred to Bagram via a number of secret CIA prisons, the Court of Appeals reversed a ruling last March by District Judge John D. Bates, granting the men the right to ask a US court why they were being held.
In January 2009, during a hearing before he delivered his final ruling, Judge Bates had recognized that Bagram was “a ‘black hole’ for detainees in a ‘law-free zone,’” and in his ruling he concluded — correctly — that the habeas rights granted by the Supreme Court to the Guantánamo prisoners in June 2008, in Boumediene v. Bush, also extended to foreign prisoners seized in other countries and rendered to Bagram, because, as he explained succinctly, “the detainees themselves as well as the rationale for detention are essentially the same.”
My own understanding was that it was 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 — that prevented these three men (and several dozen other foreign prisoners) from joining the 779 men in the offshore prison in Cuba.
This should have been the end of the story, especially as Judge Bates made no suggestion that similar rights should extend to foreign prisoners captured in Afghanistan, and also because, in June 2009, he accepted that a fourth man who had submitted a habeas petition — Haji Wazir, an Afghan seized in the United Arab Emirates — had no right to access a US court.
Although there was undoubtedly a case to be made that an Afghan rendered to Afghanistan from another country was in same position as a foreigner when it came to asking why they were being held, Judge Bates accepted the government’s argument that granting habeas rights to any Afghan would cause “friction” with the Afghan government, because of ongoing negotiations regarding the transfer of Afghan prisoners to the custody of their own government, and refused to grant Haji Wazir’s habeas petition.
However, this was not the end of the story. As soon as Judge Bates delivered his ruling last March, the government announced that it would appeal, and, in September, submitted a 76-page argument (PDF), which, as a sweetener to the Court of Appeals, also addressed a problem that Judge Bates had highlighted, even though it was beyond his remit to suggest any remedy.
The problem highlighted by Judge Bates was the review process at Bagram, and in making his ruling about the foreign prisoners rendered to the prison, he had compared it unfavorably to the review process in operation at Guantánamo, noting that the Unlawful Enemy Combatant Review Board (UECRB) at Bagram was both “inadequate” and “more error-prone” than the Combatant Status Review Tribunals at Guantánamo (which were condemned as nothing more than a rubberstamp for executive detention by former officials who worked on them, including, in particular, Lt. Col. Stephen Abraham), and concluding that the US military’s control over Bagram “is not appreciably different than at Guantánamo.”
In an analysis of the UECRB process, Judge Bates noted that prisoners were not allowed to have a “personal representative” from the military in place of a lawyer (as at Guantánamo), and were obliged to represent themselves, and also explained, “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.” He also noted that, unlike at Guantánamo, where Administrative Review Boards were convened on an annual basis, “Bagram detainees receive no review beyond the UECRB itself.”
It was no wonder that Judge Bates concluded that this process “falls well short of what the Supreme Court found inadequate at Guantánamo,” but in highlighting the review process at Bagram, he also touched on the biggest problem of all — that everyone at Bagram was held with less rights than the largely powerless “enemy combatants” of Guantánamo, and that they were, in particular, not being held as prisoners of war according to the Geneva Conventions.
This would have involved them being screened on capture, to determine whether they were combatants or civilians seized by mistake, and would then have involved them being held unmolested until the end of hostilities. It certainly would not have involved them not receiving adequate screening on capture, and then being subjected — at some undetermined point after capture — to a review process conjured up out of thin air.
When the government appealed Judge Bates’ ruling, the Justice Department’s submission included an attachment from the Defense Department, announcing that the UECRB process at Bagram was being replaced with a system that closely matched the tribunal process at Guantánamo — the one that, as Judge Bates noted, was “found inadequate” by the Supreme Court.
Under this new system, prisoners are assigned personal representatives (as at Guantánamo), are allowed to call witnesses (as at Guantánamo, although not a single witness from outside the prison was ever located by the officials in charge), and have their cases reviewed every six months. This certainly addressed the main problems identified by Judge Bates, although, as I explained at the time, by importing the CSRT process to Bagram and refusing to reinstate the Geneva Conventions, Obama and his administration “have, essentially, accepted the Bush administration’s aberrant changes regarding the detention of prisoners in wartime as a permanent shift in policy, with profound implications for the Conventions in general.”