Yesterday, the day after the New York Times and the Washington Post reported that the Obama administration was planning to introduce tribunals for the prisoners held in the U.S. prison at Bagram airbase, Afghanistan, the reason for the specifically-timed leaks that led to the publication of the stories became clear.
The government was hoping that offering tribunals to evaluate the prisoners' status would perform a useful PR function, making the administration appear to be granting important rights to the 600 or so prisoners held in Bagram, and distracting attention from the real reason for its purported generosity: a 76-page brief to the Court of Appeals for the District of Columbia (PDF), submitted yesterday, in which the government attempted to claim that, "Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan."
The main reason for this brazen attempt to secure a PR victory before the appeal was filed is blindingly obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and "rendered" to Bagram, where they have been held for up to six years, had the right to challenge the basis of their detention in U.S. courts.
Below, I discuss the government's position regarding these men, and explain why introducing Guantánamo-style tribunals at Bagram is no substitute for the Geneva Conventions, and at the end of the article I also ask whether the government may not have an even darker motive, related to what I perceive to be comments from administration officials revealing Bagram's ongoing use as a secret prison for foreign suspects "rendered" from other countries.
Why bringing Guantánamo to Bagram is intended to exclude the U.S. courts
Despite fierce opposition from Obama's Justice Department, which clung to the line taken by the Bush administration, Judge Bates ruled in April that Boumediene v. Bush -- the Supreme Court ruling last June, which granted constitutionally guaranteed habeas corpus rights to the prisoners in Guantánamo -- extended to foreign prisoners "rendered" to Bagram, because "the detainees themselves as well as the rationale for detention are essentially the same." He added 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.
Judge Bates was undoubtedly correct, for two reasons: firstly, because, as I explained at the time, "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"; and secondly, because he refused to extend habeas rights to an Afghan prisoner "rendered" to Bagram from the United Arab Emirates in 2002 -- and, by extension, to the rest of the Afghans in Bagram, seized in Afghanistan, who constitute all but 30 or so of the 650 men held in the prison -- primarily because he agreed with the government's claim that to do so would cause "friction" with the Afghan government regarding negotiations about the transfer of Afghan prisoners to the custody of their own government.
Reinforcing its hopes that offering tribunals to the prisoners would deflect attention from its desire to keep holding "rendered" prisoners at Bagram indefinitely, the government included an Addendum with its brief on Monday, outlining its plans for the new tribunal system. This is designed to replace an existing review system, which, in the words of Judge Bates, "falls well short of what the Supreme Court found inadequate at Guantánamo" in Boumediene, being both "inadequate" and "more error-prone" than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals (CSRTs) that was established at Guantánamo to review the prisoners' cases.
Reporters have been quick to spot that the new review system -- far from providing an adequate system that would, presumably, satisfy the Supreme Court -- is, in fact, little more than a carbon-copy of the CSRTs, which were severely criticized by the Supreme Court in Boumediene, and which were also savaged by Lt. Col. Stephen Abraham, a veteran of U.S. intelligence who worked on them, who explained, in a series of explosive statements in 2007, that they were designed primarily to rubberstamp the administration's insistence that the men were "enemy combatants," even though they had not been adequately screened on capture.
What has happened to the Geneva Conventions?
This omission of screening on capture -- which has applied at Bagram ever since -- came about because, under instructions from the highest levels of government, the military was obliged to shelve its plans to hold competent tribunals under Article 5 of the Geneva Conventions, despite the fact that they had been pioneered by the U.S., and had been used successfully in every war from Vietnam onwards. Held close to the time and place of capture, these tribunals (as opposed to the CSRTs, which mockingly echoed them), comprise three military officers, and are designed to separate combatants from civilians seized in the fog of war, in cases where it is not obvious that prisoners are combatants (when they are not wearing a uniform, for example), by allowing the men in question to call witnesses.
During the first Gulf War, around 1,200 of these tribunals were held, and in nearly three-quarters of the case, the men were found to have been wrongly detained, and were released. The failure to implement these tribunals in the "War on Terror" contributed enormously to the filling of Guantánamo with prisoners who had no connections to any form of militancy whatsoever, and these initial errors were not redressed when a skewed version of the tribunals -- the CSRT system -- was introduced two and half years later.
As a result, plans to introduce Guantánamo-style tribunals to Bagram -- in which prisoners are assigned military representatives instead of lawyers, and may call witnesses and present evidence if "reasonably available" -- may be an improvement on the existing system of Unlawful Enemy Combatant Review Boards at Bagram -- in which the prisoners have no representation whatsoever, and are only allowed to make a statement before they hear the evidence against them -- but it fails to take into account the fact that non-uniformed prisoners seized in wartime, like those at Bagram, should, under the terms of the Geneva Conventions, be given competent tribunals on capture, and then, if found to be combatants, held unmolested until the end of hostilities.
Despite being addressed in the DoD's new proposals, these concerns are not mitigated by the fact that, according to these plans, new prisoners will be subjected, on capture, to cursory reviews by "the capturing unit commander" and by the commander of Bagram to ascertain that they "meet the criteria for detention," and the problem is underlined by the DoD's insistence that it is not merely holding prisoners "consistent with the laws and customs of war," but also holding those who fulfill the criteria laid down in the Authorization for Use of Military Force (the founding document of the "War on Terror," approved by Congress within days of the 9/11 attacks), which authorized the President to detain those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001," or those who supported them.
So is Bagram Obama's new secret prison?
However, while this is a genuinely disturbing development, because it suggests that the Obama administration is essentially following President Bush's lead by unilaterally rewriting the Conventions, presumably to allow it to continue exploiting prisoners of war for their supposed intelligence value (even though the DoD explained, in its proposal, that "intelligence value, by itself, is not a basis for internment"), only one major media outlet -- the New Yorker -- has picked up on a disturbing disclosure in the Times' coverage of the story on Sunday. I reported this in an article yesterday, when I explained that there was something deeply suspicious about the officials' statement that:
the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention.
As I explained yesterday, this "seems to confirm, in one short sentence, that, although the CIA's secret prisons have been closed down, as ordered by President Obama, a shadowy 'rendition' project is still taking place, with an unknown number of prisoners being transferred to Bagram instead."
In a blog post for the New Yorker, Amy Davidson also picked up on the statement, calling it a sentence "that doesn't make much sense," and then asked:
So closing Guantánamo increases the need for a new Guantánamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantánamo because it's unfashionable -- like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida -- or because we actually don't like extrajudicial, indefinite detention?
While I await further developments, I recall that, back in April, CIA director Leon Panetta explained that, although the CIA "no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites," the agency "retains the authority to detain individuals on a short-term transitory basis." Panetta added that, although no detentions had occurred since he became director, "We anticipate that we would quickly turn over any person in our custody to U.S. military authorities or to their country of jurisdiction, depending on the situation."
Is this what is happening now at Bagram? Shortly after Panetta made his comments, I noted that "the only logical conclusion" I could draw was that, "essentially, the Obama administration's only real problem with 'extraordinary rendition' is one of scale. The Bush administration's industrial-scale rendition policies have been banished, but the prospect of limited rendition -- to third countries rather than to the U.S. court system, as would surely be more acceptable -- is being kept as a possible option."
Whether hidden transfers to third countries are taking place is unknown, but from my reading of the officials' comments to the Times, I infer that the CIA is now handing suspects over to the U.S. military, including those captured outside Afghanistan, and that this is the reason, above all, that the government is anxious to prevent the U.S. courts from having access to foreign prisoners in Bagram.
Moreover, as with the Bush administration, the indications are that this process focuses solely on the gathering of "actionable intelligence" -- or with "decommissioning" suspects -- and that those responsible for implementing it have, yet again, chosen to ignore the fact that terrorism is a crime, prosecutable in the U.S. courts, and not an act of war requiring secret prisons and extra-legal detention, however much it may be dressed up in review procedures that include only the following "[p]ossible recommendations" for what will happen to those prisoners who "meet the criteria for internment": "continued internment" in Bagram, transfer to the Afghan authorities for prosecution, transfer to the Afghan authorities "for participation in a reconciliation program," and, in the cases of "non Afghan and non-U.S. third-country national[s]," options "that may also include transfer to a third country for criminal prosecution, participation in a reconciliation program, or release." What, I wonder, are the options that were not included?
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press), and maintains a blog here.
Follow Andy Worthington on Twitter: www.twitter.com//GuantanamoAndy
For very good reasons, they see intelligence reports, including direct intelligence, that the general population is not aware of. Isn't it even remotely possible that the Bush strategy, now closely followed by the Obama strategy, is indeed the correct strategy for the U.S.?
Is there any reason to believe that the utter and very dangerous incompetence apparent in the documents made public is any different from the competence we would see in the documents made public? Nope. Many judges, including conservative judges, appointed by Bush 41 or Bush 43, who had a chance to review both the classified and unclassified evidence, have denounced it as tissue thin.
"Stop the spin", you call the Guantanamo captives "terrorists". Make no mistake, by conflating the vast majority of the captives, who were either innocent bystanders, or simply Taliban foot-soldiers, with no ties to terrorisms, with the couple of dozen captives who had a tie to terrorism you help make the public less safe.
Another important reason for the total failure of the Guantanamo intelligence failure is that, it was filtered by the same political spin-doctors who spread the big lies about Saddam's vast arsenal of WMD. One of the first dossiers I read was that of Fouad Al Rabia. He was obviously an innocent bystander. I was shocked when the DoD published a brief press release about how successful the Guantanamo intelligence effort was that highlighted him as one of the successes. I remain shocked. He acknowledged meeting Osama bin Laden, but at a public event. Not every rich man who met Osama bin Laden gave him money, just as not every rich man who met Jim Jones helped him set up Jonestown.
You will see that most captives faced three times as many allegations during their first annual review board as they did in the Combatant Status Review Tribunal. What this shows is the arbitrariness of what was classified and declassified. The new allegations faced in 2005 generally weren't */new/*. They were just allegations that had been withheld from the captives in 2004 -- when they really counted.
179 captives' CSR Tribunals decision memos were published in September 2007. I think with just one exception, those memos all said the Tribunal's decision was based on */classified/* evidence. Then when their annual reviews were convened six months or a year later those previously classified allegation were made public. And some captives easily refuted them. But the annual review boards lacked the authority to overturn the "enemy combatant" status.
But when a captive offers what sounds like an iron-clad alibi, one that could be confirmed or refuted with trivial effort, it is extremely irresponsible to not bother to check it out.
Consider captive 950, Abdullah Khan. He was rounded up following a denunciation from an Afghan informant. So were several other men he had dinner with the previous night. The bounty hunters made some highly far-fetched claims about who he was, which incompetent American intelligence officials accepted without question. One claim was that he was Khirullah Khairkhwa, governor of Herat. In addition he was in charge of all the Taliban's airfields.
When he ended up in Guantanamo, a few months later, he learned that the Taliban governor had been captured in 2001, a year and a half earlier, and was currently held in Guantanamo himself.
He testified that during every interrogation he was told his interrogators knew he was lying about his identity, and every time he pleaded with them to check the prison roster to see he was telling the truth.
I am still shocked that, for a year and a half, no one took two minutes to check the roster.
My only correction — or addition — would be to say that many of the new allegations added between the CSRTs and the ARBs were in fact new, but were not necessarily of any worth, as they had generally been obtained through the “confessions” of other prisoners, including some notorious liars, and others with mental health problems.
And for anyone interested in Fouad al-Rabia’s story, I deal with it at length in “The Guantanamo Files,” and a version of the story is available here:
http://www.andyworthington.co.uk/2008/11/21/more-dubious-charges-in-the-guantanamo-trials/
Where is change?
I'd love to hear their justification for the continuation of a Bush regime crime.
My interpretation of Obama limiting his support for a return to the rule of law for the captives to a few relatively minor changes is that he and his team have made the decision that he can not afford to expend the political capital on the rule of law without crippling his ability to deliver on every other promise he made.
I think a full return to the presumption of innocence and the full rule of law protects public safety. Personally I think abandoning the rule of law was immoral, but I recognize many in this debate would happily sacrifice every traditional liberty, and every human right of others, when those they trust tell them these sacrifices are necessary for public safety. So I think the debate over torture, and unjust detention without charge should focus on public safety -- not morality.
I agree with you wholeheartedly, of course, and what depresses me about this latest round of depressing revelations from Bagram is that it appears to me that those implementing the policies -- the reviews, the renditions -- genuinely believe that they are acting responsibly with the best intentions for the safety of the United States and the credibility of its operations in Afghanistan.
Sadly, however, it is, instead, just a sign of how permanently skewed America's moral compass is in the wake of the Bush years, when creative attempts to continue sidelining the Geneva Conventions are regarded as appropriate policy, and an Obama-appointed Task Force publicly recommended three weeks ago that rendition policies should continue, although with appropriate "safeguards," of course (this was something I missed because I was on vacation at the time, so thanks to Glenn Greenwald for mentioning it today):
http://www.nytimes.com/2009/08/25/us/politics/25rendition.html
These people obviously feel entitled, and they believe they are above the law. Time will tell whether they get to walk away with their illusions intact.
And do go on agreeing with me "wholeheartedly, of course. . ." It feels so nice.
Most of us had expectations of Obama, above and beyond simply being not-Bush. Some of the expectations were unrealistic, but at the very least he must stop these crimes from being perpetrated, immediately and without exception. Despite our differing visions for the future of the United States, none of us can possibly believe this behavior spells the way forward.