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Obama’s Gitmo?


Bagram Air Field, Afghanistan (army.mil)

Almost six years ago, while on a business trip in Thailand, Amin Al Bakri was abducted on his way to the Bangkok airport. For months, his wife and three children at home in Yemen had no idea where he was. Then one day they read in a local newspaper that Bakri, a 39-year-old gem trader, had been seized by United States agents. About six months after his disappearance, they received a postcard, sent via the International Committee of the Red Cross. In it, Bakri explained that he was imprisoned at the United States air base in Bagram, Afghanistan. The family had no idea why.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin

Bakri was likely held in various secret prisons, known as “black sites,” for interrogation before he landed at Bagram. He was likely abused, humiliated and tortured, as we now know many such prisoners were, and secret United States policies approved by the president and vice-president allowed. But it’s impossible to know for sure, because other than routine Red Cross visits to the prison and two visits over seven years with members of Bakri’s family, no one outside of the US government has been allowed to see or speak with Bakri. Not even his lawyers.

That Bakri has lawyers at all is highly unusual, and is only because his distraught father reached out to the International Justice Network, a nonprofit legal organization that’s been trying to help some of the 600 or more prisoners now being held by US forces at the Bagram air base. Like the detention center at Guantanamo Bay, Cuba, the prison at Bagram is controlled by the United States, although it’s physically located in another country – in this case, Afghanistan. And although the United States claims that most of the prisoners there were seized “on the battlefield” and are therefore being held legitimately, many of the detainees were, like Bakri, seized in other countries and brought to Bagram for detention. (The defense department won’t say how many Bagram detainees have come from other countries.) Lawyers representing the detainees therefore argue that Bagram is essentially the same as Guantanamo – an offshore detention center wholly controlled by the United States and holding prisoners abducted by US agents around the world – and that prisoners there ought to have the same rights as those at Guantanamo.

The Bush administration disagrees. It maintains that the prisoners at Bagram are “enemy combatants” seized in a war, so the United States can detain them indefinitely, without charge or access to lawyers, until hostilities end – whenever that may be. Although the administration has repeatedly lost when it’s made that argument to the Supreme Court about detainees at Gitmo, the Pentagon has insisted that Bagram, because it’s near ongoing conflict, is different. On Wednesday morning, a federal judge in Washington, D.C. will for the first time consider these claims.

The cases of Amin al-Bakri and three other detainees held at Bagram are being argued today before US District Court Judge John Bates, a Vietnam veteran appointed by President Bush just months after the US invasion of Afghanistan. They’re important not just to the fate of the four prisoners – seized in Yemen, Pakistan, Thailand and Tunisia and detained at Bagram without charge for up to six years; they could also determine whether hundreds or even thousands of other prisoners being held indefinitely around the world by the United States military have a right to challenge their detention.

“We’re talking about the exact same situation as Guantanamo,” said Tina Foster, executive director of the International Justice Network, which is representing the four detainees in conjunction with law clinics from Stanford and Yale law schools. “People are removed from whatever country or jurisdiction they happen to be in and taken to a place for the purpose of evading any legal requirements or obligations.”

Last June, in Boumediene v. US, the Supreme Court ruled that the United States cannot hold detainees at Guantanamo without the right to challenge their detention in a US court. Just because the prison is on foreign soil doesn’t mean the Constitution does not apply. As Justice Kennedy wrote in the majority opinion: “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is’.”

The question before the district court today – and an important question facing the new Obama administration — is whether the same principles will hold true for some 600 men being held at Bagram.

The Bush Justice Department insists they do not. It argues that unlike Guantanamo Bay, Bagram is a temporary air base set up during wartime and that Afghanistan maintains sovereignty. Though Bagram, like Guantanamo, is leased indefinitely for the exclusive use of the US military and a status of forces agreement confirms broad US control over the base and its residents, the government insists Bagram is different. The US hasn’t had the lease for as long; and, “the military base is in an active theater of war where the US military, along with the host nation’s security forces and the troops of some 40 nations, are engaged in daily combat,” Justice Department lawyers wrote in a brief to the court.

But lawyers for the detainees say there’s a big difference between people seized on the battlefield and held temporarily for questioning or turned over to local authorities for prosecution, and people picked up in other countries and sent to a US-controlled prison that happens to be near ongoing hostilities.

“Amin was abducted in Thailand,” says Foster. “But for the US having brought him to Afghanistan, he would have been nowhere near Bagram or Afghanistan. So the argument that they’re holding him in close proximity to ongoing hostilities is a problem of their own making.”

Joseph Margulies, law professor at Northwestern University, agrees. “The United States can choose to house people anywhere,” he said. “They make a choice to move people closer or farther way from the conflict. You wonder whether the law should sanction that kind of manipulation.”

Under the laws of war, says Margulies, “the US has an obligation to move people away from the battlefield after the point of capture. So the US cannot maintain that while there may be boots on the ground in Afghanistan, Bagram airfield is a battleground.”

But if prisoners at Bagram have the right to challenge their detention in US courts just as prisoners at Guantanamo do, does that mean that thousands of suspected Taliban or al Qaeda members being held by the United States as part of the war on terror will have the right to flood American courts with their claims? As the government puts it, to give them all habeas corpus rights “would have a crippling effect on war efforts.”

“Federal courts should not thrust themselves into the extraordinary role of reviewing the military’s conduct of active hostilities overseas,” writes the Justice Department in its brief. That would amount to “second-guessing the military’s determination as to which captured aliens as part of such hostilities should be detained, and in practical effect, superintending the Executive’s conduct in waging a war.”

Legal experts acknowledge that the traditional laws of war don’t easily apply to non-traditional conflicts such as this one, where the US is fighting a terrorist organization or a group of insurgents rather than a government. In World War II, for example, it was clear that the US could hold German or Italian uniformed soldiers until the war was over. But we’re not at war with the government of Afghanistan, and Taliban and al Qaeda warriors don’t wear uniforms and aren’t always recognizable. So what should be done with people the government suspects are warriors, or may have information about terrorists? Can the US lawfully hold them indefinitely, without charge and with no meaningful way to demonstrate their innocence?

“My own view is that if the US is holding somebody subject to its control then that person should have the right to challenge the legality of that detention absent extraordinary circumstances,” said David Cole, law professor at Georgetown University Law School. “Why should it matter whether we’re holding someone in Louisiana, Gitmo or Bagram if they’re being held illegally? Shouldn’t they have some right to question that?”

The question becomes even more important when you consider that since the Supreme Court first decided in 2004 that Guantanamo prisoners have legal rights, the US military has largely stopped sending new prisoners there, sending them to Bagram instead.

Bagram has “become the sort of Yucca mountain storage facility for these human beings,” said Eugene Fidell, an expert on military law and visiting professor at Yale Law School.

In addition to the 600 prisoners at Bagram, the United States is holding more than 15,000 prisoners in Iraq. Which prisoners would have habeas rights would depend on “who they are and the grounds on which they’ve been detained,” said Fidell.

But as the Iraqi government increasingly assumes control of its own country, prisoners being held there by US forces may not be entitled to habeas rights if they are being held on behalf of the Iraqi government, to be eventually tried or released by an Iraqi court.

“That’s a completely different beast,” says Margulies, of Northwestern Law School. In Bagram, the US is holding prisoners for its own interrogation purposes, not for the benefit of the Afghan government. “If you control the location and you are holding people ostensibly forever and not for the benefit of another government, and you’ve decided where to put them, then the writ [of habeas corpus] runs to that location.”

It’s not clear that the US district court hearing the case today – or the US Supreme Court, which may eventually address the issue – will agree. So far, the Supreme Court has only addressed the situation of prisoners at Guantanamo.

Ultimately, it may be the new Obama administration, rather than the courts, that will decide the Bagram question.

“They clearly can decide, like the Bush administration has done with the vast majority of detainees at Guantanamo, to send them home and moot the cases that way,” said Foster, who, along with some of her colleagues, has met with members of the Obama transition team to discuss the situation at Bagram. Or, “they could close down Bagram the same way they’re moving to close down Guantanamo.”

There’s good reason to consider the latter course, regardless of the difficult legal questions involved. As Foster observes: “it does not behoove the Obama administration to have Bagram become his Guantanamo.”

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