Pressure Rising on Obama to Address Bagram Prison
The New York Times has picked up on the Bagram detainee story I wrote about two weeks ago, ratcheting up the pressure on the Obama administration to start deciding what it’s going to do about the 600 or so prisoners held by the U.S. Defense Department there.
As we reported back in the first week of January, the Bagram prison holds almost three times as many prisoners as the Guantanamo Bay detention facility does, but President Obama, despite pledging to close Gitmo and provide all detainees there humane conditions and due process, hasn’t said a word yet about what he’ll do about Bagram.
To be sure, it’s a somewhat thornier problem, as I described in my earlier piece, in that the Defense Department claims a lot of the Bagram prisoners were picked up “on the battlefield” in Afghanistan, and that the United States is therefore entitled to hold them. But as a legal matter, that’s not at all clear: after all, we’re not at war with the government of Afghanistan, and just calling these guys “enemy combatants” doesn’t necessarily answer the question.
What’s more, the administrative review that is supposed to determine the detainees’ status often consists of just one commanding officer deciding based on information provided by their captors. See Col. Rose Miller’s declaration, describing the process and submitted in connection with one of the Bagram cases, here (pdf). The detainees themselves, who have no access to lawyers or even the evidence against them, have no right to attend any hearings on the matter or subsequent reviews.
Finally, one thing glossed over in today’s piece in The Times is that while the Defense Department says it’s been turning 20-30 prisoners a month over to the Afghans for trials, these are hardly what we in the United States would consider a “trial.” Volunteer lawyers from a nonprofiit organization called the International Legal Foundation, which has tried to represent the Afghans in those proceedings, have told me that they often learn of the charges against their client just a day or even hours in advance, and have no time to prepare their case, let alone access to the evidence against the prisoner.
I described one such trial in a magazine article I wrote for The American Lawyer last fall about the case of an Afghan man named Ruzatullah, who described the proceeding to Tina Foster, an American lawyer representing him in a habeas corpus proceeding:
A panel of Afghan judges read a statement charging that Ruzatullah had aided terrorists. The only “evidence” presented, said Foster, was that his captors had found names of “government enemies” in Ruzatullah’s diary; his mobile phone number was in the possession of other suspects who had been killed by coalition and Afghan forces; Ruzatullah had graduated from a university that many antigovernment suspects have attended; and he had been living in a refugee camp believed to serve as a base for government enemies. The judges, who acted also as prosecutors, did not present any witnesses or sworn statements to support the charges, he told Foster. During the proceeding, Shabeer [his Afghan lawyer] objected that there was no evidence to support the claims; the names in the diary had not been written by Ruzatullah; and many who had attended the same university or lived in the refugee camp were neither terrorists nor enemies of the Afghan or U.S. government. Ruzatullah himself also denied the charges at the trial. Two days after the trial, he told Foster, Ruzatullah was informed that he had been convicted and sentenced to three-and-a-half years in prison. Because he had already spent almost that much time in detention, however, he had only a month left in his sentence. Ruzatullah was released last spring.
“They convicted him on the say-so of the U.S. government without any supporting evidence,” said Foster. Foster is the executive director of the International Justice Network, which has taken the lead in representing Bagram detainees in the United States. She represented Ruzatullah in a habeas corpus proceeding that was dismissed as moot as soon as Ruzatullah was transferred to Afghan custody.
Foster and other lawyers have charged that one reason their clients were transferred by the Defense Department under the Bush administration was to avoid rulings on their habeas cases that were pending in a U.S. federal court.
The Obama administration has so far not used that tactic; as we reported earlier, the cases of four Bagram prisoners are now pending in U.S. District Court in Washington, D.C. The judge in that case has ordered the Defense Department to produce more information about the detainees at Bagram, and specifically ordered the Obama administration last week to clarify the position it intends to take on this group of detainees, in light of its recent executive orders, by Feb. 20.