By Andy Worthington

From Andy Worthington | Original Article

In the first of two articles about the Obama administration’s detention policies relating to the US airbase at Bagram, Afghanistan, I examined recent revelations about a secret prison inside the base, apparently run by a shadowy branch of the Pentagon, where Bush-era “enhanced interrogations,” involving sleep deprivation and isolation, are used, as authorized in Appendix M of the US Army Field Manual. This second article examines the Obama administration’s confusing attempts to bring detention policies at the main prison more in line with international accepted standards regarding the treatment of prisoners seized in wartime, with some spectacular failures — the refusal to accept that foreign prisoners rendered to Bagram from other countries should have habeas corpus rights — and some improvements, involving review boards, prisoner releases, and trials, which, nevertheless, betray the kind of confusion that will prevail while the administration insists on accepting its predecessor’s unilateral rewriting of the Geneva Conventions.

A new review process at Bagram — and the Obama administration’s struggle to withhold habeas corpus rights from foreign prisoners

Beyond the growing scandal of the “black prison,” which cries out for further investigation, the US authorities have been attempting, with rather more success, to rebrand the main prison at Bagram, opening a new facility to replace the squalid Russian factory immortalized in the bleak stories of prisoners held there in the early years, releasing the first ever list of prisoners in January, and introducing a new review process designed to release prisoners who, as Max Fisher explained for the Atlantic in March, constitute the “80 to 90 percent” of the prison’s total population — estimated, at the time, as 750 prisoners — who “are non-ideological or ‘accidental’ combatants who pose no long-term threat to the US.”

The introduction of a new review process was initiated for two reasons, one of which was considerably more benign than the other. The first involved the military belatedly learning from mistakes in Iraq, after Gen. David Petraeus, the overall commander in Afghanistan and Iraq, appointed Maj. Gen. Doug Stone to run the detention system in Iraq. As an NPR report explained last August, “He had 21,000 detainees. But he found that most of these Iraqi detainees — as many as two-thirds — were not radicals, but mostly illiterate and jobless young people. Some were innocents and others worked for the insurgency because they just needed the money. And Stone worried that detaining them was only making matters worse, actually turning them into radicals.”

NPR added that, as a result of his success in Iraq, Gen. Petraeus sent Maj. Gen. Stone to review the detention program in Afghanistan, and that he “went to Afghanistan with a team, interviewed detainees, visited detention facilities,” and produced a 700-page report, in which he estimated that “as many as 400 of the 600 held at Bagram can be released,” explaining that “many of these men were swept up in raids” and “have little connection to the insurgency.”

However, the second reason for introducing a new review process was in response to a court challenge in the US, which was regarded with the utmost severity by the Obama administration, as it had been by President Bush. In March 2009, in the District Court in Washington D.C., Judge John Bates granted habeas corpus rights to three foreign prisoners seized in other countries (including Thailand and Pakistan), transferred to Bagram (via secret CIA prisons), and held for up to eight years.

As Judge Bates recognized, the habeas rights granted to the Guantánamo prisoners by the Supreme Court in June 2008 also extended to foreign prisoners rendered to Bagram because “the detainees themselves as well as the rationale for detention are essentially the same,” because the review process at Bagram “falls well short of what the Supreme Court found inadequate at Guantánamo,” and because any “practical obstacles” to a court review of their cases were “not insurmountable,” and were, moreover, “largely of the Executive’s choosing,” because the prisoners were specifically transported to Bagram — in an active war zone — from other locations.

Two weeks ago, the Court of Appeals shamefully overturned Judge Bates’ ruling, hurling the foreign prisoners rendered to Bagram from other countries back into a legal black hole — and moreover, one which, as Al-Jazeera suggested in April, could be swiftly and decisively resolved by transferring them back to the custody of their home countries, thereby avoiding any further calls for accountability. On April 27, Al-Jazeera reported that, when speaking about the foreign prisoners held at Bagram — 32 in total, according to a New York Times article in March — Vice Admiral Robert Harward, the commander in charge of detention operations in Afghanistan, stated that the authorities were “currently co-ordinating” with the foreign prisoners’ home governments, adding, “We’re working to move them back into the legal systems of their countries.”

Reporting from Kabul, James Bays claimed, “The Afghans wouldn’t want to take control of these detainees when [the prison] came under Afghan control, and that’s why America is talking to some of the governments where these prisoners come from to see if they will take these prisoners.” This explanation may well contain a kernel of truth, but it also conveniently overlooks the fact that disposing of the prisoners will enable the US government to avoid having to explain why it seized the men in the first place and what was done to them in secret CIA prisons before they even arrived at Bagram.

As well as prompting panic regarding the extension of habeas rights to foreign prisoners in Bagram, Judge Bates’ ruling last March also prompted the administration to address one of his particular concerns — the inadequacy of the review process at Bagram — by introducing a new review process, which, rather cynically, the government chose to announce as part of its court appeal last September, no doubt in the hope of persuading the Court of Appeals that significant improvements were being made at Bagram.

As I explained last March, Judge Bates was withering in his criticism of the existing review process at Bagram, noting that the Unlawful Enemy Combatant Review Board (UECRB) was both “inadequate” and “more error-prone” than the review process used at Guantánamo in 2004-05 — the Combatant Status Review Tribunals, 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.

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.”

In the Detainee Review Boards (DRBs) established to replace the UECRBs, prisoners are now given personal representatives and may call witnesses, which is undoubtedly an improvement. However, even beyond the problems inherent in importing from Guantánamo a system that the Supreme Court found “inadequate,” a more fundamental problem is that the prisoners at Bagram are still not being held as prisoners of war according to the Geneva Conventions. If they were, as I also explained recently:

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.

In March this year, Jonathan Horowitz of One World Research attended five of these hearings, designed to ascertain “whether a detainee should be released, detained until his next review in six months, or transferred to Afghan authorities for prosecution or reconciliation.” He explained how they are indeed an improvement on the UECRBs, but added, “the improvements are relative and the bar was set very low to begin with.”

Horowitz was clearly impressed with the ability to call witnesses, and with the personal representatives’ efforts to act on the prisoners’ behalf, but he worried about the shortage of staff, problems with translators, and a general lack of knowledge about Afghan history and culture, and, in an echo of the problems at Guantánamo, reserved bitter criticism for the use of classified evidence, explaining:

The fact that detainees are not allowed to review classified information seriously jeopardizes the accuracy and legitimacy of the hearings. This classification procedure, though important for protecting identities of informants, makes it nearly impossible for the detainee to effectively challenge the veracity of the allegations. To solve this problem, the US military and intelligence agencies need to end their culture of over-classification and give greater priority to improving their evidence gathering capacity, as opposed to their intelligence gathering capacity. Without a shift from reliance on secret sources to greater transparency, US detention operations and its detainee review system are doomed.

Horowitz also complained about repeated failures in intelligence gathering, which, of course, have plagued US operations in Afghanistan from the very beginning, as was demonstrated repeatedly with the Afghan prisoners in Guantánamo. In his article, he explained that the military “needs to review its intelligence sources and eliminate those who repeatedly provide false and inaccurate information. One of the biggest complaints Afghans have of the US detention policy is that informants aren’t held accountable” — or, he might have added, that the military is all too easily duped by unreliable informants, as the accounts below reveal.

Prisoners released from Bagram

As a result of the DRBs, dozens of prisoners have been released from Bagram since the start of the year. There have been releases before, of course, but the process was devoid of outside scrutiny, and often, it seemed, involved transfers to Afghan custody despite fears that doing so was consigning the prisoners in question to a brutal system where there was even less opportunity for the US rationale for capture to be adequately tested.

In March, as the Associated Press explained, four men were released in an official ceremony — a “shura” — which involved “the provincial governor and dozens of local elders brought in from Logar, the province immediately south of Kabul … pick[ing] at the chocolate cake and fruit laid out for them at [a] conference table,” while listen[ing] to speeches touting a new program to release detainees from [Bagram] if community leaders vouch for them.” As the AP explained, under the program, which began in January, “local Afghan leaders can petition for and win release of Bagram prisoners not deemed a threat if area chiefs pledge to monitor them for signs they are aiding the insurgency.”

Nevertheless, complaints persisted. Haji Katel, a 67-year old (released along with three other men in their 30s), said on his release, “We didn’t do anything wrong, and they arrested us,” but pledged that he would fulfill the conditions attached to his release. “Now I’m free. I don’t care,” he said. “I didn’t do anything against the government before and I won’t do anything now.” However, one of the men who had gathered to greet him, Walir Wakil, a community leader, criticized US policy in a manner that is grimly familiar from the prison’s long history, and which surfaced, again and again, in the accounts of the Afghans transferred to Guantánamo in 2002 and 2003.

“Why were the four men who were being released detained for months at the facility outside Bagram Air Field with no evidence?” he asked. “Why do American soldiers still raid homes without consulting local leaders?” Pouring scorn on Gen. McChrystal’s stated policy of “consult[ing] local representatives as part of a counterinsurgency policy to win hearts and minds away from the Taliban,” he added, “The Afghan people are hearing a lot of talk.”

A week later, the New York Times attended a more stormy release session, which inadvertently revealed the ad hoc nature of US policy in Afghanistan, providing, to those watching closely, an insight into how unilaterally rewriting the Geneva Conventions leads only to chaos

This time around, the tribal elders who had come to vouch for their compatriot were rather less charitable towards the US military. As the release document was read out, “Cmdr. Dawood Zazai, a towering Pashtun tribal leader from Paktia Province who fought the Soviets, thumped his crutch for attention. Along with other elders, he did not like a clause in the document that said the detainees had been reasonably held based on intelligence. ‘I cannot sign this,’ Commander Zazai said, thumping his crutch again. ‘I don’t know what that intelligence said; we did not see that intelligence. It is right that we are illiterate, but we are not blind. Who proved that these men were guilty?’”

As the Times noted, “No one answered because Commander Zazai had just touched on the crux of the legal debate that has raged for nearly a decade in the United States: Does the United States have the legal right to hold, indefinitely without charge or trial, people captured on the battlefield?”

Or, the Times should have added, people who were not even “captured on the battlefield” at all. In interviews with former prisoners, the Times’ reporter, Alissa J. Rubin, actually touched on an even more fundamental problem, noting that a recurring theme was that “the Americans were routinely misled by informants who either had personal grudges against them or were paid by others to give information to the Americans that would put the person in jail.”

By way of explanation, Hajji Azizullah, 54, a leader of the Andar tribe in Ghazni, who had come to sign for two prisoners, said, “The information you had about these men was wrong in the first place. We are confident they were not involved with insurgents. If they were, we wouldn’t be here to sign for them.” One of the released men, Pacha Khan, described as an illiterate baker from Kunar Province, said he was “still puzzled about why he had been detained in the first place, let alone held for three years,” and stated, “I was innocent. Spies took money and sold me to the Americans. The Americans treated us very well, but as you know, jail is a big thing — to be away from your family, your relatives.” His brother, Gul Ahmed Dindar, reinforced the human cost of detention, explaining that he “had to support his brother’s family of eight children and a wife on the meager salary of a local police officer,” and telling the reporter, “They were about to sell their children. They had very little to live on. They sold their one goat, their one sheep and their cow. Then they sold the furniture — it was not much. They have had a very tough life.”

The ad hoc nature of the release process was explicitly revealed at the end of the session. As the Times explained, although Vice Admiral Robert Harward, the commander in charge of detention operations in Afghanistan, “insisted that the American intelligence was good and that these were insurgents,” he swiftly capitulated to complaints from the Afghan elders, who objected to the fact that the release form required them to agree with the US view that the men to be released had a “link to the insurgency.” To nods of assent from the elders, the form was changed to read that the men had “no link to the insurgency.” The Times noted that ‘[t]he new language will be used on future sponsor forms,” and quoted Harward saying, “We learn something every time we do this.”

The most recently reported release session took place on May 15, when ten men were freed, bringing the total this year, according to a McClatchy report, to 200. Again, however, it was a stormy episode for the US military, when Haji Ghulam Farooq (number 1442 on the Bagram prisoner list released in January), who was held for three years, took the opportunity to tell the assembled officials — including Marine Lt. Gen. John R. Allen, the number two at US Central Command in Florida — that “he was afraid he was forever tarnished as a suspect who could be scooped up again at any time,” as McClatchy described it.

Accused of working with Taliban insurgents, Farooq told Lt. Gen. Allen, “I was a mujahideen commander. It didn’t make sense for me to be against this government.” Another of the released men, 38-year old Azzimuddin, a father of four, also complained about his detention. He said that he “spent more than two weeks in the ‘black prison’ where he was held in a small, isolated cell,” and was then sent to the main prison where he was “interrogated every day for nearly three months about accusations that he’d helped arm the Taliban,” and he asked, “Why was I detained? At the end of the day, they said, ‘You are innocent.’”

In response, Capt. Jack Hanzlik, director of public affairs at US Central Command, reiterated the official line about secret prisons, as discussed in Part One of this article. “We don’t operate any secret detention centers,” he said. However, responding to the men’s detention, Lt. Gen Allen, at least, was contrite. “If we detained you unfairly, I am sorry,” he said. “I hope this is a great day for you to return to your families.”

This was some sort of gesture towards reconciliation, but as was explained by tribal leader Dawood Zazai, who had attended the release session in March and was present at this ceremony as well, it may have been too little, too late. Indicating once more that the Americans “were being duped by bad intelligence and being used by malicious Afghans who falsely accused rivals of being Taliban fighters to settle scores,” he pointed out how ruinous false imprisonment was in the struggle to win the hearts and minds of the Afghan people. “You do an operation, you just made 500,000 enemies,” he said. “One wrong report and you’ve lost an entire district.”

The latest twist: trials begin

While the ongoing program of releases is, in general, to be commended, no review of the current situation would be complete without a mention of the latest front in America’s ongoing attempts to rationalize the Bush administration’s “War on Terror.” On May 26, the Associated Press reported that, as part of its intention to hand over control of the prison facilities at Bagram to the Afghan government by early 2012 at the latest, the US authorities were introducing trials, which would begin on June 1. In these trials, conducted under US supervision, prisoners would appear before Afghan judges and be represented by Afghan lawyers.

As part of what the AP described as a “push to win over a suspicious population by being more open about what happens to the people it captures,” this is seen by some as progress, but it still raises a number of disturbing questions: in particular, whether trials are appropriate at all in a wartime situation, or if they are, yet again, another muddle-headed attempt to dismiss the significance of the Geneva Conventions; whether the Afghan government can be trusted to deal fairly with those subjected to trials; and what input the Americans will maintain regarding the provision of evidence. The extent of these worries — and their very real grounding in demonstrable concerns — can be gleaned from a number of recent reports by Human Rights First. In addition, the timing of the trials — so soon after the Court of Appeals dismissed the foreign prisoners’ habeas petitions — can only strike some observers as suspicious.

It is too early to say whether this latest policy will be successful. As the Associated Press reported on June 1, when the first hearing took place, “the chaotic nature of the first court session … showed that the transition toward an Afghan role will likely be slow and messy.” On trial are four men — 24-year-old Misri Gul, seized in Khost in October 2009; his brother Ghazni, who was detained when he went to visit him at Bagram in March; plus the men’s father, Bismullah, and a third brother, 22-year-old Rahmi, who were seized in a raid on the family home last month.

The men are accused of being involved in bomb attacks. According to the prosecution, their fingerprints matched those found on bombs discovered in Khost province, and Kalashnikov rifles and pistols were found during the raid on their house. However, problems arose immediately, beyond the obvious claim, aired by the four defense lawyers appointed by the government, that “it is common for men in the remote mountains of eastern Afghanistan to keep a stash of weapons to protect their families and not necessarily to fight for the insurgents.”

The hearing was held in Dari, whereas the accused are Pashto speakers, and the men’s lawyers also complained that “they had only had a few days to review the cases.” As the chief judge adjourned the case to give the defense team more time to review the cases, to talk to their clients, and to recruit a translator, no new date was set for the hearing, and it is unclear how smoothly — or openly — the trials will proceed. As the AP explained, “The trials present challenges. Detainees are blocked from hearing some of the evidence against them when it is classified. It’s unclear how much access lawyers and judges will have to this information.”

In addition, other comments — that some of those held “will likely be too high of a security threat or too valuable as intelligence assets to relinquish to the Afghan system” — cast a shadow over the whole operation, and should remind us, once again, how, in the “War on Terror” inherited by the Obama administration, the Geneva Conventions are not only Missing in Action, but behind every attempt to provide transparency and to win hearts and minds lurks a secret detention system in which “security threats” and “intelligence assets” are still held outside the law.