Images of caged and shackled detenus at the U.S. naval base at Guantanamo Bay, of torture at the Abu Ghraib prison in Iraq, and of the Gulfstream jets that were used to transfer detenus to secret prisons around the world, have been seared into the public consciousness and become indelibly linked to the U.S. response to the attacks of September 11, 2001. The news that the Guantanamo detention facility, a symbol of injustice and abuse, will no longer be operating after January 22, 2010 is to be welcomed. Guantanamo will be consigned to history, as will be, it is to be hoped, the “enhanced” interrogation techniques and secret Central Intelligence Agency (CIA) prisons. But these positive changes do not obscure the fact that hundreds of others languish in U.S. custody in Afghanistan with no means to challenge their detention, and that the U.S. continues to reserve the right to use rendition and allows the CIA to hold individuals on short-term and transitory basis without the legal framework governing such detentions being made clear.
Nor can the positive changes mask the reality that the U.S. administration continues to invoke the spectre of an ill-defined and perpetual “war”, where the battlefield could be anywhere from Peshawar to Peru, to claim the right to detain people until hostilities have ended, whenever that may be.
On January 22, 2009, President Barack Obama signed three executive orders on detentions and interrogations. One of them committed his administration to closing the detention facility in Guantanamo Bay within a year and directed officials to conduct an immediate review of all cases of detenus being held there to determine what should happen to them. However, the new administration continues with the detentions in Afghanistan; in particular, the long-term detention facility operated by the U.S. Department of Defence at the Bagram airbase where hundreds of detenus are being held. New detentions by the U.S. and allied forces in Afghanistan have been occurring regularly .
Since 2002, an unknown number of people — believed to be more than 2,000 — have been held at the detention facility at the Bagram airbase, currently known as the Bagram Theatre Internment Facility (BTIF). Most of the Guantanamo detenus were held in Bagram and/or the Kandahar airbases before being transferred to the naval base in Cuba. Some were held in these U.S. facilities in Afghanistan for many months. Today, several hundred people — the majority of them Afghan nationals — are being detained there. They are being held without charge or trial, or access to courts or lawyers — some for several years. Some were taken into custody inside Afghanistan, some outside. Four habeas corpus petitions pending before U.S. courts involve nationals of Yemen, Tunisia, and Afghanistan reportedly taken into custody in Pakistan, Thailand, the United Arab Emirates and Afghanistan. For some detenus, their transfer to and detention in Afghanistan marked the first time they had been in that country.
As at Guantanamo, in the absence of judicial oversight the detentions in Bagram have been marked by torture and other kinds of ill-treatment of detenus. Agents of the Federal Bureau of Investigation (FBI) deployed in Afghanistan between late-2001 and the end of 2004 reported personally having observed military interrogators in Bagram and elsewhere employing stripping , sleep deprivation, threats of death or pain, threats against detenus’ family members, prolonged use of shackles, stress positions, hooding and blindfolding other than for transportation, use of loud music, use of strobe lights or darkness, extended isolation, forced cell extractions, use of and threats of use of dogs to induce fear, forcible shaving of hair for the purpose of humiliating detenus, holding detenus in an unregistered manner, sending them to other countries for “more aggressive” interrogation and threatening to take such action.
If anything, detenus at Bagram suffered more deprivation and had less legal protection than those at Guantanamo. As in the case of Guantanamo, accountability for such abuses has been minimal. As at Guantanamo, detenus at Bagram have included children, denied their rights under international law to special treatment considering their age. As at Guantanamo, detenus have been subjected to transfers to and from the base without judicial or other independent oversight or notification to family members. As at Guantanamo, the CIA is believed to have conducted secret detentions and interrogations at Bagram, and both facilities have served as hubs for unlawful “renditions”. At least two cases currently before U.S. courts concern individuals allegedly subjected to enforced disappearance at unknown locations by or on behalf of the CIA before being taken to Bagram.
The U.S. detention of Afghans and non-Afghans in Afghanistan without a proper legal framework or accountability has fostered significant popular resentment in Afghanistan. Afghan President Hamid Karzai, as well as the country’s Independent Human Rights Commission (AIHRC), have repeatedly called for and failed to obtain access to, or at least monitor conditions at, U.S. detention facilities.
Under the Afghanistan Constitution, the AIHRC has the right to monitor the human rights situation in Afghanistan and investigate violations. Nevertheless, the AIHRC has not had access to the Bagram detenus because it rejected the conditions placed on it by the U.S. authorities — including that its officials be accompanied at all times by U.S. military officials. The International Committee of the Red Cross (ICRC) is the only international organisation that has been granted access to detenus held at Bagram. Over the years, it has not had access to all detenus in U.S. custody there or elsewhere in Afghanistan. The organisation maintains a general policy of confidentiality, but has repeatedly revealed its concerns about the lack of resolution of the legal status of the Bagram detenus, and the distress that indefinite detention causes to detenus and their families. In 2008, after prolonged negotiation between the ICRC and the U.S. authorities, programmes of family visits and telephone contact were set up.
On April 2, 2009, a U.S. federal judge ruled that three detenus at the Bagram airbase, who were transferred there by U.S. forces after being seized in other countries, could challenge the lawfulness of their detention in U.S. courts, noting that “aside from where they are held, Bagram detainees are no different than Guantanamo detainees.”
The ruling is not wide enough and leaves numerous questions unanswered — not the least of which is: what will happen to the detenus who were initially detained in Afghanistan? Nonetheless, it was a positive step by a federal judge towards ensuring the rule of law at Bagram and against the position developed by the Bush administration and adopted by its successor.
However, the Obama administration decided to appeal against this ruling. Given that detenus at Bagram do not have access to a system of effective judicial review in Afghanistan, the administration’s appeal essentially means that, like its predecessor, it seeks to deny detenus held by the U.S. outside its territory or Guantanamo any effective means to challenge the lawfulness of their detention. This will amount to continuing the arbitrary nature of the detentions in violation of international human rights law.
Like the detention facility at Guantanamo, now the subject of a presidential deadline for closure, the history of detentions at the airbase in Bagram is one of denial of human rights and human dignity. It took more than six years for the detenus at Guantanamo to be recognised as having the right to habeas corpus. It is past the time for detenus in Bagram and other locations in Afghanistan to have the basic protection provided by independent judicial review. With the new U.S. administration committed to sending more troops to Afghanistan, it is likely that U.S. detentions there will continue and may even rise in terms of numbers.
Like Guantanamo, Bagram should be closed. The theory that the U.S. is entitled to detain any individual anywhere in the world at any time, and hold them indefinitely on the premise that it is involved in an all-pervasive global and perpetual armed conflict against non-state actors, should be expressly disavowed and rejected by Mr. Obama and his administration, Congress, and the courts.
