On President Barack Obama’s second day in office, one of the three executive orders he signed was a commitment to close the detention facility on the naval base at Guantánamo Bay as soon as possible but no later than one year thence. An inter-agency task force headed by White House counsel Greg Craig was established to come up with a plan. The new administration did not anticipate that this step would be controversial because, at the time, closing Guantánamo had bipartisan support, including from former President George W. Bush and Republican presidential contender Sen. John McCain. Bagram, the main US-controlled prison in Afghanistan, on the other hand, was being expanded — like the war in that country.
Many of the problems that had earned Guantánamo its excoriating nickname “the legal black hole” and made it an international symbol of injustice, like denial of habeas corpus, indefinite detention and abusive interrogation techniques, are features of Bagram. Critics seeking to draw attention to these problems nicknamed the Afghanistan facility “Obama’s Gitmo.”
By the spring of 2009, support for closure of Guantánamo had begun to evaporate and by the fall demands to keep it open were full-throated, part of the right-wing pushback against the Obama administration’s proclaimed aspirations to end or reform the Bush administration’s war-time prisoner policies. Those aspirations, which included not only the closure of Guantánamo but also the use of federal courts rather than military commissions to try terror suspects, were never backed by political muscle from the White House. By the end of Obama’s first year, the closure planning had been scrapped and Craig had resigned. Gitmo is now Obama’s and Bagram is his other Gitmo. Their histories are inextricably intertwined.
The Afghanistan-Guantánamo Nexus
The September 11, 2001 terrorist attacks exposed the dearth of intelligence on al-Qaeda operations. On September 14, Congress passed the Authorization to Use Military Force (AUMF), which granted the president the authority to use all “necessary and appropriate force” against those whom he determined had “planned, authorized, committed or aided” the attacks or who had harbored said persons or groups. The latter category included the Taliban regime in Afghanistan, which had sheltered Osama bin Laden since al-Qaeda relocated from Sudan in the late 1990s.
The hot war started in Afghanistan on October 7 as an aerial campaign to destroy the Taliban regime and terrorist training facilities. In November, when large contingents of troops hit the ground, the mission was expanded to capture or kill members of these organizations. As is typical in asymmetric wars between states and non-state groups, intelligence gathering via interrogation became a central component of the US “war on terror.” On November 13, President Bush, citing the AUMF, issued a military order titled Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, in which he declared that members of al-Qaeda and others involved in or providing support for international terrorism could be detained by the US and prosecuted in a new kind of military commission established by that order. The administration had devised the label “unlawful enemy combatants” to denote that detainees would be regarded as neither combatants nor civilians under the 1949 Geneva Conventions, and could be assigned this status by presidential decree rather than a status review by a tribunal.
The first US detention facility, which began receiving prisoners in December, was a makeshift structure at the Kandahar airbase. Kandahar was intended to be a site for quick questioning of prisoners captured at the front, some of whom would then be sent to the “rear” for longer-term interrogation and custody. The rear, as designated that month by the Bush administration, was 7,000 miles away on the south side of Cuba. The first shipment of 20 prisoners from Afghanistan arrived at Guantánamo on January 11, 2002.
The criteria for sending people to Guantánamo were determined by the Pentagon. Those to be sent there included all al-Qaeda personnel; Taliban leaders; non-Afghan Taliban or other foreign fighters; and anyone who might pose a threat to US interests, have intelligence value or be of interest to US prosecutors. According to Chris Mackey (pseudonym), who was among the first military interrogators sent to the Afghan war zone, “Strictly speaking, that meant every Arab we encountered was in for a long-term stay and an eventual trip to Cuba. Only Afghans with considerable intelligence value were supposed to be sent.” [1]
By January, the Kandahar prison population had expanded from several dozen to several hundred. Growing numbers were arriving from Pakistan, alleged terrorists who had escaped across the border after the start of the bombing or had evaded capture during the battle of Tora Bora in late 2001. Others were arriving from across Afghanistan, having been captured on the battlefield, rounded up in village sweeps or sold for bounty by the Northern Alliance. According to Mackey, “They were bringing back a lot of fighters. But they were also bringing back a lot of farmers.” [2]
Military interrogators realized that their Fort Huachuca training in techniques devised in the Cold War was insufficient to break most of those detained in Afghanistan, and their lack of cultural or linguistic knowledge about the region diminished their confidence in distinguishing between fighters and farmers. Pressure from the Pentagon for actionable intelligence — especially the whereabouts of bin Laden, Mullah Omar and other top al-Qaeda and Taliban leaders, and plans about future attacks — was intense. On February 7, 2002, Washington provided official imprimatur for harsh, violent and degrading interrogation methods with a secret presidential declaration that the Geneva Conventions did not apply to prisoners in the war on terror. Bush sought to mollify the State Department, which opposed the decision not to abide by the Geneva Conventions, with a line in the declaration that US forces “shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
The message moving down the chain of command was not the imperative of humane treatment but rather the presumption that detainees were guilty founts of valuable information, and that remonstrations of innocence or ignorance were signs of their deceptive skillfulness. Prisoners were subjected to “counter-resistance” techniques to produce debility, disorientation and dread. Protracted hooding, sleep deprivation, forced nakedness and recurrent cavity searches, position abuse such as chaining and tying them to chairs or hooks on the floor or wall, and manipulation of lighting, sound, temperature, food and medicine, use of dogs, forcible shaving and death threats became standard operating procedure to persuade captives that resistance was futile, [3] starting with the processing of new detainees. Moazzam Begg, a British citizen arrested in Pakistan and shipped to Afghanistan where he spent a year in US custody before being transferred to Guantánamo, described his arrival at Kandahar: After being thrown, shackled to the ground and mounted by several soldiers, “I felt a cold, sharp metal object against my legs: they were using a knife to slice off all my clothes…. I was pulled up to a standing position and the hood was removed…. I was confronted with the sight of soldiers encircling me, screaming abuse and taking pictures again.” [4]
At Guantánamo, in early 2002 intelligence officers were instructed to fill out a one-page form on every detainee certifying the president’s “reason to believe” that he was involved in terrorism. Within weeks, the officers began reporting back that interrogations were not producing the information needed to fill out the forms. Pentagon and White House officials assumed the problem was that these hardened terrorists, who they characterized as “the worst of the worst,” had been trained to dissemble. But when a senior Arabic-speaking CIA analyst was dispatched to the facility in August 2002 to do an assessment of the detainees, he concluded that at least half and probably a much higher percentage had no ties to or meaningful information about al-Qaeda or the Taliban. He recommended a formal review process to determine who should be released and repatriated, and noted that continued imprisonment and interrogation of innocent people could constitute war crimes. John Bellinger, then serving as the National Security Agency’s top lawyer, scheduled a meeting with White House counsel Alberto Gonzales to discuss the analyst’s recommendations, but David Addington, Vice President Dick Cheney’s counsel, canceled the meeting, declaring: “No, there will be no review. The president has determined that they are all enemy combatants. We are not going to revisit it.” [5]
For the first two years, the American public knew little about the Bush administration’s prisoner policies because war-time decision making was clandestine and even memoranda from the Justice Department’s Office of Legal Counsel (OLC) were classified, as were the identities of the growing population of detainees in US custody who were held incommunicado. But gradually, investigative journalists and human rights monitors began to peel back the veil of secrecy. A December 26, 2002 article by Dana Priest and Barton Gellman in the Washington Post revealed that US security agents were utilizing “stress and duress” tactics in the interrogation of people captured in Afghanistan and elsewhere, and that detainees who could not be broken by such methods might be given mind-altering drugs or “rendered” to foreign governments with well-established records of torture, like Egypt and Morocco. According to Priest and Gellman, “While the US government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view.”
Three of the men who passed through Kandahar were British citizens, dubbed “the Beatles” by guards. These so-called Beatles were Shafiq Rasul, Asif Iqbal and Ruhal Ahmed; later they would be nicknamed the “Tipton Three” because of their common hometown. Their names — especially Rasul’s — would become a defining part of the narrative of the Afghanistan-Guantánamo nexus. In September 2001, as they told their Kandahar interrogators, they had gone to Pakistan for Iqbal’s arranged marriage and had ventured into Afghanistan in October, naïvely believing they could use their trip money to provide humanitarian aid for a country about to be attacked. When the bombing started, while trying to flee the country they were captured by Northern Alliance warlord Rashid Dostum’s troops and were among the few to survive transport in truck containers to Shebargan prison. In late December 2001 they met representatives from the International Committee of the Red Cross who reported their British identity to guards, at which point they were transferred to US custody. Their account seemed so implausible that they were assumed to be sly liars, and they were among the first to be sent to Guantánamo in early 2002.
The families of the Tipton Three knew that their relatives were in US custody because of letters transmitted through the Red Cross, and they contacted lawyers, triggering a process to seek their release. On February 19, 2002, the New York-based Center for Constitutional Rights (CCR) filed a petition for a writ of habeas corpus on their behalf as well as Australian detainee David Hicks. Rasul v. Bush was the shot across the bow in what would eventually develop into a multi-case campaign to contest the legality of Bush administration — and then Obama administration — prisoner policies. According to Michael Ratner, president of CCR, President Bush’s November 2001 military order decreeing that people would be detained incommunicado indefinitely, and the decision to hold them at Guantánamo, set off alarms at the organization; in the 1990s, CCR had contested the Clinton administration’s use of Guantánamo to detain — in inhumane conditions — thousands of Haitian refugees interdicted at sea. But in early 2002, the only people willing to join CCR in challenging the government’s detention policies were Joe Margulies and Clive Stafford Smith, death penalty lawyers accustomed to representing despised clients.
The government moved to have the habeas petition dismissed for lack of jurisdiction. Indeed, Guantánamo had been selected precisely because, OLC lawyers contended, it was not a sovereign part of the US and therefore federal laws did not apply or extend to those detained there. As the case moved through the lower courts, the government’s contention prevailed.
Enter Bagram
In May 2002, the center of interrogation and detention operations in Afghanistan shifted from Kandahar to the old Soviet airbase at Bagram north of Kabul. Kandahar was reclassified as a “short-term collection facility” (from which the Red Cross was barred) and Bagram became the “primary collection and interrogation point.” The Bagram facility was a cavernous converted aircraft machine shop. On the main floor were five concertina-wire cages, each about 60 feet long and 30 feet wide, with crude rope-operated sally ports that prisoners would pass through for shackling on their way out for interrogation. The only toilet facilities in the cages were shared buckets. Along one wall was a wooden catwalk from which guards and interrogators could look down to observe the detainees. Interrogation rooms and isolation cells were on the second floor. Unlike the makeshift environment of Kandahar, Bagram was “in every sense of the word, a dungeon.” [6]
Even more gruesome was the Salt Pit, a CIA “black site” in an abandoned brick factory on the outskirts of Kabul. Detainees called it the Dark Prison because the maze of tiny underground isolation cells was kept in utter darkness and guards carried torches. There was a constant barrage of loud recorded noises of jet engines, ghost sounds, heavy metal and rap, which Jamil El-Banna, a British citizen arrested in The Gambia and transported there, described as “devil music.” In November 2002, a detainee who was left naked and chained to the floor died of hypothermia.
Bagram, like Kandahar, initially served as a pipeline to Guantánamo. By June 2002, the detainee population at the facility was about 80 prisoners. As the primary screening facility for the “war on terror,” some people brought to Bagram had been arrested from as far afield as Europe, Southeast Asia and Africa, and some, like El-Banna, were transferred there from CIA black sites or following “extraordinary rendition” to other foreign countries. The detainee population at Bagram began to grow in late 2003 when orders came from Washington to stop the transfer of “ordinary prisoners” to Guantánamo. In November, the Supreme Court had granted certiorari for Rasul, and the uncertainty of that outcome was making Guantánamo a less dependably obscure detention destination. By May 2005, the Bagram population had grown to between 450 and 500, of whom about 350 were Afghan nationals; it topped 600 by mid-2006. The order to release all but the most important Afghan detainees meant that many were interrogated for intelligence that would aid the war effort, and then repatriated.
Between 2002 and 2005, brutality at Bagram was extreme and routine. On March 4, 2003, Carlotta Gall of the New York Times published an exposé about two deaths in detention. A taxi driver named Dilawar and the brother of a former Taliban commander named Mullah Habibullah died of blunt force trauma within days of arriving at Bagram the previous December. The treatment that led to their death was not atypical; prisoners were shackled naked in standing position for protracted periods, which causes swelling (and can lead to kidney failure), and sometimes guards would beat shackled prisoners. Dilawar had been beaten so badly that his legs were described in the pathology report as “pulpified.” His story was featured in Alex Gibney’s Oscar-winning documentary, Taxi to the Dark Side.
Three Bombshells
On April 28, 2004, hours after the Supreme Court heard arguments in Rasul, CBS broadcast shocking photos from the Abu Ghraib prison in Iraq. Simultaneously, the New Yorker published the online version of the exposé by Seymour Hersh about the leaked findings of the classified Taguba report. Maj. Gen. Antonio Taguba had been tasked to head an investigation into allegations of prisoner abuse at Abu Ghraib, and he concluded that the “systematic” and “wanton” abuses were consequences of the decision to disregard the Geneva Conventions, and the migration of coercive tactics and degrading treatment from Bagram and Guantánamo to Iraq.
Over the following weeks, various Congressional committees held hearings, calling Bush administration officials and military commanders to discuss the nature of the prisoner policies and to explain how Abu Ghraib could have happened. The administration’s answer to the latter was to blame “bad apples.” But in mid-June, the first batch of “torture memos” was declassified or leaked to the public, exposing the radical legal rationales that had guided decision making about the treatment of prisoners, and exposing the falseness of the bad apple theory. The third bombshell was the Supreme Court’s June 28 decision in Rasul that federal courts do have jurisdiction to hear habeas appeals by petitioners detained at Guantánamo. The CIA shut down its operation there.
Rasul opened the prison camp door to lawyers. Coming on the heels of the Abu Ghraib photos and the torture memos, hundreds from all sectors of the profession volunteered to serve as habeas counsels, although their access was subject to onerous and dilatory security clearances, speech-stifling protective orders, surveillance and other forms of harassment. The Bush administration tried to thwart the impact of Rasul by establishing Combatant Status Review Tribunals (CSRTs) in July 2004. The CSRT process provided the first hearings to consider whether prisoners’ detention as “unlawful enemy combatants” was justified by evidence in their files. Despite procedures that denied detainees legal counsel, access to evidence and the ability to call witnesses, a few prisoners were declared “no longer” enemy combatants. New tribunals subsequently overturned those decisions.
Exposing Bagram
Although Bagram remained a closed facility where detainees were held incommunicado except for visits by the Red Cross, the CSRT transcripts (made public as a result of Freedom of Information Act litigation by the Associated Press) generated information about conditions and treatment at both facilities. Another source of information came from released prisoners: Some allied governments, responsive to domestic condemnation of American torture and protracted incommunicado detention, pressured the US to release their citizens and residents. Five British prisoners were released from Guantánamo in March 2004, including the Tipton Three. They gave media interviews about their treatment and the false allegations that had kept them in US custody for years. Their story was featured in Michael Winterbottom’s docu-drama, The Road to Guantánamo, which premiered in February 2006. Begg was released and repatriated in January 2005; his Enemy Combatant was the first autobiography by someone held at Kandahar, Bagram and Guantánamo.
The military lawyers assigned to represent the first detainees who were charged by the Guantánamo military commissions also made use of information about their clients’ mistreatment at Bagram to contest the legality and veracity of confessions and third-party statements being used to prosecute them. Lawyers representing Canadian “child soldier” Omar Khadr, who had been badly wounded during a firefight when he was captured at age 15 in Afghanistan in July 2002, challenged self-incriminating statements he had made at Bagram and Guantánamo on the grounds that they were the product of torture and are, therefore, involuntary and unreliable. According to Khadr’s affidavit (confirmed by some witnesses), at Bagram he was beaten, threatened with rape and snarling dogs, and hung by his wrists for hours, which exacerbated the pain of his injuries. He was also hooded and soaked with water until he began to suffocate. His captors shined bright lights into his eyes, which had been damaged by shrapnel. Khadr’s main Bagram interrogator, who was later court-martialed in connection with the beating death of Dilawar, was, ironically, called by the government as a witness to testify that he was not “unlawfully” abused. In some commissions cases, although not Khadr’s, military judges decided to exclude statements from Bagram because of the commonplace brutality in that facility.
The War in Court
Since 2004, various forms of litigation have been mounted relating to the treatment of prisoners, including efforts to pursue detainees’ habeas rights in theory and practice; to gain access to relevant data about custodial treatment, medical conditions and circumstances of capture; to challenge the legality of the military commissions (i.e., Hamdan v. Rumsfeld); and to seek redress for people who were tortured by or at the behest of the US government (e.g., El Masri v. Tenet, Arar v. Ashcroft, Mohamed v. Jeppesen Dataplan). The Bush administration denounced such litigation and sought — usually successfully — to persuade judges that claims relating to the treatment of unlawful combatants are non-justiciable by invoking the “states secrets” privilege.
The importance of the courts as sites of contention was elevated in large part by the lack of alternatives. Congressional representatives in both houses and from both major parties, with a few exceptions — including Sen. Barack Obama — demonstrated a bipartisan unwillingness to condemn the executive excesses of the Bush administration and opposed even non-judicial methods of investigation and accountability as a recipe for a “partisan witch hunt” and the “criminalization of policy differences.” In 2005, Congress passed the Detainee Treatment Act, which included a measure to impede detainees’ access to federal courts for habeas or torture claims.
The Supreme Court’s Hamdan decision in June 2006, which ruled that the president’s military commissions are unconstitutional, also held that “war on terror” prisoners have, at minimum, the rights and protections of Common Article 3 of the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” That decision undermined the efficacy of the administration’s stock assertions that the detainees are rightless. At a September 16 press conference, President Bush denounced the decision and mocked the vagueness of “outrages.” He said that the White House was drafting legislation to restore the military commissions. He also acknowledged for the first time the existence of the CIA’s program and proclaimed that practices authorized for detainees held at black sites — including waterboarding — had been deemed “legal” by OLC lawyers. He also announced that 14 “high-value detainees” in CIA custody were being transferred to Guantánamo.
In October 2006, Congress passed the Military Commissions Act (MCA), which included a clause granting ex post facto immunity for violations of the 1996 War Crimes Act to shield government officials and state agents from prosecution for grave breaches of Common Article 3. The MCA included even bolder language stripping jurisdiction than the Detainee Treatment Act: No court would have jurisdiction for an application of the writ of habeas corpus filed by a person “who has been determined by the US to have been properly detained as an enemy combatant or is awaiting such determination.” This stipulation “shall apply to all cases, without exception…which relate to any aspect of detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” Sen. Obama voted against the MCA.
Bagram Rising
On September 28, 2006, the US government signed a lease with the Afghan government for the facilities at Bagram. According to this agreement, control over the Bagram Theater Internment Facility can continue “until the US or its successors determine that the premises are no longer required for its use.” Between March 2007 and March 2008, six more prisoners were transferred to Guantánamo, but they were the last. The center of gravity in detainee operations (excluding Iraq) had shifted to Bagram.
On January 8, 2008, the New York Times relayed news of a confidential Red Cross report from the preceding summer contending that there was a secret section of Bagram where detainees were held off the books and harshly abused before being transferred into the general population. That same month, the Red Cross concluded protracted negotiations with US officials that initiated a program of telephone and video calls between Bagram detainees and their families, and in September, some began to be allowed face-to-face visits with family members. Amnesty International reported on a November 2008 affidavit from a recently released Afghan journalist (and Canadian Television News employee at the time of his arrest in October 2007), Jawed Ahmed, who said he had been allowed one 20-minute conversation every two months. He said, “During those conversations I was not allowed to share information with them about my case, my treatment or anything else about Bagram. I was only allowed to say that I was fine (regardless of whether I actually was fine) and that I received good food and good treatment (regardless of whether I actually did).” [7]
Through the end of Bush’s second term, at least 2,000 people had been detained at Bagram, including most of the 779 who ended up at Guantánamo. According to US officials, about 90 children had been held there, and as of April 2008, ten children were detained as unlawful enemy combatants. Only the Red Cross has been granted access to Bagram detainees (and as of early 2008 to some detainees held at some forward operating bases in Afghanistan). The Afghan government demanded but was denied access to Bagram detainees because it refused the condition that meetings take place in the presence of US military officials.
From the start of the “war on terror,” the Bush administration’s position on Guantánamo and Bagram had been essentially the same: Foreign nationals captured abroad and classified as unlawful enemy combatants had no right of access to US courts, and the judiciary had no oversight role for these offshore military facilities. The preponderance of prisoner-related litigation challenging the legality of these positions emanated from Guantánamo, and the cases that the government ultimately lost at the Supreme Court cut into the theory that detainees held there were beyond the reach of the law. The emerging question was whether rulings for Guantánamo would extend to detainees at Bagram.
Adjudicating Indefinite Detention
On September 28, 2006 (the same day the US-Afghan lease agreement was signed), the first Bagram habeas petition was filed in federal court for Fadi al-Maqaleh, a Yemeni who was 20 when he was arrested sometime in 2003. On September 29, a petition was filed for Haji Wazir, an Afghan currency trader who was arrested in 2002 in Dubai (where he had a shop) and transported to Bagram. The two petitions were combined as Maqaleh v. Gates. In July 2007, District Court Judge John Bates rejected the government’s motion to dismiss for lack of jurisdiction because three weeks earlier the Supreme Court had granted certiorari for Boumediene v. Bush, a Guantánamo habeas case that challenged the 2006 MCA. Bates logically contended that the ruling in Boumediene would “likely directly” affect the Bagram cases.
On June 12, 2008, the Supreme Court ruled in Boumediene that the MCA unconstitutionally suspended the writ of habeas corpus for prisoners at Guantánamo because the US exercises “de facto sovereignty” over the facility. The Court also determined that the CSRT process was a deficient substitute for this right. This ruling was decisive in moving long-stalled Guantánamo habeas cases into federal courts. When District Court judges began reviewing the materials presented by the government in motions to dismiss the petitions, the government lost the majority of cases because that evidence did not stand up to scrutiny. The government’s losing streak has been reversed on appeal, however, by the heavily right-wing DC Circuit Court, which has crafted its decisions to ensure that no Guantánamo detainees, regardless of the flimsiness of evidence or credible assertions of interrogational coercion, will be freed on a court order.
Boumediene was decided during the 2008 presidential campaign. McCain called it “one of the worst decisions in the history of this country,” whereas Obama praised the Supreme Court for taking “an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.” The following month, lawyers representing Bagram detainees pressed to have the habeas rights provided by Boumediene applied to them, too. To the petitions of Maqaleh and Wazir were added two others: Amin al-Bakri, a Yemeni gem trader who was arrested in Thailand in 2002, and Redha al-Najar, a Tunisian who was arrested at his home in Karachi, Pakistan, in 2002.
In the wake of the government’s loss in Boumediene, the Bush administration shifted its position to contend that the legal status of Bagram and the detainees confined there are essentially different from Guantánamo because Afghanistan is an active theater of war. On September 8, 2008, the Justice Department filed a response to al-Bakri’s habeas motion which stated: “Federal courts should not thrust themselves into the extraordinary role of reviewing the military’s conduct of active hostilities overseas, second-guessing the military’s determination as to which captured alien as part of such hostilities should be detained, and in practical effect, superintending the Executive’s conduct in waging a war…. [Al-Bakri] places much emphasis on his allegations that he is a Yemeni citizen who was captured in Bangkok, Thailand, while on a trip there in December 2002, and that the [CIA] detained him for some months before transferring him to US military custody in Bagram, Afghanistan…. [His] allegation that he was not captured on a battlefield in Afghanistan is immaterial.” The AUMF, the government maintained, imposed no geographic limit on where detainees can be captured or held.
On January 7, 2009, during the lame duck period, the District Court held a hearing on the jurisdictional motions for Maqaleh. On January 22, after Obama had assumed the presidency, Judge Bates invited the government lawyers to notify the court if the new administration intended to alter its position. The answer came on February 20: No. The government “adheres to its previously articulated position.” The new administration, relying on the MCA, maintained that Boumediene does not apply to “enemy aliens in the active war zone.” Obama had decided to adopt the position — which he had previously condemned and promised to end — that foreigners captured abroad can be held in captivity for years with no habeas rights. Obama also assumed the position of his predecessor in other ongoing prisoner-related litigation, invoking “state secrets” to shut down civil suits by torture victims, appealing Guantánamo detainees’ habeas victories in the lower courts and authorizing military commissions rather than federal courts for prosecutions. Like Bush, he cited the AUMF to assert the legality of holding people in indefinite detention without trial at Guantánamo and Bagram.
On April 2, 2009, Judge Bates issued his opinion in which he stated that the petitioners in Maqaleh “are virtually identical to the detainees in Boumediene.” He applied the multi-factored analysis that the Supreme Court had devised in Boumediene: first, the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; second, the nature of the sites where apprehension and then detention took place; and third, the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. On these grounds, Bates dismissed the habeas petition of Wazir because he is an Afghan national, despite the fact that he had been rendered from Dubai for reasons the government never explained. But for the other three, the two Yemenis and a Tunisian, Bates decided that federal courts do have jurisdiction to consider their habeas petitions because they are foreign citizens of other countries, because the Unlawful Enemy Combatant Review Board process at Bagram is even more deficient than the CSRTs that the Supreme Court had rejected in Boumediene, and because US control over the facility is “practically absolute,” like Guantánamo. (Bagram detainees did not have a right to attend their hearings or see a summary of the government’s allegations against them until April 2008.) He interpreted the Supreme Court’s intention in Boumediene to limit “the specter of limitless Executive power,” ruling that the petitioners should not be deprived of habeas rights because the government had decided to transport and imprison them in an active theater of war. He wrote that it “strains credulity to believe that it is impractical to provide meaningful process to detainees held at a large, secure military base, like Bagram, under complete US control.” The Obama administration appealed the ruling.
On May 21, 2010, a three-judge panel of the DC Circuit unanimously overruled Bates’ decision on the grounds that Bagram is not like Guantánamo: It is in an active theater of war, there is no similar long-term occupancy or indication that the US wants to maintain permanent control, and the Afghan government, unlike Cuba, is an ally in the war. They rejected Bates’ contention that due process at Bagram was not impractical, contending instead that the extension of federal judicial oversight could be disruptive of military operations. And they pointedly rejected the legal significance of the fact that the petitioners had been rendered into Afghanistan, arguing
the notion that the United States deliberately confined the detainees in the theater of war rather than at, for example, Guantánamo, is not only unsupported by the evidence, it is not supported by reason. To have made such a deliberate decision to “turn off the Constitution” would have required the military commanders or other Executive officials making the situs determination to anticipate the complex litigation history set forth above and predict the Boumediene decision long before it came down.
On February 15, 2011, Bates granted the Maqaleh lawyers’ joint motion to amend their filing in light of new evidence and information. The amended petition, which was submitted on April 6, cites changes in government policy and interpretations of applicable law (notably the Obama administration’s acknowledgement that its detention authority under the AUMF is subject to international law, which prohibits arbitrary and indefinite detention). It also cites the June 8, 2010 announcement by the administration that it intends to maintain “indefinite” control over a portion of the new $60 million, 1,000-person detention facility in Parwan that had opened on the airbase the previous December. (The name Bagram has stuck to the new facility, which reproduces the physical structure of communal cells and cage-like grilled ceilings through which detainees are monitored.) The US has also asserted its right to continue to detain indefinitely non-Afghan prisoners — like the petitioners — who were or could in the future be transferred there from other countries.
Obama’s Bagram
On January 27, 2009, Secretary of Defense Robert Gates testified before the Senate Armed Services Committee that the number of Bagram detainees was in the “ballpark” of 615. The Defense Department refused to release their names, nationalities, dates or sites of capture. The stonewalling and secrecy was reminiscent of the Bush administration’s position on Guantánamo where the identities of detainees had remained classified until the complete list was leaked by a military lawyer, Matt Diaz, in a 2005 Valentine’s Day card sent anonymously to the Center for Constitutional Rights. (In 2007, Diaz was court-martialed and given a six-month jail sentence.) In September 2009, the ACLU submitted a FOIA request for information about all detainees confined at Bagram. In January 2010, the Defense Department released a list of 645 names — the number at the time the FOIA request was submitted, not answered — but redacted all other information.
By March 2011, the number of detainees in US custody had reached 1,700 and by April it was more than 1,900; 41 were non-Afghans, including Maqaleh, al-Bakri and al-Najar. Since Obama took office, the prisoner population at Bagram has more than tripled, and it is more than ten times the current size of Guantánamo. [8]
Meanwhile, as part of the review and reform of detainee operations in Afghanistan, on August 29, 2009, Gen. Douglas Stone, who had been tasked to conduct an investigation, reportedly told senior military officials that at least two thirds of Bagram detainees pose no threat to the US or Afghanistan, and recommended their release. (His 700-page report remains classified.) In September, the Obama administration replaced Bagram’s existing review procedures with a new Detainee Review Board process that, for all intents and purposes, is identical to the CSRTs the Supreme Court had determined to be deficient for Guantánamo.
In February 2011, Daphne Eviatar and Gabor Rona of Human Rights First attended several detainee review hearings. According to their report, the 15 US soldiers who had been assigned to represent nearly 1,700 detainees received 35 hours of training for this role. They had neither legal expertise nor competence in the language and culture of the men they represented. As a result, “None seemed to have independently investigated the case, collected evidence on the detainee’s behalf, demanded that the government produce evidence or asked even the most obvious questions challenging the evidence that the government presented.” They elaborated: “In some cases, the evidence against the detainee appeared to be as thin as a mere claim by US soldiers that they found bomb-making materials in a house nearby…. In other cases, where the government claimed to have more specific evidence, such as explosive residue found on the detainee’s body or clothing, the evidence often raised more questions than it answered, such as whether the residue was found before or after detaining authorities showed the explosive materials to the detainee, and whether he handled them at that time. Yet those questions were never asked.” [9]
The Detainee Review Boards have several possible outcomes including release (subject to Pentagon approval), continued detention in US custody or transfer to Afghan custody either for prosecution or for a process of reconciliation and rehabilitation. The Afghan legal system, by the State Department’s own account, is corrupt, trial procedures rarely meet the baseline of international due process standards and torture is common. Detainees transferred from US to Afghan custody are imprisoned at Pul-e Charki, a Soviet-era facility that the US renovated in 2007; it is known locally as Block D. (According to Human Rights First, more than 250 Afghan detainees repatriated from Guantánamo were dispatched to Pul-e Charki and 160 were put on trial, often on evidence deemed too flimsy even for the US.) As the Afghan government prepares to assume control of Bagram in late 2011, the US will relocate and expand its own detention operations with the construction of three large permanent facilities at locations as yet undisclosed. [10]
In some ways, the current state of Bagram closely resembles Guantánamo circa 2004, with an inadequate review process and arbitrary decision-making about the continued detention or transfer of detainees. It has supplanted Guantánamo circa 2002 as a place where detainees can be held indefinitely with no access to lawyers and to which people can be transferred from other countries at the sole discretion of the executive branch.
Obama and the Torture Legacy
Obama’s 2008 victory had provided a hopeful moment for opponents of US torture, who were inspired by his day-two announcement that the CIA black sites would be shuttered and the agency would henceforth be subject to the interrogation rules in the revised Army Field Manual (2006). That optimism faded as Obama bowed to political expediency, maintaining many Bush-era policies rather than leading the way to their termination, and deflecting calls for accountability with his “looking forward, not backward” mantra. At least, resilient supporters thought, torture was a thing of the past.
In November 2009, the media began reporting Red Cross concerns about continuing torture in Afghanistan. In April 2010, the BBC reported testimonies of nine prisoners who said they had been subjected to beatings, sexual humiliation, sleep deprivation, isolation and other stress and duress tactics at a facility on the Bagram airbase called “Tor jail,” which translates in Pashtu as the “black jail,” separate from the new prison. On May 11, the Red Cross confirmed the existence of a secret prison to which it had no access. And on October 14, the Open Society Foundation published an investigative report into these allegations. [11] Eighteen of the 20 released detainees who were interviewed by the Foundation had been detained at Tor jail, half of them in the period since Obama took office.
Tor jail is run not by the CIA but by the Defense Intelligence Agency and the Joint Special Operations Command (JSOC), which has authorization to use interrogation methods detailed in Appendix M to the Army Field Manual. Appendix M is designed to induce debility, disorientation and dread in captured persons, and contains tactics otherwise expunged from US interrogators’ playbooks. It permits captives to be held in isolation at detention sites for an initial 30 days, a period that can be extended up to 90 days. Indeed, the US is the only NATO country with forces in Afghanistan that employs protracted detention; all others either release detainees or transfer them to Afghan custody within 96 hours.
When news of the secret detention facility at Bagram broke, Defense Department officials initially denied its existence. As the evidence accreted, the Obama administration played the euphemism card, asserting that it is an “interrogation facility,” not a “detention site,” and therefore neither does the Red Cross have a right to see those held there nor do the regular interrogation rules apply. Allegations of abuse also have emerged about JSOC units at undisclosed forward operating bases across the country.
The torture legacy has played a powerful if under-analyzed role in the development of Obama’s war policies in Afghanistan. The abuse and degradation of prisoners, past and present, has had a confounding effect on the “hearts and minds” agenda of counterinsurgency proponents like Gen. David Petraeus. Paradoxically, Petraeus urged both more interrogations at forward operating bases to elicit immediately actionable military intelligence, and more transparency and humane treatment to win the trust and good will of Afghans. But night raids, indiscriminate arrests and protracted incommunicado detention have ineluctably damaged the latter. Even more damaging has been the use of Predator drones with their high toll of civilians in both Afghanistan and Pakistan. The preference to kill rather than capture suspected militants started picking up in 2006 as detention operations came under increasing judicial scrutiny and negative publicity. The domestic political fallout and enduring debates around interrogation and detention, which Obama described in a May 2009 speech to the nation as a “legal mess” that he had inherited, factor into his administration’s massive increase in the use of drones and other types of kill operations.
On February 16, 2011, then-CIA director Leon Panetta was asked by the Senate Intelligence Committee what the Obama administration would do if bin Laden or his lieutenant, Ayman al-Zawahiri, were captured. “We would probably move them quickly into military jurisdiction at Bagram for questioning and then eventually move them probably to Guantánamo,” Panetta responded. At the time, the statement seemed both wishful and oddly dissonant in light of the fact that Obama maintained his desire to close Guantánamo. Imprisoning bin Laden there would give the facility and the Bush record a new patina of legitimacy. As it happened, bin Laden was not captured and taken into military jurisdiction for questioning; he was killed by Special Forces troops on May 2 in a joint CIA-JSOC raid on his compound in Abbottabad, Pakistan. Afterward, Obama addressed the nation: “Today, justice has been done.”
Most Americans, including many law of war experts, accepted that the kill operation was legal because bin Laden was a legitimate military target. The CIA announced that troves of valuable intelligence were seized in the compound, suggesting that it included information about planning of future operations. What intelligence-gathering opportunity was lost to the deep sea with bin Laden’s dead body? That question was not the one that interested the public in the aftermath of the operation; rather, it was whether torture had provided the information that led to bin Laden’s hideout. The White House was reportedly shocked that waterboarding enthusiasts had so quickly and thoroughly seized the moment to proclaim this operation as a victory for torture.
Upon the ten-year anniversary of September 11, it is salutary to recall the original reason that interrogation and detention were so central to the “war on terror”: to gather vital intelligence about al-Qaeda. Thousands of people have passed through US custody for that very purpose, and hundreds remain, but the decision to employ abusive and degrading tactics was a choice rather than a necessity. As yet, there is no complete answer to the question of why Obama authorized the killing of bin Laden rather than capturing him for questioning and future trial, when capture was a considered possibility, as Panetta’s February statement attested. But certainly the taint of torture and the ignominious reputation of Guantánamo and Bagram are part of the answer.
Endnotes
[1] Chris Mackey and Greg Miller, The Interrogators: Inside the Secret War Against Al-Qaeda (New York: Little, Brown and Company, 2004), p. 85.
[2] Ibid., p. 115.
[3] See the 2004 report by Vice Adm. Albert Church III (a redacted version was released in 2006); and the 2008 Senate Armed Services Committee report of its inquiry into the treatment of detainees in US custody.
[4] Moazzam Begg (with Victoria Brittain), Enemy Combatant: My Imprisonment at Guantánamo, Bagram and Kandahar (New York: New Press, 2006), p. 111.
[5] Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), p. 186.
[6] Mackey and Miller, p. 247.
[7] Amnesty International, Out of Sight, Out of Mind, Out of Court? The Right of Bagram Detainees to Judicial Review (London, February 2009), p. 4.
[8] Human Rights First, Detained and Denied in Afghanistan: How To Make US Detention Comply with the Law (May 2011).
[9] Ibid.
[10] Spencer Ackerman, “Lockdown: US Builds New Jails Across Afghanistan,” Wired, July 12, 2011.
[11] Open Society Foundation, Confinement Conditions at a US Screening Facility on Bagram Airbase, Policy Brief 3 (October 14, 2010).
