Bagram is not Guantánamo

Regardless of the outcome of the US presidential elections on 6 November, human rights were always going to be a loser in this campaign. Four years ago, the closure of Guantánamo Bay provided a central plank of President Obama’s “yes, we can” mantra; this time it did not feature at all. The American Civil Liberties Union accused the two main political parties of a “tacit agreement” to keep it off the agenda.

While Guantánamo Bay has often been described as the “tip of the iceberg” of a network of illegal detention facilities around the world, the even bigger and relatively unknown Bagram prison in Afghanistan lurks beneath the radar in icy waters. Prisoner abuse and deaths there in 2002 provided the backdrop to the 2007 Oscar-winning documentary film Taxi to the Dark Side, but Bagram’s prisoners have never been the subject of much debate, let alone considered an election issue of any sort. In the first four years under President Obama, 72 prisoners have been released from Guantánamo; in that same period, the prisoner population at Bagram has risen to over 3000, a five-fold increase.

Opened in early 2002, Bagram was initially intended as a screening centre for prisoners. Following the Supreme Court landmark ruling in 2004 in the Rasul v Bush case which held that US courts could decide whether prisoners at Guantánamo Bay were being held lawfully, that they had habeas corpus rights, the prisoner population at Bagram has continued to grow steadily, particularly in the past four years with a new facility added in 2009. The prison operates in “rigorous secrecy”, with just the International Red Cross having access to prisoners. Bagram prisoners are not afforded the luxury of habeas corpus reviews of their detention.

Bagram has served as a staging post for detention at Guantánamo Bay and the CIA’s extraordinary rendition programme and has long been synonymous with torture and abuse, and later arbitrary detention. Former prisoners and their lawyers have described Bagram as being “worse” than Guantánamo. Although reports of prisoner deaths and extreme interrogation techniques relate to 2002 and are reported to have stopped since, a recent report by Human Rights Watch suggests that Libyan dissidents may have been subject to waterboarding there right up until 2004. In 2010, the BBC, via the Red Cross, reported the existence of a secret facility at Bagram where prisoners reported abuse.

This may not be unusual in a country like Afghanistan, where the use of torture in prisons is rampant. A UN report last year detailing “systematic” torture and abuse in Afghan jails led NATO to halt the handover of prisoners to the Afghan authorities temporarily. More recently, a current High Court challenge in the UK has halted the transfer of prisoners by the Ministry of Defence to the Afghan authorities due to the risk of torture; a moratorium on transfers had been introduced in 2010.

The Afghan authorities have for years sought the handover of the prison at Bagram as a question of sovereignty. This finally happened, at least nominally, in a low-key ceremony on 10 September 2012. Following negotiations, in March 2012 the US and Afghan authorities signed a memorandum of understanding (MoU) under which all prisoners held by the US, around 3000 in number, were transferred to the Afghan authorities by September. This did not include the 600 prisoners captured and held since March. The deal also required the Afghan authorities to sign up to a regime instituting administrative detention, considered by some Afghan officials and lawyers to be unconstitutional. The handover has been controversial; shortly after the agreement was made, Amnesty International raised concerns about it, particularly over the treatment of prisoners by the Afghan authorities.

In a report, “Remaking Bagram”, published by the Open Society Foundations (OSF) on 6 September, an explanation is given of what this handover means to the US: “that it can continue to capture, hold, and perhaps detain individuals there for the foreseeable future” and to Afghanistan: “the creation of an [unconstitutional] Afghan internment regime.”

The report outlines a number of concerns, particularly over the creation of an internment regime in Afghanistan, allowing a sanctioned system of arbitrary detention to exist in a country with a history of prisoner abuse, particularly of those considered to be insurgents. It also raises concerns about continuing US involvement and effective control over the prison, and particularly the fact that around 50 foreign nationals held at the prison are not covered by the terms of the MoU.

Some of these foreign nationals, all victims of extraordinary rendition, petitioned the US federal courts after the MoU was signed earlier this year to see if the new situation could extend the habeas corpus rights given to Guantánamo prisoners to them. In the case of Fadi Al Maqaleh, a 29-year old Yemeni “ghost” prisoner, held at Bagram without charge since 2003, a similar application, known as the Al Maqaleh I ruling, was dismissed in 2010 on appeal. Arguing that the new situation undermines that ruling, this new case, heard in July 2012 and in which judgment was made on 19 October, Al Maqaleh II, was joined with those of two other victims of extraordinary rendition held at Bagram for more than 9 years: Amin Al Bakir, a Yemeni who was kidnapped in Thailand, and Redha Al-Najar, a Tunisian who was picked up in Pakistan. The same judge who had accepted Al Maqaleh’s case in 2009, a decision reversed by the appeal court in 2010, ruled to uphold the latter judgment. The habeas corpus jurisdiction application was turned down again largely on the basis of location: Bagram is not Guantánamo and the US does not have sovereignty over it. A separate claim brought by a Pakistani prisoner, Hamidullah, captured when he was 14, was also dismissed; he argued that having been detained as a child he had a greater claim but the court did not find his juvenile status to be compelling. The prisoners were seeking to have US jurisdiction extended to them in the same way that the MoU has extended Afghan jurisdiction to Afghan prisoners. Distinguishing Bagram from Guantánamo in these rulings, Benjamin Wittes described them as “represent[ing] the end of the line for the possibility of Bagram habeas jurisdiction”.

In a separate case brought by a Bagram prisoner, this time before the British Supreme Court, judges ruled in an appeal case, on 31 October, that they could not compel the US authorities to release Yunus Rahmatullah, a Pakistani national, to British custody. Mr Rahmatullah was arrested in Iraq in 2004 by the British army and handed over to the US military who “rendered” him to Bagram, where he has been held without charge or trial ever since. Under a 2003 Memorandum of Understanding signed by the US, UK and Australia, any prisoners handed over to the US would be returned upon request; the agreement was not binding. While a lower UK court granted his habeas corpus application, which the Supreme Court upheld, due to an application by the Pakistani authorities seeking the release of a number of prisoners including Yunus Rahmatullah, made due to the change in situation and ongoing litigation by civil liberties campaigners there, the court accepted that the UK could do no more. The court did, however, also hold that Mr Rahmatullah’s rights had potentially been violated under the Geneva Conventions, a potential war crime.

In spite of the superficial changes and the release of 15 Afghan prisoners during the September handover, the outlook remains bleak. Another issue the OSF report raises is the risk of the new regime creating “the kind of indefinite detention limbo reminiscent of Guantanamo Bay”, making prolonged US involvement likely. Under President Obama, concerns have been raised from many quarters about Bagram becoming a “new” Guantánamo. As with the closure of Guantánamo, arbitrary detention and torture at Bagram is a challenge Obama failed to rise to in his first term; instead, his administration has actively exacerbated it. Along with the introduction of the National Defense Authorization Act [NDAA] 2012 in the US this year, extending arbitrary detention without charge or trial to the US mainland, this extension of a key policy of his predecessor, in a country that lies near the bottom of the global corruption index, is a clear indication that such policies are also a significant feature of his own government.