By William Fisher
In the aftermath of the Supreme Court decision canceling the blank check President Bush gave himself, the Bush Administration may finally forced into trying to get Congress to pass legislation establishing a Constitutional way to bring Guantanamo Bay detainees to trial – or free them.
But it may also find itself having to deal with another huge headache: the prisoners we don’t know about.
These are the people held at Bagram airbase in Afghanistan, and in the CIA’s so-called “black sites” in Eastern Europe and elsewhere.
The Pentagon chose Guantanamo because they thought it was a law-free zone beyond the reach of the US justice system, and they now know that is unacceptable. And that, according to the Court’s decision, means they were also wrong about prisoners they now hold in other overseas locations.
As long as prisoners are under US control, they are subject to the same protections as the Supreme Court has now said must be afforded to those at GITMO.
The Supreme Court ruled that the military tribunals set up by President Bush were unlawful because Congress hadn't expressly authorized the Administration to establish them. The justices also said the tribunals violate the 1949 Geneva Conventions governing the treatment of war prisoners and the Uniform Code of Military Justice, which guarantees such protections as the right to be present at trial. Lawyers for detainees said this may allow all of the 450 inmates held at Guantanamo access to federal courts, which until now have refused to hear their cases.
But the Supreme Court has now made the issue a lot broader than Guantanamo. US military and intelligence services continue to carry out interrogations in other locations, including at the US base at Bagram, Afghanistan, where, according to news sources, "interrogators are sometimes able to use more aggressive and creative tactics in questioning detainees than their counterparts at Guantanamo Bay can employ."
If human rights groups can be believed, there are some 500 people held at Bagram alone. As far as we know, these prisoners have been designated as “enemy combatants” and some have been held for as long as three or four years without access to lawyers, no information about the charges against them, and only hit-and-miss reviews of their status.
Even after New York Times reporters Tim Golden and Eric Schmitt first exposed Bagram, the subject has received virtually no public attention.
Golden and Schmitt wrote, ““Some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guantánamo to challenge their detention in United States courts.”
They added, “Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the international Red Cross and refuses to make public the names of those held there…From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its Cuban counterpart. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard.”
The Times reported that the detainee population at Bagram rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures. The increase was in part the result of a Bush administration decision to shut off the flow of detainees into Guantánamo after the Supreme Court ruled that those prisoners had some basic due-process rights under United States law.
A number of detainees are known to have died in US custody in Afghanistan. American military investigations have determined that homicide was the cause of death in four of them. The cause of death of the others remains undetermined. Nor is it known how many others may have died in US-controlled military camps in other Afghan areas where conflict was taking place, known as Forward Operating Bases.
Bagram has often been described by the US military as a temporary “screening center” from which some detainees would be released and others transferred to Guantanamo. But as Guantanamo. became a lightning rod for worldwide criticism of Bush Administration detention policies, transfers to Cuba were cancelled.
In recent months, there have been increasing press reports describing physical and psychological mistreatment of those who are being interrogated.
In contrast to the detention center at Guantanamo Bay, where military lawyers, news reporters and the Red Cross received occasional access to monitor prisoner conditions and treatment, the CIA's overseas interrogation facilities are off-limits to outsiders, and often even to other government agencies.
In addition to Bagram, prisoners from Afghanistan and other countries were believed to be detained at two other facilities in Afghanistan -- "the Salt Pit" in Kabul and "the Discotheque," north of Kabul. With these two facilities now closed, Bagram has become the main detention site.
In addition, the US is believed to house detainees in what Dana Priest of The Washington Post described as the CIA’s “black sites,” and on Diego Garcia, an Indian Ocean island leased by the US from Britain.
The hundreds of detainees currently held in these US-controlled facilities have no recourse to human rights safeguards such as the right to challenge their arrest or detention. Some have been detained without charge or trial for extended periods, without access to lawyers or relatives.
The International Committee of the Red Cross has been able to visit detainees in Bagram, but not in other unacknowledged places of detention.
US military commanders in Afghanistan have also refused to let a United Nations’ human rights investigator visit ‘secret’ American prisons there or interview detainees, despite widespread reports of abusive practices, including torture.
The Egyptian-born UN official, Cherif Bassiouni, issued a report critical of US and other Coalition human rights abuses. Shortly after that, the UN eliminated his position, reportedly under pressure from Washington to change his mandate to remove investigation of the US military.
The indefinite, incommunicado or virtually incommunicado, and arbitrary detention of these people may in itself amount to cruel, inhuman or degrading treatment and leaves them at risk of further ill-treatment and torture during interrogations.
In all these locations, the CIA and its intelligence service allies are free from the scrutiny of military lawyers steeped in the international laws of war, and thus have the leeway to exert physically and psychologically aggressive techniques, according to national security officials and US and European intelligence officers.
"Stress and duress" techniques reportedly described by US national security officers include keeping prisoners standing or kneeling for hours in black hoods; binding them in awkward, painful positions; depriving them of sleep with 24-hour lights; subjecting them to loud noises; "softening up" by beating; throwing them blindfolded into walls; and depriving wounded prisoners of adequate pain control
Brad Adams, Asia Director for Human Rights Watch, says, the US “appears to want to sweep human rights problems in Afghanistan under the carpet." The Supreme Court has now ruled that unacceptable.
In the Supreme Court decision, one of the justices in the majority, Stephen Breyer, said, "Nothing prevents the president from returning to Congress to seek the authority he believes necessary.''
So the Administration and Congress will have to act, though precisely how they will act is unclear. There is always a possibility that the White House may persuade Congress to craft a law that makes just enough changes in US detention policies to satisfy the Supreme Court’s decision, but which largely endorses what the President has been doing all along.
That is also how Congress may deal with the “warrantless wiretaps” carried out by the National Security Agency. It may simply change FISA, the Foreign Intelligence Surveillance Act, to legalize what the Administration is already doing.
This approach may allow an election-year Congress to crow about reclaiming its rightful power as one of the three coequal branches of our Government, and restored the checks and balances the framers of the Constitution considered so important.
But it will do nothing to force Congress to exercise the rigorous oversight the framers had in mind. Bashing “activist judges” is a lot easier.
We can live in hope, but meaningful oversight is unlikely to happen as long as one political party controls the White House and both houses of Congress.