By William Fisher
Legal, diplomatic, religious and human rights authorities are struggling to be heard on what many consider to be the "Son of Guantánamo" -- a secret prison in Afghanistan where the U.S. military is said to have been holding some 500 "enemy combatants" for as long as three or four years without access to lawyers.
The existence of the prison, located at Bagram airbase near Kabul, was reported last week by The New York Times. But the story was quickly relegated to back pages by the revelation that Dubai Ports World (DPW), a company owned by the government of the United Arab Emirates, was about to take over the management of as many as six major U.S. seaports.
On the Bagram prison issue, the views of David Cole, one of America’s foremost authorities on constitutional law, are typical of reactions obtained by us. Cole, a professor at Georgetown University law school in Washington, said, “The Bagram story raises serious questions about the Bush administration's unwillingness to be bound by law. The administration chose Guantanamo in the first place because it thought it was a law-free zone. Now that the Supreme Court has said that the administration is actually accountable to legal limits at Guantanamo, it is turning to other avenues to avoid accountability. The only real solution is to conform its conduct to the law, not to continue to evade legal responsibility for its actions.”
Times reporters Tim Golden and Eric Schmitt, who broke the Bagram story, 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, 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.
Bagram has often been described by the U.S. military as a temporary “screening center” from which some detainees would be released and others transferred to Guantanamo Bay, Cuba. But as Guantanamo became a lightning rod for worldwide criticism of Bush Administration detention policies, transfers to Cuba were cancelled.
William Rugh, retired U.S. ambassador to Yemen and the United Arab Emirates, told us that, while he has “no idea if the report is correct,” he believes that “all prisoners held by the United States, whether in Guantanamo or elsewhere, ought to be brought promptly to trial of some kind and afforded the right to be represented by an attorney. If the U.S. government persuades the judge that material evidence to be presented at the trial is legitimately classified, the trial could be closed to the public but there should be a trial.”
The views of the U.S. human rights community were typified by Deborah Pearlstein, Director of the U.S. Law and Security Program for Human Rights First, a major advocacy group. She told us, “Apart from the ongoing harms to human rights, one of the most remarkable features of the U.S. detentions at Bagram and elsewhere is that four and a half years after September 11, the Administration continues to hold nearly 15,000 detainees worldwide without rights recognized under any domestic or international legal regime, and without a plan for how it might begin detaining people legally in what the Administration now calls the ‘long war’ going forward.”
And Amnesty International USA told us, “Because of on-going and unresolved reports of torture and ill-treatment at Bagram Air Base, we continue to assert the necessity for open and honest investigations of all prisoner abuse cases and renovations of current prison facilities. We are concerned about reports that the base has been expanding in its current form, primarily because practices of secrecy such as the restriction of access to the International Committee of the Red Cross and the denial of detainee's rights are still known to be prevalent there.”
Noah S. Leavitt, an attorney who has worked with the International Law Commission of the United Nations in Geneva and the International Court of Justice in The Hague, took issue with the U.S. military's chief spokesman in Afghanistan, who is quoted as saying the U.S. is “providing the best possible living conditions and medical care in accordance with the principles of the Geneva Convention.”
That statement, Leavitt charged, “highlights the Administration's ignorance of or cavalier attitude toward long-established international law.”
He added, “The world will always be in catch-up mode when it comes to investigating, discovering and challenging the many ways the Bush Administration has undermined international legal norms. Just as they did for Guantanamo, concerned lawyers, journalists and researchers will have to figure out how to gain access to Bagram in order to bring the harsh treatment of the prisoners to the attention of the U.S. judicial system and the international community before any improvements are seen.”
Leaders of the religious community have also weighed in on the Bagram issue. George Hunsinger, McCord professor of theology at Princeton Theological Seminary and coordinator of Church Folks for a Better America, told us, “America must lead by example. If we continue to shame our country through secret prisons, torture and abuse, the world will no longer look to us as a beacon of hope, but as a dungeon of despair. The only way to defeat terrorism is by upholding our ideals not by trampling on them.”
Meanwhile, in a related development, a new round of reviews of the Guantánamo Bay detainees is set to begin, but attorneys say the U.S. government is flouting military and international law by preventing any meaningful consideration of proposed evidence and denying information to the detainees' lawyers. Experts from the Center for Constitutional Rights (CCR), which is currently overseeing 450 pro-bono attorneys representing the detainees, expressed “outrage about this violation of due process” and pointed to a new federal court decision vindicating their calls for transparent and fair hearings.
Last week, a U.S. District Judge ordered the Defense Department to release the names of hundreds of Guantanamo detainees and uncensored transcripts of their hearings by March 3.The CCR called the ruling “a major blow to the government's attempts to maintain total secrecy over its detainment process”. The Pentagon has said it will comply.
It is difficult to know whether the Bush Administration’s penchant for shooting itself in the feet is the result of incompetence or arrogance. After Abu Ghraib and Guantanamo, the Pentagon should have learned that getting out ahead of bad news is far better than waiting for its inevitable disclosure by the press. That’s Public Relations 101!