Habeas Challenges for Bagram Prisoners

By William Fisher

Four men who have been imprisoned for over a year – some for almost two years – are going to U.S. federal court to challenge their detention at the notorious Bagram Air Base in Afghanistan.

The men, who their lawyers say have never engaged in hostilities against the U.S. and are not members of groups that have engaged in hostilities against the U.S., have never been told why they are being detained, permitted to speak with a lawyer or given a meaningful opportunity to challenge their detention before a court or impartial administrative board.

The habeas corpus petitions were filed by the American Civil Liberties Union (ACLU) in the U.S. District Court for the District of Columbia. The petitions ask that the four men to be given access to lawyers and be allowed to challenge the legality of their detention in court.

Jonathan Hafetz, an attorney with the American Civil Liberties Union (ACLU), told IPS, “These habeas petitions seek the basic right for an individual imprisoned indefinitely by the executive to challenge his detention in a court of law. For far too long, the U.S. has been seizing people in Afghanistan, including from their homes, and jailing them for years, without charge or a fair hearing. This serves neither out values nor our security."

He added, "A court must have a chance to decide whether it's lawful to continue imprisoning these men without charge. The U.S. practice of indefinitely detaining hundreds of people at Bagram without access to lawyers, judicial review or a fair process is a stain on our reputation in the world."

One of the petitions filed today is on behalf of Afghan brothers Sibghatullah Jalatzai, who was a translator for the U.S. military for four years before his detention nearly 20 months ago, and Samiullah Jalatzai, who was arrested without explanation at his workplace nearly 23 months ago. The second petition is on behalf of Afghan government employee Haji Abdul Wahid and his nephew Zia-ur-Rahman, who were taken from their homes by the U.S. military during a massive neighborhood sweep more than one year ago.

The petitions charge that the military does not have the authority to detain these men and that the lack of access to a court or fair process to challenge their detention violates the U.S. Constitution and international law. Attorneys on the case include ACLU lawyers and Tina Foster of the International Justice Network, which coordinates Bagram habeas litigation.

The United States is the only nation among the NATO countries participating in the conflict in Afghanistan that subjects individuals it captures to indefinite military detention. Other NATO nations reportedly detain individuals for a maximum of 96 hours and then either release them or transfer them to Afghan custody.

The ACLU said, “There is growing concern that Bagram has become the new Guantánamo, except with hundreds more prisoners held indefinitely, in harsher conditions and with less due process.”

In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department recently released for the first time a list containing the names of 645 prisoners who were detained at Bagram as of September 2009, when the lawsuit was filed. Other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.

In April 2009, the ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan. The ACLU is asking the Obama administration to make public records pertaining to the number of people currently detained at Bagram, their names, citizenship, place of capture and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."

The Defense Department (DOD) partially complied with the ACLU request last month when it turned over the names of its prisoners at Bagram.

But human rights advocates have a decidedly mixed record in their attempts to persuade the courts to grant customary due process rights to Bagram detainees. In one of the few earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them -- two Yemenis and one Tunisian –had the right to petition U.S. courts for their release.

But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan, rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the U.S. and Afghanistan. Judge Bates dismissed Wazir’s petition.

Wazir, an Afghan civilian who has been held at Bagram without charge for more than six years, was captured in Pakistan in 2002. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.

The U.S. government's Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information is publically available about the secrecy-shrouded facility or the prisoners held there.

The U.S. government has been detaining an unknown number of prisoners at the Bagram detention facility since 2002, and recent news reports indicate that the more than 600 individuals are currently detained there – some of whom have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment. The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, at least two prisoners have died there. There is public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantánamo.

The ACLU says, “Although the nation is embroiled in an intense public debate about U.S. policy pertaining to the detention and treatment of prisoners in U.S. custody, most Americans remain in the dark about the basic facts about Bagram. When prisoners are in U.S. custody and under U.S. control – no matter the location – our values and commitment to the rule of law are at stake. Now that President Obama has taken the positive step of ordering Guantánamo shut down, it is critical that we don't permit 'other Gitmos' to continue elsewhere.”

A recent investigation by journalist Anand Gopal revealed the existence of another prison on Bagram Air Base – one so secret that even the Red Cross does not have access to. It is dubbed the ‘Black Jail’ and is reportedly run by US Special Forces.