Tuesday, February 24, 2009

What About Bagram?

By William Fisher

While human rights and legal advocacy groups applauded President Barack Obama’s decision to close the military prison at Guantanamo Bay within a year, many immediately raised another thorny question: “What About Bagram?”

Their answer came as a shock and a surprise. In a brief filing in federal court last week, lawyers from President Barack Obama’s Department of Justice (DOJ) said they would adopt the same position taken by the Bush administration -- that detainees held at the Bagram air base in Afghanistan have no right to challenge their detention in U.S. courts.

The U.S. government is holding more than 600 prisoners at Bagram. Some claim they are victims of “extraordinary rendition” by the U.S. Central Intelligence Agency (CIA), while many more say they have been tortured and abused at the facility just outside Kabul.

Marjorie Cohn, president of the National Lawyers Guild, told IPS, “In Boumediene v. Bush, the Supreme Court held that Guantánamo detainees have a right to habeas corpus to challenge their detention but it did not limit that right to Guantánamo. Justice Kennedy said the Court would not look kindly on the executive who imprisons people in other countries to avoid the jurisdiction of U.S. courts.”

She added, “The Obama administration is reportedly sending detainees to Bagram instead of Guantánamo. It is alarming that hundreds of people in U.S. custody in Iraq and Afghanistan will evidently be denied access to courts to review their ‘enemy combatant’ designations.”

Barbara Olshansky, lead counsel for three Bagram detainees and a visiting professor at Stanford Law School, said she was deeply disappointed that the Obama administration had decided to "adhere to a position that has contributed to making our country a pariah around the world for its flagrant disregard of people's human rights."

She said she hoped that the Obama administration was merely signaling it was still working on its position regarding the detainee issue.

The U.S. District Court held a hearing in early January on separate challenges filed on behalf of four detainees taken to Bagram from outside Afghanistan. At the hearing, Bush administration lawyers argued that Bagram detainees were different from those held at Guantanamo, and could pose a security threat if released.

That policy will now be reviewed in U.S. court, where advocacy groups will argue that Bagram detainees should have the same rights as those in Guantanamo, including the right to a hearing before a neutral judge.

The issue will likely generate even more contention in coming months, as
Obama deploys thousands of extra U.S. troops to Afghanistan and a $60-million expansion doubles the capacity of the Bagram Theatre Internment Facility (BTIF).

Some observers are saying they are not surprised by the Obama Administration’s decision to follow the Bush model, pointing out that this is the second time that’s happened during the month since the new president took office.

In a controversial case in San Francisco earlier this month, Obama lawyers declined to change the earlier Bush Administration’s invocation of the “state secrets privilege” to attempt to prevent a federal court from ever hearing a lawsuit brought by an Ethiopian-born British resident who claims he was a victim of “extraordinary rendition.”

Binyam Mohamed, who until yesterday was a prisoner at Guantanamo Bay, Cuba, is attempting to sue a company known as Jeppesen Dataplan – a subsidiary of The Boeing Corporation – for providing knowingly providing the Central Intelligence Agency (CIA) with logistical support for the aircraft it used in his “extraordinary rendition.”

Mohamed was released from Guantanamo and returned to the United Kingdom yeserday, with no charges ever filed against him. He had been on a hunger strike at the Caribbean military prison.

A separate lawsuit he filed in the U.K. has caused a furor there, where officials refused to make public documents that Mohamed’s lawyers say show that their client was kidnapped and tortured in several secret prisons, and that the U.K. authorities were complicit with the C.I.A. in his treatment. Opposition spokesmen in Britain claimed the U.S. had threatened to stop sharing intelligence with the U.K. if the documents were made public. The British Foreign Secretary, David Milliband, denied there was any threat.

As he arrived back in the country, the 30-year-old claimed he was tortured while being held on suspicion of terrorism with the full knowledge of British intelligence.
Speaking from London's RAF Northolt, Mohamed's lawyer, Clive Stafford Smith, said he was "100 per cent certain" that the truth about his client's treatment would be made public.

A United Nations report last week singled out the Bagram facility for criticism. While the Red Cross was allowed to visit detainees, the report said, the Red Cross findings are kept secret and the U.S. military has denied UN requests for similar visits.

"There are reports that some persons have been in detention at Bagram for as
long as five years," the report says. "Some ex-detainees allege being subjected to severe torture, even sexual abuse. Ex-detainees also allege that they were held in cages containing between 15 to 20 men and that two detainees died in questionable circumstances while in custody."

In a briefing paper, Amnesty International urged President Obama and his administration to discontinue what it calls the "unlawful detention policies" of the Bush administration and ensure that detainees held at Bagram have access to U.S. courts so they may challenge their detentions.

The paper, entitled, “Out of sight, out of mind, out of court?,” argues for the right of Bagram detainees to judicial review. The organization sent to the paper to the new U.S. administration.

"Judicial review is a basic safeguard against executive abuse and a protection against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another," the briefing paper said.

"In the absence of judicial oversight, detainees in Bagram, as at Guantanamo, have been subjected to just such abuses. Even children have not been spared."

Amnesty said among Bagram's some 600 detainees were Afghan nationals, but also individuals of other nationalities.

"Some have been held for years," it said. "The U.S. authorities must now ensure that all U.S. detentions in Afghanistan comply with international law."

During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.

At Bagram, prisoners’ cases are reviewed by the U.S. military every six months.

The next major detention question likely to face the Obama Administration is what to do with Ali Saleh Kahlah al-Marri, the last ‘enemy combatant imprisoned in the United States. Al-Marri has been held in isolation at a naval brig in South Carolina for more than five years. He has never stood trial or been convicted of any crime.

On September 10th, 2001, al-Marri, who is a citizen of Qatar, arrived in the United States with his wife and children. He had a student visa and said he was here to study computer programming at a university in Peoria, Illinois. That December, he was arrested as a material witness in the 9/11 attacks. In June 2003, al-Marri was supposed to stand trial. But President Bush ordered the military to seize him and hold him indefinitely, thus keeping al-Marri out of court but also putting him into legal limbo.

During the first month of the Obama Administration, there has been virtually no mention of the al-Marri case.

Terms of Confinement

By William Fisher

A leading human rights organization charges that contrary to recent U.S. Government reports that found prisoners at Guantanamo Bay, Cuba, being treated humanely, “The men at Guantánamo are deteriorating at a rapid rate” due to “harsh conditions that continue to this day, despite a few cosmetic changes to their routines.”

The Center for Constitutional Rights (CCR) released a report on the current conditions in Camps 5, 6, and Echo following a press conference convened late last week by Admiral Patrick M. Walsh, the vice chief of naval operations. In his own report on conditions at Guantanamo, delivered to the White House, Walsh determined that conditions at the base meet the standards of the Geneva Conventions.

CCR’s report, “Conditions of Confinement at Guantanamo: Still in Violation of the Law,” disputes that conclusion. It covers conditions at Guantánamo in January and February 2009 and includes new eyewitness accounts from attorneys and detainees. The authors address what they call the continuing abusive conditions at the prison camp, including conditions of confinement that they say violate U.S. obligations under the Geneva Conventions, the U.S. Constitution and international human rights law.

CCR Staff Attorney Pardiss Kebriaei said the GITMO detainees “are caught in a vicious cycle where their isolation causes psychological damage, which causes them to act out, which brings more abuse and keeps them in isolation. If they are going to be there another year, or even another day, this has to end.”

“Detainees at Guantanamo have continued to suffer from solitary confinement, psychological abuse, abusive force-feeding of hunger strikers, religious abuse, and physical abuse and threats of violence from guards and Immediate Reaction Force (IRF) teams,” the report charged.

It claimed the majority of the men being detained “are in isolation. They go weeks without seeing the sun. Fluorescent lights, however, remain on 24 hours a day in Camp 5.” According to the report, “improvements” cited by the military are, by and large, public relations activities rather than meaningful improvements in detainees’ conditions.

The CCR report takes issue with two recent U.S. government pronouncements. On February 13, Colonel Bruce Vargo, commander of the Joint Detention Group at Guantánamo, stated that, “There are no solitary confinement detention areas” at GITMO and “Detainees typically are able to communicate with other detainees either face-to-face or by spoken word from their cells throughout the day.”

CCR attorneys say this means that the men can yell through the metal food slot in the solid steel doors of their cells when it is left open and through the crack between the door and the floor.

The organization also challenged Admiral Walsh’s conclusion that "all detainees are well protected from violence." Walsh said guards or others who engaged in abuse were reprimanded or immediately relieved of their jobs, depending on the nature of the offense.

But Walsh’s report acknowledged that the continued detention of prisoners who have been approved for release has spawned widespread frustration and anxiety, which has led to protests and friction with guards. Fifty-nine detainees have already been cleared for release but remain at the prison because the U.S. says it cannot find countries to accept them.

"We conclude that certainty regarding the detainees' future has a direct correlation to detainee behavior and, therefore, conditions inside the camp population."

Walsh led a 13-day investigation at the military prison, interviewing staff and detainees and conducting announced and unannounced inspections round the clock.

He said he substantiated allegations of abuse that included insults and the preemptive use of pepper spray. Walsh’s report focused on current conditions at Guantanamo and was not an attempt to review its seven-year history.

But CCR and other human rights and civil liberties groups said that solitary confinement has led to the deterioration of the physical and psychological health of detainees, some of whom are force-fed because they are on hunger strikes.

A spokesman for the International Committee of the Red Cross, the only organization with unfettered access to the prisoners, said the group supports the recommendations for increased socialization for all detainees but disagreed with Walsh's conclusion that force-feeding is in compliance with the Geneva Conventions.

"For ICRC it is an issue of human dignity," said Bernard Barrett, a spokesman for the agency. "Freely made choices and the preservation of human dignity are critical."

Their report details multiple cases of abuse occurring in the last month and a half. One detainee in Camp 6 wrote to his attorney in January 2009, “As I told you, we are in very bad condition, suffering from aggression, beating and IRF (Immediate Reaction Force) teams, as well as the inability to sleep except for a few hours. Soldiers here are on a high alert state and if one of us dares to leave his cell and comes back without any harm, he is considered as a man who survived an inevitable danger.”

The CCR report said hunger strikes continue among a large number of men at Guantanamo. “Hunger strikers are brutally force-fed using a restraint chair and often unsanitary feeding tubes, and are beaten for refusing food, a practice that continued within the last month and a half.” Force-feeding hunger strikers is considered by the World Medical Association to be a violation of medical ethics and has continued unabated since President Obama’s Executive Order.

“Detainees are still denied access to communal prayer,” the CCR report said. “Military officials continue to classify hearing a call to prayer through a food slot as communal prayer, which does not comport with the requirements of Islam.” It adds, “There has been no Muslim chaplain at Guantanamo since 2003, despite repeated requests.”

The report also charged that detainees are “subject to body search procedures that require the men to subject themselves to a scanner that visually strips the men naked each time they leave their cells for attorney meetings or recreation. This humiliating and degrading experience, particularly given the men’s strong religious background, has led them to stay in their cells all day, refusing attorney meetings and recreation entirely.”

The CCR report recommends closing Camps 5, 6 and Echo immediately, ending solitary confinement and the religious abuse of detainees, stopping the use of IRF teams and all other physical abuse of detainees, ending the feeding of individuals against their will or under coercive circumstances,allowing detainees immediate access to independent medical and psychological professionals and ceasing the practice of forcible medication.

CCR Executive Director Vincent Warren called on President Barack Obama to “quickly remedy and end the Guantánamo created by his predecessor (former President George W. Bush), not embrace a whitewash of it.”

During his first week in office, President Obama ordered the Guantanamo prison camp to be closed within a year and named Attorney General Eric Holder to head a task force to review the case file of each of the 245 detainees to determine what to do with them. About 20 prisoners were scheduled to face trials by Military Commission but Obama suspended these proceedings while his administration reviews its judicial options.

CCR has been responsible for organizing and coordinating more than 500 lawyers across the country in order to represent the men at Guantanamo.