Bagram:
Graveyard Of the Geneva Conventions - Operation
Imperializing
8 February 2010By Andy Worthington
On January 15, 2010, the Pentagon released the first
ever list of prisoners held in the Bagram Theater
Internment Facility, the main US prison in Afghanistan
for the last eight years (PDF). An annotated version
of the list is available here. In a previous article,
“Dark Revelations in the Bagram Prisoner List,” I
examined the stories of the foreign prisoners rendered
to Bagram from other countries, and described the
legal challenges mounted on their behalf, explaining
how, last March, three of these men won their habeas
corpus petitions in a US court, in a ruling that has
been challenged by the Obama administration.
I also explained the use of a secret facility within
Bagram as part of a network of secret CIA prisons in
Afghanistan, and asked pointed questions about the
whereabouts of a number of men, known to have been
held in secret prisons in Afghanistan, who are not on
the list and whose apparent disappearance has never
been explained — and also covered this topic in
another recent article, “UN Secret Detention Report
Asks, ‘Where Are The CIA Ghost Prisoners?’”
In this second article based on the prisoner list, I
look specifically at Bagram as a prison in a war zone,
examining the murky relationship between the US and
Afghan authorities regarding the detention of
prisoners in wartime, asking whether the prison under
President Obama conforms to the Geneva Conventions,
and exposing new information about a network of secret
prisons in forward operating bases and other locations
around the country.
For those who fear that there are hundreds of
prisoners in Bagram who have been have been held for
many years, it should be noted that the limited
information provided by the list is somewhat
reassuring. Of the 645 prisoners listed, all but a
hundred or so were seized in the last two years. There
is a caveat, however. Based on the numbering system
used, it appears that a total of 3,000 prisoners have
been held at Bagram since the last of the regular
prisoners was transferred to Guantánamo in November
2003, but although some have been freed — as part of
an essentially inscrutable review process — it is not
known how many others have been transferred either to
Afghan custody (under a similarly inscrutable
arrangement) or to Block “D” of Kabul’s main prison,
Pol-i-Charki.
Refurbished by US forces in early 2007, Block “D” is
where 45 of the 46 Afghan prisoners repatriated from
Guantánamo since August 2007 have ended up. The one
exception is Mohamed Jawad, released last August, who
won his habeas corpus petition in a US court, but the
other 45 have been subjected to equally opaque
policies regarding their continued detention, and
decisions about whether they should be tried or
released, and, if the former, whether trials should be
based on anything other than dubious “evidence”
recycled from Guantánamo. The overriding question
about Block “D” — which lawyers are hoping to test in
US courts following the recent transfer of four
Afghans from Guantánamo — is whether Block “D” is
under Afghan or American control.
Despite these small reassurances about Bagram, I would
not like to give the impression that all is well with
the prison. The length of time that the majority of
the 645 men have been held may appear to be quite
reasonable — between one and two years — but this is
supposed to be a prison in a war zone, and those
detained should be screened on capture to make sure
that they have not been seized by mistake, and then
held for the duration of hostilities. Instead, there
is every indication that prisoners are, in general,
seized according to the defining characteristics of
the “War on Terror,” as played out in both Iraq and
Afghanistan — indiscriminate dragnets and raids based
on often dubious intelligence — which not only fail to
win “hearts and minds,” but also demonstrate a
unilateral (and illegal) reworking of the Geneva
Conventions.
The Geneva Conventions and the
prevention of torture
If there is any doubt about a wartime prisoner’s
status — because he is not wearing a uniform, for
example — he is entitled to an Article 5 competent
tribunal, held close to the time and place of capture,
at which he can call witnesses. The US military
pioneered these tribunals from Vietnam onwards, and
was preparing to undertake them in December 2001, when
the prisons at Kandahar and Bagram opened, until the
orders came from on high that, in the “War on Terror,”
they were unnecessary. In its extraordinary arrogance
and contempt for the law, the Bush administration
decided that no screening was required, and that it
was sufficient for the President to declare that, on
capture, all the men were “enemy combatants,” who
could be held indefinitely without any rights
whatsoever.
The purpose — as became apparent at Guantánamo, when
President Bush declared that the Geneva Conventions
did not extend to those held in the “War on Terror” —
was not to keep men off the battlefield for the
duration of hostilities, but to provide the lawless
conditions in which they could be interrogated for
“actionable intelligence.” The result, as has been
chronicled as Guantánamo, at Bagram, at Abu Ghraib and
in the secret prison network, was a torture regime,
purportedly sanctioned by memos written by lawyers in
the Justice Department’s Office of Legal Counsel,
which claimed to redefine torture for the use by the
CIA, or, in the case of the military, through
“enhanced interrogation techniques” approved by
defense secretary Donald Rumsfeld for use at
Guantánamo, which later migrated to Iraq.
In many ways, these techniques were first conceived at
Bagram, where the use of sleep deprivation and brutal
stress positions (the “strappado” technique, or
“Palestinian hanging”) was widespread, and the regime
was so brutal that, in 2002, at least two prisoners
(and possibly as many as five) were murdered in US
custody.
Despite official claims that the conditions at Bagram
have improved in the years since, a BBC report in June
2008, based on interviews with men held in the prison
between 2002 and 2008, found that only two “said they
had been treated well,” while the rest complained that
“they were beaten, deprived of sleep and threatened
with dogs.” In “Undue Process” (PDF), a Human Rights
First report published in November 2009, a distinction
was made between those held in Bagram’s early years,
and those held since 2006, when, as the report noted,
ex-detainees “described significantly better treatment
than those captured earlier, but some still told of
being assaulted at the point of capture and being held
in cold isolation cells for several weeks after their
capture.”
Moreover, in October 2009, during a panel discussion
following the launch of the new Guantánamo
documentary, “Outside the Law: Stories from Guantánamo,”
former prisoner Omar Deghayes explained how his
Pakistani brother-in-law was recently captured on a
visit to Afghanistan and ended up in Bagram. As Omar
described it, his brother-in-law’s wife, who was
allowed to talk to her husband through a videophone
system established by the International Committee of
the Red Cross in early 2008, reported “how horribly
and badly tortured he was, how he had marks on his
eyes and was really badly battered.”
Importing Guantánamo-style reviews
to Bagram
In an attempt to stifle dissent — and, it seems, as
part of a cynical maneuver to encourage the Court of
Appeals to reverse the habeas victories last March of
the three foreign prisoners rendered to Bagram from
other countries — the Obama administration announced
last September that it was introducing a new review
process for the Bagram prisoners. Submitted in court
documents relating to the government’s appeal (PDF),
the proposals allowed, for the first time, prisoners
to call witnesses in their defense.
This was an improvement, because, until 2007, there
was no formal review process at all, and as District
Court Judge John D. Bates noted last March, when he
granted the habeas corpus petitions of the three
foreign prisoners rendered to Bagram, the system that
was then put in place — consisting of Unlawful Enemy
Combatant Review Boards — “falls well short of what
the Supreme Court found inadequate at Guantánamo” (the
Combatant Status Review Tribunals, the one-sided
review process convened in 2004-05, which the Supreme
Court found inadequate in Boumediene v. Bush, the June
2008 ruling granting the prisoners constitutionally
guaranteed habeas corpus rights).
With incredulity, Judge Bates noted that the Bagram
prisoners are not even allocated a personal
representative from the military, as happened during
the CSRTs at Guantánamo, and also noted that, although
they are allowed to represent themselves:
Detainees cannot even speak for themselves; they are
only permitted to submit a written statement. But in
submitting that statement, detainees do not know what
evidence the United States relies upon to justify an
“enemy combatant” designation — so they lack a
meaningful opportunity to rebut that evidence. [The
government’s] far-reaching and ever-changing
definition of enemy combatant, coupled with the
uncertain evidentiary standards, further undercut the
reliability of the UECRB review. And, unlike the CSRT
process [which was followed by annual review boards],
Bagram detainees receive no review beyond the UECRB
itself.
In what appeared to be a direct response to Judge
Bates’ damning criticisms, the Obama administration
announced that, under the new rules, each prisoner
would be assigned a US military official to represent
him (as happened at Guantánamo), and that prisoners
would also have the right to call witnesses and
present evidence when it is “reasonably available” (as
also happened at Guantánamo, even though no foreign
witness was ever summoned to Cuba to testify).
It was also announced that the boards would determine
whether prisoners should be held by the United States,
turned over to Afghan authorities or released, but
although the proposals included a promise that, “For
those ordered held longer, the process will be
repeated at six-month intervals,” the unilateral
flight from the Geneva Conventions was confirmed not
only in the decision to export Guantánamo’s
discredited tribunal system to Bagram, but also in a
section detailing how prisoners would be treated on
capture.
As the submission explained, new prisoners would be
subjected, on capture, not to Article 5 tribunals, but
to cursory reviews by “the capturing unit commander”
and by the commander of Bagram to ascertain that they
“meet the criteria for detention.” Moreover, the DoD
insisted that it was not merely holding prisoners
“consistent with the laws and customs of war,” but was
also holding those who fulfill the criteria laid down
in the Authorization for Use of Military Force (the
founding document of the “War on Terror,” approved by
Congress within days of the 9/11 attacks), which
authorized the President to detain those who “planned,
authorized, committed or aided the terrorist attacks
that occurred on September 11, 2001,” or those who
supported them.
This is depressingly close to the “new paradigm” of
warfare introduced by Bush and Cheney, and it is,
perhaps, no surprise that, as criticisms began to
mount, the administration strategically announced that
it was in the process of transferring control of
Bagram to the Afghan government. It remains to be seen
how swiftly the proposed transfer will occur, but it
is unsurprising that the announcement has been made,
for two reasons: firstly, because it diverts attention
from current US policy, and secondly, because, as with
the Status of Forces Agreement (SOFA) in Iraq, it
allows the US government to abdicate all
responsibility for the mistakes it has made. Signed in
November 2008, the SOFA in Iraq has led to the
transfer of thousands of prisoners in US control to
the custody of the Iraqi government, even though what
awaits them is not a review of whether their detention
by US forces was a mistake, but the chaos of the Iraqi
judicial system.
Secret prisons
This is disturbingly cynical, of course, but what
makes it even worse is a reasonable assumption that
the transfer of Bagram to Afghan control will not
include the transfer of any prisoners regarded as
significant. For these men, the likelihood is that the
US government will retain control of a secretive
“black jail” within Bagram airbase, exposed by the
Washington Post and the New York Times in November
2009, and will continue to seize men in nighttime
raids, sending them either to this facility, or to one
of nine “Field Detention Sites” on military bases,
“often on the slightest suspicion and without the
knowledge of their families,” as Anand Gopal reported
in a ground-breaking exposé last week, which revealed
the extensive torture and abuse of those held.
Gopal’s account is not the only insight into the dark
realities of current US detention policies in
Afghanistan, beyond Bagram, beyond the Geneva
Conventions, and, it seems, beyond the law. Late last
year, a reliable Afghan source informed a lawyer
friend of mine that there were, at the time, about two
dozen secret facilities in Afghanistan, including
three or four in Herat, four or five in northern
Afghanistan, and three or four in Kabul. According to
this source, the majority were US facilities, although
a few were run by the National Directorate of Security
(NDS), the Afghan government’s domestic intelligence
agency, and a few others were run by the Afghan Army.
The source added, “They are all worse than Bagram. All
contain a mix of combatants, criminals, and totally
innocent persons. The main difference is that those at
the US prisons are fed better. No one has any rights.”
In addition, just last week, in response to my recent
articles, a military insider let me know that, “Not
only were there facilities in Bagram, but in Kandahar
and Salerno as well. Saw them first-hand between 2006
and 2009, but was told not to speak of the jails.”
These, it was noted, were “unsanctioned facilities,”
which were off-limits to the International Committee
of the Red Cross.
As eight years of Bush, Cheney and Rumsfeld should
have taught us, once you abandon the Geneva
Conventions, all that lies beyond is secrecy and
torture. The Obama administration has certainly
tinkered with the Bush administration’s legacy, but as
the stories of Bagram, the “dark jail” and the network
of secret facilities demonstrates, tinkering threatens
only to drive the dark truths further underground, and
what is needed is the courage to thoroughly repudiate
the brutal practices at the heart of the “War on
Terror.”
A slightly edited version of this article was
published exclusively on Truthout.
Andy Worthington is the author of The Guantánamo
Files: The Stories of the 774 Detainees in America’s
Illegal Prison (published by Pluto Press, distributed
by Macmillan in the US, and available from Amazon —
click on the following for the US and the UK). To
receive new articles in your inbox, please subscribe
to my RSS feed (and I can also be found on Facebook
and Twitter). Also see my definitive Guantánamo
prisoner list, updated in January 2010, details about
the new documentary film, “Outside the Law: Stories
from Guantánamo” (co-directed by Polly Nash and Andy
Worthington, and launched in October 2009), and, if
you appreciate my work, feel free to make a donation.
andy@andyworthington.co.uk
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