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Joanne Mariner

Not Just Guantanamo


Wednesday, Jan. 14, 2009

The problem of Guantanamo is being solved. According to press accounts, President-elect Barack Obama will issue an executive order on his first full day in office mandating the detention center's closure.

Shutting down this most notorious of prisons will be a crucial symbolic step, signaling a rejection of the Bush administration's lawless approach to fighting terrorism. The prison's seven-year existence has been a long affront to the country's constitutional values.

Yet it would be wrong to consider Guantanamo alone. The use of long-term detention without charge—the reason for Guantanamo's notoriety—is not limited to Guantanamo. Hundreds of prisoners are currently being held at the U.S. air base in Bagram, Afghanistan, and some of these men have been in custody for years.

Last week, a federal district court in Washington held a hearing in a group of consolidated cases brought by several detainees at Bagram. What these men are seeking is the right to challenge the grounds for their detention via habeas corpus—the same right that the Supreme Court has recognized for detainees at Guantanamo.

The Man Who Disappeared

On a visit to Kabul last February, I spoke to an old man whose brother, Haji Wazir, is one of the petitioners in this case. A wealthy 61-year-old Afghan businessman, Haji Wazir disappeared in Dubai in September 2002.

"One day he went to the mosque and didn't come home," Wazir's brother told me. "There were no witnesses," he said, "we didn't know who had kidnapped him. He just disappeared on the way home."

Evidence suggests that it was the CIA that took custody of Haji Wazir and brought him to Afghanistan. In other such cases, prisoners were held for a time in secret CIA custody, then handed over to the military for detention at Bagram. Many of these men were later transferred to Guantanamo. They all could (and should) have been brought to the U.S. mainland for trial.

It was not until several months after Haji Wazir's disappearance that his family learned that he was in U.S. military custody at the Bagram air base. They were not informed why he was being held, or when he would be released; nor were they allowed to visit him.

In September 2006, after Wazir had been in U.S. custody for approximately four years, one of his cousins filed a habeas petition in U.S. federal court. The petition stated that Haji Wazir was being held at Bagram virtually incommunicado and without legal process.

The district court never addressed these claims, dismissing the petition in January 2007. It held that the Military Commissions Act (MCA), a recently passed statute, barred the federal courts from hearing habeas cases on behalf of aliens in U.S. military custody abroad.

The MCA's habeas-stripping provisions were declared unconstitutional by the U.S. Supreme Court last summer. Detainees held by the military at Guantanamo are now asserting their claims of arbitrary detention in the U.S. courts.

A Detention Center That Is Closed to Scrutiny

Yet the outlook for Haji Wazir and others held at Bagram is more worrying. There is language in the Supreme Court's recent ruling that suggests that it will apply only to Guantanamo, and that prisoners held in Afghanistan and Iraq will remain beyond the courts' reach. "[I]f the detention facility were located in an active theater of war," the Court explained in its opinion, the arguments against recognizing court jurisdiction "would have more weight."

In recent months, the U.S. government has asked the courts to dismiss the petitions brought by detainees at Bagram. The government argues that prisoners at Bagram and Guantanamo are differently situated, and that the Military Commissions Act bars the courts from hearing cases brought by prisoners in Afghanistan.

In its legal arguments, the government relies heavily on the claim that, unlike Guantanamo, Bagram is located in a traditional theater of war. While this is true, it ignores the fact that some detainees at Bagram are not even arguably traditional combatants. They were not captured on the battlefield in Afghanistan; rather, they were flown to Afghanistan from far-away places like Somalia, Thailand, and Dubai. These detainees are identically situated to the detainees at Guantanamo, but for the fact that they are being held at Bagram.

Under the current legal rules, the U.S. government now has clear incentives to hold such prisoners at Bagram. Bagram is much more closed to public scrutiny than Guantanamo, and much less present in the public mind. While the government released a full list of detainees at Guantanamo in early 2006, we don't know the names of everyone in detention at Bagram.

Legal proceedings at Bagram are negligible. Unlike at Guantanamo, prisoners at Bagram are not allowed to see lawyers. The administrative reviews of detainees' cases amount to little more than paper-shuffling. The detainees have no right to a personal advocate, no opportunity to review the evidence against them, and very little means of contesting the grounds for their detention. Indeed, many of the former detainees I've interviewed say they have no idea why they were detained, or why they were later released.

Expanding rather than Closing

The detainee population at Guantanamo has been shrinking, and the facility will almost certainly close during the next administration. Bagram, in contrast, continues to grow. It now holds nearly 700 prisoners—more than twice as many as Guantanamo—and it is slated to be replaced by a larger detention complex that will accommodate up to 1,100.

Given the scant information about detainees held at Bagram, it is not known how many of them, like Haji Wazir, have now been held there for years with charge. It should be obvious, however, that these men deserve a fair hearing.

Joanne Mariner is an attorney with Human Rights Watch. Her previous columns on the detainee cases and the "war on terror" are available in FindLaw's archive.

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