Bush's living legacy at Bagram prison
By Karen J Greenberg
Just when you think you've woken up from a bad dream …
When it comes to offshore injustice and secret prisons, especially our
notorious but little known prison at Bagram Air Base in Afghanistan, let's hope
the Barack Obama years mean never having to complete that sentence.
In the George W Bush era, those of us who followed his administration's
torture, detention and interrogation policies often felt like we were unwilling
participants in a perverse game of hide-and-seek. Whenever one of us stumbled
upon a startling new document, a horrific new practice, a dismal new prison
environment or yet another individual implicated in torture policy, the feeling
of revelation would soon be superseded by a sneaking
suspicion that we were once again looking in the wrong direction, that the Bush
administration was playing a Machiavellian game of distraction with us.
Okay, call it paranoia - a state of mind well suited to the Age of Cheney - but
when Abu Ghraib finally came to light, it turned out that our real focus should
have been on the administration's program of "extraordinary rendition" and the
CIA secret flights to the foreign countries that were serving as proxy
torturers for the United States. And when one case of torture by proxy, that of
Maher Arar, achieved some prominence, we began looking at proxy torturers for
the United States, when we should have been looking at legalized policies of
torture by the US.
Several years ago, British human rights lawyer Clive Stafford Smith placed that
jewel in the Bush administration's offshore crown of injustice, Guantanamo, in
the category of distraction as well - distraction, that is, from the far
grimmer and more important American detention facility at Bagram Air Base in
Afghanistan.
Distracted or not, for at least five years some of us have been seeking the
hidden outlines of the torture story. Now, Obama has given it a visible shape
by providing a potential endpoint if not to our investigations, then to our
focus. Much of what we focused on in these last years he's declared to be
history. Guantanamo will be closed within a year and the American role in the
war in Iraq will end as well; torture will once again be banned; a new task
force, already assembled, will review all the Bush administration's detention
policies; and people like me will, assumedly, finally be out of work and able
to write those novels we used to dream about. For us, no more unwelcome
obsessions with detention, abuse and torture.
Bad times at Bagram
Still, ever since the Oval Office changed hands in January, I've had a nagging
feeling that something was amiss. And when I finally focused on it, a single
question kept coming to mind: Whatever happened to the US prison at Bagram?
I knew that it had been opened in 2002 on an abandoned Soviet air base the US
had occupied and was being massively upgraded after the invasion of
Afghanistan, and that its purpose was to hold prisoners in the global “war on
terror” at a place as far removed as possible from the prying eyes of American
courts or international oversight bodies of any sort. In fact, many of those
eventually transported to Guantanamo were originally held under even worse
conditions at Bagram and, from early on, they had reported beatings, abuse and
a startlingly wide range of other forms of mistreatment there.
But what else did I know? Thanks to New York Times reporters Carlotta Gall,
David Rohde, Tim Golde, and Eric Schmitt, as well as to Alex Gibney's
documentary film Taxi to the Dark Side, I knew that two Afghans, Dilawar
and Jullah Habibullah, had been beaten to death by US Army interrogators at the
prison in December 2002. I also knew that the use of such beatings, as well as
various other forms of torture, had been normalized at Bagram at the very
beginning of the Bush administration's long march of pain that led to
Guantanamo and then on to Abu Ghraib and other prisons in Iraq as well as
foreign torture chambers.
From the 2004 Church Report (written by Naval Inspector General Admiral T
Church), I knew that military interrogators and guards at Bagram had been given
next to no relevant training for the mission of detention and interrogation. I
knew as well that a secret CIA prison was allegedly located apart from the
regular detention cells at Bagram. I knew that military officials had declared
that the interrogation techniques at Bagram seemed to work better than those
being used at Guantanamo in the same period. And that after the Supreme Court
issued a decision in 2004 to allow prisoners at Guantanamo to challenge their
detentions, the prison population at Bagram began to grow.
What we don't know about a prison nightmare
But that was the past. What did I know about the situation in the first weeks
of the Obama era?
The unnerving answer was, precious little. So, as I had done with Guantanamo
and Abu Ghraib, I began by asking the simple questions that had once been so
difficult to answer about so many offshore detention facilities of the Bush
era: Who was being held at Bagram? How many prisoners were there and from which
countries? What status did they have? Were they currently classified as "enemy
prisoners of war" or - in the phrase the Bush administration had so favored in
an attempt to confound US courts - "unlawful enemy combatants"? How were they
being treated? What reports on prison conditions had either the US government
or interested non-governmental organizations released?
Setting aside the frustrations of the past seven years, I naively tried a basic
Google search to see just what was instantly available, only to discover that
the answer was essentially nothing.
It turns out that we can say very little with precision or confidence about
that prison facility or even the exact number of prisoners there. News sources
had often reported approximately 500-600 prisoners in custody at Bagram, but an
accurate count is not available. A federal judge recently asked for "the number
of detainees held at Bagram Air Base; the number of Bagram detainees who were
captured outside Afghanistan; and the number of Bagram detainees who are Afghan
citizens," but the information the Obama administration offered the court in
response remains classified and redacted from the public record.
We don't even know the exact size of the prison or much about the conditions
there, although they have been described as more spartan and far cruder than
Guantanamo's in its worst days. The International Committee of the Red Cross
has visited the prison, but it remains unclear whether they were able to
inspect all of it. Though their confidential report from 2008 supposedly
highlighted overcrowding, the use of extreme isolation as a punishment
technique and various violations of the Geneva Convention.
We do know that a planned expansion of the facility is underway and will - if
President Obama chooses to continue the Bush project there - enable up to 1,100
prisoners to be held (a step which will grimly complement the "surge" in
American troops now underway in Afghanistan). There are no figures available on
how long most of Bagram's prisoners have been held - although some, it seems,
have been imprisoned without charges or recourse for years -- or how legal
processes are being applied there, if at all. Last spring, the International
Herald Tribune reported that Afghans from Bagram were sometimes tried in Afghan
criminal proceedings where little evidence and no witnesses were presented.
To students of Guantanamo, this sounds uncomfortably familiar. And there's more
that's eerily reminiscent of Gitmo's bleak history. According to the New York
Times, even four years after Bagram was established, wire cages were being used
as cells, with buckets for toilets - as was also true of the original
conditions at Camp X-Ray, the first holding facility at Guantanamo. Similarly,
as with Guantanamo, the US has no status of forces agreement with Afghanistan,
and so the base and prison can be closed or turned over to the Afghans only on
US say-so. Above all, while some Bagram detainees do have lawyers, most do not.
The prison where it all began
While I was wondering about the state of our black hole of incarceration in
Afghanistan, the Obama administration issued its first terse statement on the
subject. When it came to granting Bagram detainees habeas rights (that is, the
right to challenge their detention in US courts), the administration simply
stated that it "adheres to [the Justice Department's] previously articulated
position": habeas would not be granted.
After all, reasoned the new government lawyers (like their predecessors),
Bagram is in an indisputable war zone and different legal considerations should
apply. But here's the catch neither the Bush administration, nor evidently the
Obama administration, has cared to consider: It's quite possible that these
four individuals, like others at Bagram, were not captured on an Afghan
battlefield (as the prisoners claim), but elsewhere on what Bush officials
liked to think of as the "global battlefield" of the “war on terror”, and then
conveniently transported to Bagram to be held indefinitely.
The US government refuses to make public any documentation that would support
its case and the new court documents, submitted by the lawyers of the Obama
Justice Department, are frustratingly blacked out just as those of the Bush era
Justice Department always were. At least for the moment then, when it comes to
Bagram, tactics and arguments remain unchanged from the Bush years. No wonder
journalists and human rights lawyers have lately taken to referring to that
prison as the "other Guantanamo”, or "Guantanamo II”, or more combatively,
"Obama's Guantanamo”.
Sadly, however, even this is inaccurate. From the get-go, Guantanamo was
actually the "other Bagram." The obvious question now is: How will the Obama
administration deal with this facility and, in particular, with matters of
detention, "enforced disappearance," and coerced testimony? Will these be
allowed to continue into the future, Bush-style, or will the Obama
administration extend its first executive orders on Guantanamo and torture
practices to deal in new ways with the prison where it all began?
Facing crimes of the Bush era
Obama has given a newly convened task force six months - a long time when
people are being held in harsh conditions without charges or recourse - to
consider the matter of Bush administration detention practices and formulate
new policies (or, of course, retain old ones). Here are some guidelines that
may prove helpful when it comes to Bagram:
1. On secrecy: The appeal to secrecy and national security has
been an all-purpose refuge of official rogues for the last seven years.
Reconsider it. A sunshine policy should apply, above all else, to detention
practices. Ideally, the US should simply release full information on Bagram and
the prisoners being held there. When, in specific cases, information is not
divulged, the reasons for not doing so should be fully revealed. Otherwise, the
suspicion will always arise that such withheld information might be part of a
cover-up of government incompetence or illegality. That must be ruled out. It
is imperative that President Obama's administration not double down on the Bush
administration's secrecy policy from a desire not to look back and so to avoid
future prosecutions of Bush officials.
2. On classification of prisoners: The Obama administration
should seriously consider declaring the prisoners at Bagram to be "prisoners of
war," and so subject to the Geneva Conventions. Currently, they are classified
as enemy combatants, as are the prisoners at Guantanamo, and so, in the
perverse universe of the Bush administration, free from any of the constraints
of international law. The idea that the Conventions are too "rigid" for our
moment and need to be put aside for this new extra-legal category has always
been false and pernicious, primarily paving the way for the use of "enhanced
interrogation techniques."
3. On "ghost prisoners": The Obama administration should reject
out of hand the idea that prisoner invisibility is acceptable anywhere,
including at Bagram. The International Committee of the Red Cross must be
granted access to all of the prisons or prison areas at Bagram, while
conditions of detention there should be brought into accordance with humane
treatment and standards. No "ghost prisoners" should be allowed to exist there.
4. On guilt and innocence: The belief that there is a categorical
difference between guilt and innocence, which went by the wayside in the last
seven years, must be restored. All too often, the military brass still assumes
that if you were rounded up by US forces, you are, by definition, guilty. It's
time to change this attitude and return to legal standards of guilt.
In the Bush years, we taught the world a series of harmful lessons: Americans
can be as cruel as others. Americans can turn their backs on law and
reciprocity among nations as efficiently as any tribally organized
dictatorship. Americans, relying on fear and the human impulse toward
vengeance, can dehumanize other human beings with fervor equal to that of
others on this planet.
It's time for a change. It's time, in fact, to face the first and last legacy
of the Bush detention era, our prison at Bagram Air Base, and deal with it.
Call me a perpetual optimist, but Obama has the right team in place to address
this nightmarish legacy in a wise and timely way. We should expect no less from
them than a full restoration of a government responsible to the law, and
confident of its power to deter enemies legally - be it on the battlefield or
in the courtroom. So, too, we must expect them to possess the courage to
confront truths, even if those truths mean heading down the path towards the
prosecution of crimes of the Bush years.
Karen J Greenberg is the executive director of the Center on Law and
Security at the New York University School of Law. Her latest book,
The Least Worst Place, Guantanamo's First 100 Days(Oxford University
Press), has just been published. She is also the co-editor of The
Torture Papers: The Road to Abu Ghraib, among other works.
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