NEW YORK - Human-rights activists and legal experts reacted swiftly on Monday
to disclosures that the United States government is planning to introduce new
measures it claims would give inmates at Afghanistan's Bagram prison more
opportunities to challenge their detention.
Their views range from cautious optimism to total condemnation.
There are some 600-plus prisoners being held at the US military facility near
the capital Kabul. Some have been held for years without lawyers or any charge
filed against them. There have been many allegations involving the torture of
prisoners.
Critics also charge that US President Barack Obama has been turning Bagram into
a new Guantanamo, since terror suspects are
no longer being sent to the prison in Cuba because of plans to close it by
January, 2010.
The new guidelines expected to be issued by the Defense Department would assign
a United States non-lawyer military official to each detainee. They would be
tasked to gather exculpatory witnesses and evidence to present before review
boards to be appointed by the US military.
Currently, these detainees - some of whom have been imprisoned for more than
six years - do not have access to lawyers and have no right to hear the
allegations against them. Their status as "enemy combatants" is theoretically
reviewed periodically by military panels, but critics say these reviews are
incomplete, prejudiced and ineffective.
Tina Monshipour Foster, executive director of the International Justice Network
(IJN), a legal advocacy group that represents four Bagram detainees in a
pending federal court case, called the proposed changes "a step in the wrong
direction".
She told Inter Press Service, "No set of procedures will have legitimacy until
there is transparency and accountability for any violations of the military's
own rules. Preventing the accused from having contact with his lawyer is
antithetical to any legitimate system of justice."
She said the first step should be to allow the detainees access to actual
lawyers. Anything less, she added, "only invites rule-breaking, and casts doubt
over the legitimacy of any proceedings that may be going on behind closed
doors".
"The 'new' procedures adopted by the Obama administration are not new at all;
they appear to be exactly the same as the procedures created by the [George W]
Bush administration in response to prior court challenges by Guantanamo
detainees," she said.
A more hopeful note was struck by Sahr MuhammedAlly, senior associate for law
and security at Human Rights First, who has interviewed several former Bagram
detainees.
She told IPS, "These new procedures appear to be an improvement from the
current review regime which a US district court found far worse than the
discredited review procedures in Guantanamo."
But she was quick to add, "Given the lessons learned from Guantanamo, it is
important that detention review procedures in Bagram must provide detainees a
legal representative to ensure a meaningful mechanism for detainees to
challenge their detention which the new procedures don't provide."
She said, "It is equally important to improve the reliability of information
leading to the capture of an individual in order to mitigate the risks of
erroneous detentions, which the new procedures do not address."
MuhammedAlly called for independent, public monitoring of the implementation of
the new procedures in order to assess their effectiveness.
David Frakt, a law professor at Western State University and former Guantanamo
defense counsel, was skeptical that the administration's new rules would work.
He told IPS, "The administration's proposal to provide greater rights to
detainees at Bagram reminds me of the Bush administration's woefully inadequate
Combatant Status Review Tribunal [CSRT] process for detainees at Guantanamo,
which has been suspended by the Obama administration after serious criticism by
the [US] Supreme Court."
He said, "The most obvious flaw with the proposed process is the failure to
provide counsel to the detainees. Instead, the administration proposes to
assign officers with no special expertise to serve as the detainees'
representative. This model was a complete failure for the CSRTs and should not
be repeated."
He added, "It is simply unrealistic to expect non-lawyers to zealously advocate
on behalf of the detainees, or to be effective in gathering witnesses and
evidence to challenge the lawfulness of the detention."
In April, the American Civil Liberties Union filed a Freedom of Information Act
request asking the Obama administration to make public records pertaining to
the detention and treatment of prisoners held at Bagram. The government has not
yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said
that while she found the proposed new guidelines "encouraging", she remains
concerned about the level of secrecy that surrounds Bagram.
"The public remains uninformed of basic facts such as who is imprisoned there,
how long they have been held, where they were captured and on what grounds they
are being subjected to indefinite detention," she noted.
"The government should make public documents that could shed light on this
crucial information about the detention and treatment of prisoners at Bagram,"
she said.
Chip Pitts, a lecturer at the Stanford University law school and president of
the Bill of Rights Defense Committee, also expressed skepticism.
He told IPS, "Whatever the new rules say, it's crucial that they distinguish
between classical and legitimate conflicts where the rules of war apply, and
the continuing attempt to encompass all counterterrorism within the
illegitimate, overbroad, so-called 'war on terror' framework that wrongly
disregards fundamental rights of civilians who are not active on actual
battlefields."
While it is unclear how soon the Pentagon's new guidelines will be implemented
- largely because of lack of personnel - they appear to have been announced
with some sense of urgency. The probable reason is that the Obama
administration is preparing to appeal a federal judge's ruling in April that
some Bagram prisoners brought in from outside Afghanistan have a right to
challenge their imprisonment.
In that decision, a federal district judge, John D Bates, ruled that three
detainees at Bagram had the same legal rights that the Supreme Court last year
granted to prisoners held at Guantanamo Bay because they were captured outside
Afghanistan and taken to Bagram, where they have been held for more than six
years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence
against them and order their release, under the constitutional right of habeas
corpus.
Chip Pitts supports their position. He told IPS, "Judge Bates' decision
laudably made that distinction and, rather than fight it, the Obama
administration should take the opportunity to restore sensible and moral rules
in keeping with nearly a millennium of legal evolution."
"These would recognize that civilians have a right to habeas corpus,
that combatants on true battlefield situations have a right to Article V
hearings under the Geneva Conventions, and that places like Bagram shouldn't be
manipulated to simply form new Guantanamos or law-free zones," Pitts said.
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