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Obama's Guantanamo?

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    Obama s Guantanamo? Bush s Living Legacy at Bagram Prison By Karen J. Greenberg When it comes to offshore injustice and secret prisons, especially our
    Message 1 of 1 , Mar 7, 2009
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      Obama's Guantanamo?


      Bush's Living Legacy at Bagram Prison
      By Karen J. Greenberg


      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 Obama years mean never having to complete that sentence.

      In the 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      torture policy, the feeling of revelation would soon be superseded by a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
      U.S.

      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, President 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 U.S.
      prison at Bagram?

      I knew that it had been opened in 2002 on an abandoned Soviet air base
      the U.S. 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 Golden, 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 U.S.
      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 U.S. courts - "unlawful enemy combatants"? How were they being
      treated? What reports on prison conditions had either the U.S.
      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. A confidential Red
      Cross 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
      U.S.. 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 U.S.
      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 U.S.
      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 U.S. 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

      President 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 U.S. 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 U.S. 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 a 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 Bush detention era, our prison at Bagram Air Base, and deal
      with it.

      Call me a perpetual optimist, but President 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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