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An Afghan detainee’s cell, March 2011, at the Bagram Air Base detention facility. (AP Photo)

Bagram prison, bigger than Guantanamo, its prisoners in limbo, cries out for some news coverage

COMMENTARY | May 31, 2011

Some 1,700 detainees are being held with no charges, no trial, no way to prove their innocence despite a Marine Corps general's 2009 report saying many should be released. In addition, there has been almost no in-depth news coverage of practices that, if widely known, would no doubt add to the call for removal of U.S. troops from Afghanistan and criticism of the government’s conduct of the war.

One in a Nieman Watchdog series, ‘Reporting the Endgame

By John Hanrahan

Under a U.S. military system straight out of  Kafka’s “The Trial” and Heller’s “Catch-22”, some 1,700 detainees at the Bagram U.S. Air Base in Afghanistan are being held without charges or a trial, primarily on the basis of secret evidence that they never get to see or challenge.

A still-classified 2009 Marine Corps general's report concluded that many, probably a majority, were wrongly held then. But it was virtually impossible then and now for innocent detainees to prove they are not allied with insurgents.

The system of dealing with Bagram prisoners through detainee review boards (DRB), although improved upon since President Obama took office, violates universal standards on detention in that it “does not provide detainees the minimum level of due process required by international law,” according to a human rights organization’s recent report. Thus far, the report, issued May 10 by New York- and Washington, D.C.-based non-profit organization Human Rights First (HRF), has been ignored by almost all the mainstream print and broadcast news media.

As Human Rights First states, the ever-growing number of Bagram detainees – most  of whom are Afghans – have far fewer rights than their counterparts at the much more controversial Guantanamo Bay prison. Thanks to a 2008 Supreme Court decision, Guantanamo detainees “have the right to challenge their detention in a U.S. court and to representation by a lawyer,” something Bagram prisoners are denied, the report notes.

The system has resulted in detainees being incarcerated at Bagram for eight years or more, “based largely on evidence they have never seen and with no meaningful opportunity to defend themselves,” the report says. Additionally “a significant number” of the approximately 41 non-Afghan detainees “have been recommended for release by a Detainee Review Board but remain in detention at...[Bagram]..without explanation.”

In an interview with Nieman Watchdog, the HRF report’s author, Daphne Eviatar, put that figure of 1,700 detainees into context, noting that it is “almost triple the number of detainees who were at Bagram when President Obama came into office two years ago, and is 10 times greater than the number of prisoners currently being held at Guantanamo.” In addition, it is more than twice the total number of detainees – 779 – who were ever held at Guantanamo. More than 1,300 individuals were arrested and incarcerated in Bagram in 2010 alone, compared to some 500 in 2009. Eviatar is senior associate in Human Rights First’s law and security program. (Click here for a video on Bagram by Eviatar.)

Besides violating international law, the current system “flies in the face of the well-founded wisdom of our top military leaders in the region who have warned repeatedly of the dangers of denying Afghan detainees due process,” Eviatar said in releasing the report. “Beyond the imprisonment of many likely innocent people, the lack of due process erodes support for U.S. forces in Afghanistan and ultimately undermines U.S. goals there.”

There have been past indications that a majority of the Bagram detainees are being wrongfully held. In August 2009, various news outlets reported that U.S. Marine Corps Reserve Major General Douglas M. Stone had been assigned to investigate detention practices in Afghanistan and had issued a still-unreleased 700-page classified report. As National Public Radio reported at the time, Stone told senior military officials that as many as 400 of the 600 detainees then held at Bagram could be released. “Many of these men were swept up in raids – have little connection to the insurgency,” NPR reported.

While Guantanamo’s abusive operations, including allegations of torture, provoked much controversy, international condemnation and hundreds of news stories, the Bagram facility has received less scrutiny in the press, despite past allegations of torture, homicide and other abuses there. This makes the Human Rights First report a significant, newsworthy starting point for news organizations to more fully inform the public about the U.S. military’s treatment of detainees. Such reporting would be especially important at a time when public and congressional calls to end the war in Afghanistan are intensifying. Following up on General Stone’s 2009 statement, one question the mainstream press could pursue, in addition to the due process issue, is: How many of the current Bagram detainees have no connection to the insurgency?

The Human Rights First report is based on more than eight months of research, including observations the U.S. military allowed it to make of seven review board hearings at Bagram (also referred to as Parwan, or DFIP) in September 2010 and February 2011, and on interviews with 18 former detainees, 12 of whom had had Detainee Review Board hearings and all of whom had been released from Bagram within the previous year. The report summarizes several of these interviews, which suggest the arbitrariness of the basis for their arrest and detention in the first place. Former detainees repeatedly emphasized “that they believed they were wrongly imprisoned based on false information provided to U.S. forces by personal, family or tribal enemies.”

Additionally, Human Rights First conducted numerous interviews in Afghanistan with prison officials, international human rights and assistance organizations and defenses attorneys, as well as drawing on interviews with, and documentation provided by, U.S. military and State Department personnel. The report makes the following points:

  • Within 60 days of a detainee’s transfer to the Bagram detention facilities, Pentagon rules require that he have a hearing before a Detainee Review Board (DRB), consisting of three field-grade military officers, to determine whether he has committed acts showing him to be an “enemy belligerent,” and “whether he poses a future danger to U.S. forces." Under rules of the DRB proceedings, detainees do not have the right to legal representation or to see any classified evidence being used against them. The DRB has authority to recommend the detainee’s release; recommend the detainee be held for another six months, at which time he’ll receive another hearing; or recommend he be “transferred to Afghan authorities for criminal prosecution, or for participation in a reconciliation program.” (The Los Angeles Times has reported that about 63 percent of the detainees remain in U.S. custody after the hearings, while 30 percent get referred to the Afghan court system, and only 7 percent are released initially.)
  • Although forensic evidence is not classified and can be presented in open sessions, all other evidence against the detainee –  intelligence reports, accusations by informants, hearsay, etc. –  is classified and is presented in a secret hearing that the detainee is not allowed to attend. Nor is he allowed to find out what was said or presented as classified evidence in that secret hearing. As the report states: “These informants are never questioned or cross-examined in court, so their veracity is never tested. It is also impossible to know if the classified evidence includes statements elicited from the detainee or from witnesses by coercion, torture, or cruel, inhuman or degrading treatment, despite the military’s rule excluding tortured evidence.”
  • In changes to procedures instituted since President Obama came into office, Bagram detainees are now allowed to appear at the DRB public proceedings and be represented by “personal representatives.” These representatives are “uniformed U.S. soldiers with no legal background or training in the culture or language of the detainees they represent” and their lone qualification is that they have completed a 35-hour training course, the report says. In the seven DRB hearings that Human Rights First staffers were allowed to witness, the report says, none of the personal representatives “seemed to have independently investigated the case, collected evidence on the detainee’s behalf, demanded that the government produce evidence, or asked even the most obvious questions challenging the evidence that the government presented.”
  • Additionally, in none of the seven hearings that HRF witnessed did the personal representative “introduce any evidence or call a single witness to the events being discussed in the case in an effort to challenge the government’s factual assertions, even in cases where it was obviously called for.” Whatever the reason for the personal representatives’ ineffectual performances, the result was that “each detainee was left to fend for himself,” which amounted generally to making a statement “denying the charges and insisting that he does not support the Taliban” or that he would not speak ill of U.S. and NATO forces to his neighbors. As of February, there were only 15 personal representatives – meaning each one had to serve more than 100 detainees.
  • Although a detainee’s personal representative can attend the secret portion of the hearing while the detainee cannot, the representative is not allowed to divulge to the detainee any classified information –  including informants’ statements –  that he learns in such sessions. This, of course, puts the detainee in a position in which it is “nearly impossible...to challenge that evidence or refute it with other evidence.”
  • When first brought into custody, detainees go to “screening facilities” at Bagram or elsewhere in Afghanistan where they are supposed to be kept for no more than 14 days before being sent on to the Bagram detention facility. Although information about these facilities is classified, HRF said that based on journalists’ reports, findings by the Open Society Institute and HRF’s own interviews with former detainees, “it is clear that the treatment of prisoners and detention conditions” at these screening facilities “is significantly worse” than at Bagram. Associated Press intelligence writer Kimberly Dozier in April broke a story describing these theretofore secret 20 “temporary” jails in Afghanistan, including one at Bagram, in which detainees were held for questioning in excess of 14 days – some up to nine weeks  – before being released or transferred into the main Bagram facility. Dozier reported that these detainees underwent “harsh treatment” –  including forced nudity –  “that some human rights groups claim borders on inhumane.”
  • Eviatar said HRF heard no evidence of current torture such as waterboarding at the Bagram prison. However, some detainees who had been released said they were held in isolation for two weeks or more, some kept in cells that were extremely cold, were denied natural light and had difficulty sleeping because an electric light was on 24-hours-a-day in each cell. Some were also interrogated in the middle of the night, suggesting that they may have been subjected to intentional sleep disruption and deprivation. 
  • Former detainees interviewed by Human Rights First said they were “not compensated for what they viewed as a wrongful imprisonment,” nor were they reimbursed for any damage to their homes, or damage or theft of other property at the time of arrest by U.S. and/or Afghan military personnel.
  • While noting the improvements in Bagram’s procedures under President Obama compared to “the completely secret process used during the Bush administration,” the report cites applicable international law that it contends the U.S. government continues to violate at Bagram –  including the International Covenant on Civil and Political Rights, which the U.S. Senate ratified in 1992. Among other things, the report says, this covenant “provides that detention not be arbitrary...” and that the detainee have in a timely manner ”the right to challenge the detention before an impartial judicial body authorized to order a detainee’s release.”

Despite the powerful findings of the Human Rights First report, Nieman Watchdog has found only a few articles that mentioned it, and only one of those – in the Los Angeles Times (whose story was also used by the Chicago Tribune) – explored the lack of due process issue that was at the heart of the report.  A New York Times article also mentioned the report, but only as part of a larger story that focused more on the intelligence problem for NATO in determining who is and is not a reliable informant or connected to the Taliban. We found no indication of any U.S. television or radio coverage of the report, and Eviatar told us she was unaware of any.

The Los Angeles Times reporter, Molly Hennessy-Fiske, queried Air Force Colonel Peter R. Masciola, whom she described as a military lawyer who supervised defense attorneys at Guantanamo and has been overseeing the Bagram review board hearings. Masciola said at one point: “When you detain someone on the battlefield, what sort of due process do you give them?” And: “What you’re trying to determine is if you release this person, will they return to the fight? Our mandate is not to be an adversary, it’s to be fair.”

Although specific details are classified about where the 1,700 prisoners were picked up, Eviatar said almost all of the former detainees HRF interviewed had been seized by U.S. and Afghan forces in night raids at their homes or compounds  – and not in any armed combat situation. The HRF report also told of one former detainee being imprisoned when he went to the U.S. military to inquire about his son, who himself had been arrested. It also discussed one current detainee who had been picked up while leaving a mosque.

As the HRF report notes, the U.S. government and particularly the Pentagon’s Office of Detainee Affairs “have repeatedly stated that they do not believe that detainees in U.S. custody in Afghanistan have a right to legal counsel” and have insisted that the use of a personal representative “is an adequate substitute for a legal representative.”

Hennessy-Fiske quoted Masciola as saying that it made sense to keep classified information from detainees. “This is still an armed conflict,” he reportedly said. “That information could be used by our enemies against us.” Eviatar responded: “We deal with classified evidence in the U.S. all the time and there’s ways of dealing with that, to declassify portions and make it usable.”

On this same point, the HRF report states that the Afghanistan war is not unique in some way that would permit the United States to deprive detainees of rights guaranteed under international law: “Other democracies that face grave security threats from terrorism, such as Israel, provide independent judicial review, a right to counsel, and appeals to suspected terrorists, and view these as required by international humanitarian law. We see no reason why the United States, which prides itself on respect for the rule of law and human rights, cannot meet the same standards.”


Bagram prisoners are POW's
Posted by Frank
06/02/2011, 11:27 AM

This is a war and they are POW's pure and simple.

Why do people like you always look for the evil in the US? Why in your eyes are we always wrong and our enemies are right?

I imagine you have an orgasm every time you find some evil thing in this country to write about.

Re: Bagram prisoners are POW's
Posted by Char
06/02/2011, 04:16 PM

It would be a step forward if these folks were considered POWs. If they were international (and American) law would forbid some of the things that have apparently been going on in Bagram.

"Why in your eyes are we always wrong and our enemies are right?"

Pointing out bad things caused or done by American foreign policy is not an endorsement of whoever America is at war with; it simply means the US can and should do better. If I hate on Microsoft that is not an endorsement of Apple (especially as I prefer Linux).

Posted by Diane
06/04/2011, 10:13 PM

The system sounds close to what Bush originally set up at Guantanamo, a "lawless enclave" where prisoners would have no rights under either the laws of war or criminal law, so that they could be held indefinitely without charges or trials, with no meaningful opportunity to challenge their detention, and subjected to an abusive interrogation program, involving a redefinition of torture. Incidents of torture were blamed on a "few bad apples" but the Senate Armed Services Committee contradicted that and placed responsibility at the highest levels. Still, the only people ever held accountable were the supposed "few bad apples", low level soldiers who were mostly scapegoats. Obama has not held anyone accountable.

The Supreme Court forced Bush to begin changing the system at Guantanamo because it gave the prisoners minimum rights under Geneva Common Article 3, humane treatment and a fair trial IF accused of a crime. It forced some improvements to the legal system, but the basic approach remained the same. The Court gave Gtmo detainees habeas rights so they could legally challenge indefinite detention. However, some prisoners still remain in Gtmo even though their release was approved by the courts and/or the government, and some remain without charges or trials. Out of almost 800 prisoners, there are four "convicts" at Gtmo, described by the Miami Herald as the video maker, the small arms trainer, the cook and the kid (Omar Khadr captured in combat as a 15 year old, having been recruited into the war by his father and denied consideration under the "child soldier law", to which he was legally entitled.)

Presumably these Bagram prisoners have minimum rights under Geneva, which would preclude abuse and torture. Beyond that, there does not appear to be much difference between the system Obama is operating and the system Bush intended, and the improvements were forced by the Court. The demand for habeas rights for Bagram prisoners was opposed by the Obama Administration. That was based on it being in a war zone, but, as the article said, most of the prisoners aren't captured in combat. They are basically criminal suspects but with none of the normal rights of the accused or the imprisoned, and few of the rights of POW's either.

Posted by Helen C Allard
06/10/2011, 10:28 AM

Diane has hit right on the nail but it seems that some people just want to argue to hear themselves argue. It was all Bush and you should forgive the enemy but remember the bastards name...

Posted by A.B
12/06/2011, 10:55 PM

@Frank This is a war against terrorism not a war against the Afghani State itself. So why are the common people are being detained without a chance to stand a fair trial? This is merely an act of barbarism. You start doing some research brother, i am sure your orgasm would be stimulated itself.

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