Obama Brings Gitmo And Rendition To Bagram (And Not The Geneva Conventions)

Following briefings by Obama administration officials (who declined to be identified), both the New York Times and the Washington Post reported this week that the government is planning to introduce a new review system for the 600 or so prisoners held at Bagram airbase in Afghanistan, which will, for the first time, allow them to call witnesses in their defense.

On paper, this appears to be an improvement on existing conditions at the prison, but a close inspection of the officials’ statement reveals that the proposed plans actually do very little to tackle the Bush administration’s wayward innovations regarding the detention of prisoners in wartime, and, moreover, the officials also provided the shocking news that prisoners are currently being rendered to Bagram from other countries.

Reform at Bagram is certainly needed. Until 2007, there was, as the Post explained, “no formal process to review prisoner status,” and, as District Court Judge John D. Bates noted in April, the system that was then put in place -- consisting of Unlawful Enemy Combatant Review Boards -- "falls well short of what the Supreme Court found inadequate at Guantánamo" (in Boumediene v. Bush, the June 2008 ruling granting the prisoners constitutionally guaranteed habeas corpus rights), being both "inadequate" and "more error-prone" than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals that was established at Guantánamo to review the prisoners' cases.

Revealing the chronic deficiencies of the review system at Bagram, Judge Bates quoted from a government declaration which stated that the UECRBs at Bagram do not even allow the prisoners to have a “personal representative” from the military in place of a lawyer (as at Guantánamo), and that "Bagram detainees represent themselves," and added, with a palpable sense of incredulity:

Detainees cannot even speak for themselves; they are only permitted to submit a written statement. But in submitting that statement, detainees do not know what evidence the United States relies upon to justify an "enemy combatant" designation -- so they lack a meaningful opportunity to rebut that evidence. [The government's] far-reaching and ever-changing definition of enemy combatant, coupled with the uncertain evidentiary standards, further undercut the reliability of the UECRB review. And, unlike the CSRT process [which was followed by annual review boards], Bagram detainees receive no review beyond the UECRB itself.

In what appears to be a direct response to Judge Bates' damning criticisms, government officials explained, as the Post described it, that:

Under the new rules, each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available," the official said. The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released.

While this checks all the boxes regarding the deficiencies identified by Judge Bates and includes the additional promise that, "For those ordered held longer, the process will be repeated at six-month intervals," it hardly constitutes progress, as these plans essentially replicate the CSRTs at Guantánamo, which, lest we forget, were condemned as a sham process by Lt. Col. Stephen Abraham, a veteran of U.S. intelligence who worked on the tribunals. In a series of explosive statements in 2007, Lt. Col. Abraham explained that they relied on an evidentiary process that was nothing short of “garbage,” and were designed merely to rubberstamp the Bush administration’s feeble or non-existent justification for holding the majority of the men.