By Huma Yusuf
Dawn.com
Monday, 21 Sep, 2009

After championing habeas corpus rights for Guantanamo detainees during his election campaign, Obama seems like a hypocrite for having different rules apply at Bagram. –Photo by AFP


US President Barack Obama dominated headlines last week for tossing out George W. Bush’s plans for a missile defence shield in Eastern Europe.

The praise with which that decision was met globally will probably help mask the fact that another announcement earlier in the week, regarding the Bagram detention facility in Afghanistan, led to unflattering comparisons between Obama and his trigger-happy predecessor. Moscow may be satiated, but countries in the forefront of the ‘war on terror’ are waiting to see the change they need from the US.

Last Monday, Obama’s government announced new rules allowing prisoners at Bagram — a former Soviet airbase north of Kabul that America has used as a prison since 2001 — to challenge their detention. Under the laws of war, over 600 people — labelled as ‘enemy combatants’ — have been held at Bagram for years without hearing charges against them or receiving access to legal counsel.

There have also been many allegations of torture. Following swift action to close the detention facility at Guantanamo Bay, Obama’s reconsideration of prisoner rights at Bagram is welcome.

But then there’s the fine print. Under the new rules, inmates will have their detention reviewed only every six months. Military officials — rather than lawyers — will be assigned to prisoners and tasked to gather witnesses and evidence that might help challenge their detention. The officials’ findings will then be presented before military review boards. Unlike Gitmo prisoners, Bagram detainees will not be able to challenge their detention in US courts on the basis of habeas corpus.

In a throwback to Bushisms, the Obama administration justified denying prisoners access to legal counsel by pointing out that they were captured in a battlefield and were being held in a war zone. Government officials also highlighted the importance of Bagram as a holding pen for terror suspects captured outside Iraq and Afghanistan now that Guantanamo was being closed and the CIA’s secret prisons had become inoperative.

Writing in The New Yorker, Amy Davidson questioned the Obama administration’s twisted logic as follows: ‘So closing Guantanamo increases the need for a new Guantanamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners?’

The fact is, there is nothing new about Obama’s revised rules for Bagram. Without access to lawyers, the prisoners in Afghanistan remain beyond the reach of any legitimate system of justice and, therefore, vulnerable to the US military’s transgressions of its own rules (for example, in the form of torture). And having a place to keep prisoners without filing charges against them will help sustain the widely derided practice of rendition.

Moreover, the military representatives charged with collecting evidence to help prisoners have no legal expertise and will be thus of limited use when it comes to challenging detentions. American legal experts have also pointed out that the rules do not address the fundamental problem that there is no way to assess the reliability of information that results in the capture of a person; erroneous detentions will therefore remain common.

By prolonging the mistreatment of prisoners at Bagram, the US is complicating its own progress in the ‘war on terror.’ After championing habeas corpus rights for Guantanamo detainees during his election campaign, Obama seems like a hypocrite for having different rules apply at Bagram. This hypocrisy casts a pall over well-intentioned overtures such as the American president’s legendary Cairo speech and the US army’s attempt to interfere as little as possible with the recently held Afghan elections.

Attempts to flout the Geneva Conventions by stretching the definition of ‘enemy combatants’ to include victims of rendition — terror suspects arrested in foreign countries and flown to Bagram — also reeks of the arrogance and the might-makes-right logic that has won the US few friends in past years.

After all, a detainee can’t be termed an ‘enemy combatant’ if he wasn’t in a war zone until the US army unlawfully transported him there. (A US federal district judge recognised this snag and, in April this year, ruled that three detainees who had been rendered to Bagram had the same legal rights allowing them to challenge their detention that the US Supreme Court granted Gitmo prisoners in June 2008. The US government is preparing to appeal that decision.)

For its potential to sour US-Pakistan relations, we should be worried about Bagram too. After all, Pakistanis are also reportedly being held there: in August, UK-based human rights group Reprieve initiated legal action in a case involving two suspected victims of rendition who are thought to be Pakistanis accused of having links to the militant group Lashkar-i-Taiba.

The men were arrested by British forces in Iraq in 2004 and moved to Bagram by the US army. And let’s not forget unconfirmed reports that the ever-controversial Dr Aafia Siddiqui was also detained at Bagram. If Pakistanis are in fact imprisoned at Bagram, the government should demand details about their identity and present mental and physical condition. The government should also ask that its citizens be transferred to Pakistani custody to be tried by our own anti-terrorism courts.

Such efforts would no doubt cause friction between the US and Pakistan, which is tricky in light of increased counterterrorism cooperation and our status as beneficiaries of American aid. However, our government will have no choice but to stand up to unlawful detentions at Bagram: the emotional public response to Dr Siddiqui’s case shows that Pakistanis don’t take kindly to seeing their own in US custody.

Internally, Bagram prisoners will revive the issue of missing persons within Pakistan, to the extent that it is related to the US practice of rendition during the Bush years.

In the wake of controversial drone attacks and rumours of the US private security firm Blackwater’s presence in Pakistan, there is no room for further fears of US intervention that compromises our national sovereignty or undermines the rights of Pakistani citizens.

Rather than make enemies of friends, Washington should expend its energies to establish international tribunals to try those captured in counterterrorism operations by the US and other international forces.

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