The incoming Obama Administration says it wants to shut down the U.S. military prison at Guantánamo Bay. But even if Guantánamo closes, the controversial U.S. practice of jailing suspected al-Qaeda militants and other terrorists indefinitely won't end, because such detentions continue on an even greater scale at the U.S. military base at Bagram, Afghanistan, 40 miles north of Kabul. Approximately 250 detainees are currently being held at Guantánamo; an estimated 670 are locked up under similar conditions at Bagram.
The Obama transition team has declined to comment on whether U.S. detention policy for enemy combatants will change with a new Administration. Nevertheless, the U.S. military is building a new prison for what it calls "unlawful enemy combatants" at Bagram that won't be finished until Obama is well settled in the White House. "The Obama Administration is inheriting not so much a shrinking Guantánamo as an expanding Bagram," says Tina Foster, executive director of the International Justice Network, a nonprofit legal group based in New York City. (Read "Trying to Tie Obama's Hands on Gitmo.")
Foster and a consortium of other human rights lawyers will be in Federal District Court in Washington on Jan. 7 to demand that those being held at Bagram get the same habeas corpus rights the right to know the charges against them, and to be freed if a court deems those charges insufficient that the Supreme Court gave Guantánamo detainees last summer. Their case centers on Redha al-Najar, a 43-year-old Tunisian national who has been held without charge in U.S. military custody since May 2002. Al-Najar was arrested in Karachi, Pakistan, where he had been living with his wife and child. According to his attorneys, al-Najar spent the next two years being shifted among various CIA "black sites" before ending up at Bagram. They argue he has been held for more than six years, virtually incommunicado and without charges or access to a fair means to challenge his imprisonment. The suit asks the court to order al-Najar's release.
What the Pentagon calls "the long war" on terror has led the U.S. military to seek a way to keep people it deems a threat behind bars indefinitely. While Guantánamo's unique status far from the battlefield yet subject to total U.S. sovereignty led the Supreme Court to grant Gitmo detainees habeas relief, the U.S. government argues that neither circumstance applies at Bagram. "Federal courts should not thrust themselves into the extraordinary role of reviewing the military's conduct of active hostilities overseas, second-guessing the military's determination as to which captured aliens as part of such hostilities should be detained, and in practical effect, superintending the Executive's conduct in waging a war," the Justice Department said in its Dec. 19 filing in the al-Najar case.
The U.S. military had hoped to farm out the Bagram detainees to prisons run by Afghanistan and other nations, but over the past year, amid escalating violence and a surging prison population, it became clear that it would not be able to hand over all the detainees. So the Pentagon has decided to build a new prison to replace the current Bagram Theater Internment Facility, a converted hangar used by the Soviets during their occupation. The new facility, expected to cost at least $60 million, is slated to hold 600 detainees under normal circumstances, with a capacity of 1,100 in emergency conditions. It will be tucked into a remote 40-acre location on the 4,000-acre base.
The original U.S. prison, established early in 2002, was the main screening site for those captured by Americans and their allies during initial fighting in Afghanistan. At least two detainees died there in December 2002 after being beaten by U.S. troops. While conditions are said to have improved since then, hundreds of prisoners remain in wire mesh pens edged with coils of razor wire, and earlier this year U.S. military officials revealed that a Bagram interrogator had been convicted of assaulting an Afghan detainee who later died. Just last month, the military issued a statement saying it would investigate whether a pair of U.S. soldiers had abused Afghan detainees.
The al-Najar case presents Obama with a tough choice. If he keeps the existing rules at Bagram, he'll have to justify why those prisoners should be treated more harshly than those who ended up at Guantánamo. But if he wants them handled the same way as the Guantánamo detainees, he's going to run afoul of the U.S. military's wishes. Given Obama's promise to nearly double the number of U.S. troops in Afghanistan, that's not something he wants to do. And the Pentagon argues that giving those held at Bagram habeas relief would endanger the very U.S. troops Obama is prepared to order to Afghanistan.
"Given the ongoing war, there is every reason to believe that our military mission in Afghanistan would be compromised if the writ is extended to Bagram," the government said in its court filing. "To provide alien enemy combatants detained in a theater of war the privilege of access to our civil courts is unthinkable both legally and practically." But Foster, one of the lawyers representing al-Najar, sees the case from another angle. "Does Obama," she asks, "really want to have Bagram be his Guantánamo for the next four years?"