US still holds up to 60 prisoners indefinitely in Bagram in Afghanistan

- While the US and Afghanistan have just signed a bilateral security agreement that will allow US and some NATO troops to remain after the end of 2014, there are still outstanding issues such as the fate of a number of prisoners still held by the US.

Journalist Jessica Donati reported to Reuters that the status of a number of foreign individuals who are in custody in a section of Bagram Air Base north of Kabul will be unclear when the present mission ends on December 31st this year. The US will not have the right to continue to hold them there after the mission ends. The identity of the prisoners is not known nor even how many they are. However, all Afghan prisoners were turned over to the Afghan authorities so they are non-Afghans. Brigadier General Patrict Reinert, the commanding general of the US Army Reserve Legal Command claims that all the prisoners are foreign nationals captured by the US around the globe. They ended up at the site near the Bagram Air Base.
An article in Rolling Stone last year went into some detail about the facility: Around 60 non-Afghan nationals are currently being kept by the U.S. at the prison near Bagram Airfield in Afghanistan – all without charge or trial – following the hand-over of around 3,000 Afghan prisoners to the Afghan government in March. Chris Rogers of the Open Society Foundations describes the facility where the prisoners are held a second Guantanamo Bay that no one has heard about. Some of the detainees might face prosecution or mistreatment if returned to their home countries. The detainees are held as quasi prisoners of war as part of the ongoing war on terror against Al Qaeda and affiliates. The theory is that they can be legally held until the war is over! While the combat mission in Afghanistan may be over no doubt the US can claim that the war against terrorism continues. However, the US will need the permission of the Afghan government to continue to keep these prisoners at Bagram
The prisoners could be moved to Guantanamo but this seems unlikely. Many are no doubt in the Bagram facility because the US wanted to avoid attention to the fact that the US is still holding people indefinitely at Guantanamo in Cuba. Sending more captured suspected terrorists to Guantanamo would simply create unwelcome publicity at a time when Obama is supposed to be trying his best to close the facility. At last count, there were still 149 detainees held at the facility. Reinert said that some of the prisoners could be transferred to the US and tried in US courts in certain situations: "If someone has committed a crime overseas that could be a crime also in the United States, a detainee could be transferred back to the United States." This might not be a popular move and there may be many cases where there would not be sufficient evidence for a conviction.
 Maryam Haq, a lawyer with the Justice Project Pakistan(JPP) wants to ensure that all Pakistani prisoners are back in Pakistan before the end of 2014. The US already quietly sent back 14 Pakistani detainees because there was no real evidence against them. The detainees do not have their own lawyers. In 2009, detainee review boards(DRBs) were set up. The panels are composed of US administrative officials and their role is simply to decided whether inmates need to be kept in custody. One detainee called them a joke and noted that the only evidence that they had against him was a document he was forced to sign. Sarah Belal, the director of JPP, said that the US had an obligation to decide what to do with these individuals by the end of 2014: “These individuals are trapped in indefinite, illegal detention. The US and other governments have the means to bring this to an end – it is time that they and the public have the will.” Perhaps the solution to the problem will be to keep the Bagram prison open with the agreement of the new Afghan government upon agreeing to make appropriate payments to Afghan authorities for the right to do so.

Obama appeals decision that blocked bill allowing indefinite detention of U.S. citizens

The Obama administration appealed a judge's decision to block a law allowing indefinite detention less than a day after the decision was made. The law gives the government power to detain U.S. citizens indefinitely without trial.

Judge Katherine Forrest ruled in New York last Wednesday ( Sept. 12 ) that the law violates the U.S. constitution. Prize-winning journalist Chris Hedges had brought a suit against the law claiming that it violated his rights of free speech even though Obama declared in a signing statement that his administration would never detain any American without a trial. Perhaps he would put them on his target list to be terminated by drones or other means however.

Even though the judge is an Obama appointee she found the law was worded too vaguely and that Congress should define more clearly what behavior fell within the scope of the law. In Forrest's opinion the law's present wording could be applied to free speech and the practice of journalism as Hedges had argued.

Attorney for Hedges, Bruce Aftran, said:

“Judge Forrest’s decision firmly rejects governmental overreach.... We now have a judgment that the NDAA, by threatening indefinite military detention as the price of speech, violates the First Amendment and threatens core American values. The federal court has denied the dangerous notion that American civilians can be taken into military custody and that the President is above the law outside of the reach of the courts. The decision is an affirmation of the American constitution.”

Lawyers from the office of U.S. Attorney Preet Bharar filed papers for an appeal of Forrest's ruling in Manhattan on Thursday. The law is part of the National Defense Authorization Act for 2012.

Baher Azmy, legal director of the Center for Constitutional Rights, explained some of the consequences of the law:

"It has no real geographical limitation, it has no temporal limitation. It basically puts into law, into permanent law, the ability to indefinitely detain, outside of a constitutional justice system, individuals the president picks up anywhere in the world that the president thinks might have some connection to terrorism."

The Forrest decision is quite limited in its critique of the law in that it only questions the vagueness of the language. Supposedly the NDAA does not suspend the right of habeas corpus. Legally speaking it does not. However, what it does is set up a kangaroo court that decides whether a suspect is legally held under the law:

Habeas corpus, in this context, means that for individuals in the United States, or at Guantanamo, the government only needs to prove to a federal judge that it’s more likely than not that the person in question is a “member” or “substantial supporter” of al Qaeda, the Taliban, or an “associated force”. It’s not clear what these vague terms mean, and in a habeas proceeding the government often presents classified information, the content of which is presumed by the judge to be accurate and reliable. Importantly, habeas corpus in this context does not guarantee a jury trial, at which the individual must be found guilty of crimes beyond a reasonable doubt, or ensure that the government only arrest people when it has probable cause.

No one will ever be able to challenge the information presented by the government because it is classified. The judge presumes the evidence to be accurate and reliable. The suspect has no right to be charged and tried. Habeas corpus is replaced by justice interruptus and presidential decrees.

Yemeni prisoner dies in Guantanamo

Adrian Latif died in confinement at Guantanamo prison on September 5. The cause of death is under investigation. Latif had a history of mental illness but also of consistent challenges against his confinement.

Obama made closing of the Guantanamo Bay prison one of his campaign promise. On January 22, 2009 he signed an order that the facility be closed within a year. However two years later with Guantanamo still open Obama on March 7, 2011 signed another executive order that reversed his position on trying the detainees in civilian courts. He ruled that detainees could be tried by military tribunals.

Of course Guantanamo not only continues to be open but it is being upgraded. The U.S. taxpayer also continues to pay approximately $800,000 per detainee per year.

Detainees are held indefinitely without trial and challenges against their being held without trial have not been successful so far. Adrian Latif is one detainee who had constantly challenged his imprisonment.

In July 2010 a judge ruled that a classified report was not sufficient evidence that Latif had trained at a training camp and ordered him released. The government naturally appealed and a higher court ruled that courts should assume government documents were accurate and reliable. In June the Supreme Court refused to hear Latif's appeal. For those accused there is no challenge available to the government's decision since it must be assumed evidence is accurate and reliable. The question of holding someone indefinitely without trial does not even seem to have been addressed. This led to a great lack of hope among many prisoners. Latif himself tried to commit suicide a number of times and also joined in a hunger strike.

Latif also suffers mental problems perhaps caused by a traffic accident he had suffered before being sent to Guantanamo. In fact when he was captured he claimed he was going to Pakistan for medical treatment.

Latif often battled guards at the facility. On one occasion he threw "bodily fluids" at a guard and another time spit in the face of another guard. He was constantly being subject to disciplinary measures as a result. This no doubt simply fueled his anger.

At one time Latif was actually cleared for release as no danger to the U.S and a court ordered his release but this was just at the time that the Obama administration had decided that no more detainees would be released to Yemen because at least some had joined radical Islamist groups. There were no plans even now to try Latif for any crimes. At most he is claimed to have been trained with the Taliban in Afghanistan.

David Remes Latif's attorney said:

"Anyway you look at it, he died because he was there... If he committed suicide, it was because his detention killed his spirit. If it wasn't suicide it could have been medical neglect. It could have been mistreatment by the guards. But at the end of the day he died because he was there."

Latif was in his early to mid thirties when he died. He had been at Guantanamo for over a decade.

U.S. House approves indefinite detention and 8 billion increase in defense budget

A bill approving indefinite detention of terror suspects passed the House of Represenatives today. The detention applies even to U.S. citizens and even if they are captured in the U.S. The right of habeas corpus is by now ancient history.

An amendment that would bar indefinite detention sponsored by Adam Smith a Democrat and Justin Amash a Republican was defeated by a vote of 238 to 182. Amash noted:“The frightening thing here is that the government is claiming the power under the Afghanistan authorization for use of military force as a justification for entering American homes to grab people, indefinitely detain them and not give them a charge or trial,” Apparently this does not matter to a majority in the House.

A defense bill totaling a huge 642 billion was also passed by a vote of 299-120. The deficit cutting agreement reached by Obama and the Republicans was simply ignored. Instead of cuts 8 billion was added to the budget. The legislators simply ignored their own earlier legislative agreements.

To add insult to injury the bill as well calls for a missile defense system on the East Coast a system the military itself officially opposes. The bill also will prevent the scheduled reduction of nuclear weapons that is legally required under the terms of a treaty with Russia. No doubt this is part of a stimulus package for the military industrial complex. For more see this article.

UN Human Right's Chief criticizes Obama

   Navi Pillay is the chief of Human Rights for the UN. She criticized Obama for not following through on his promise to close Guantanamo three years ago.
    In a statement Pillay said:  “It is ten years since the US Government opened the prison at Guantanamo, and now three years since 22 January 2009, when the President ordered its closure within twelve months,”“Yet the facility continues to exist and individuals remain arbitrarily detained – indefinitely – in clear breach of international law.”  The U.S. considers that the detainees are unprivileged combatants in hostilities between the U.S. and Islamic terrorists and it is legal to hold them indefinitely. However many legal analysts would side with the UN position that holding people indefinitely with no charges is against international law.
   Certainly the practice entails that anyone suspected of terrorism has no right of habeas corpus and can be detained indefinitely without charge. A considerable number of detainees have been released. However in many cases the U.S. cannot find countries willing to receive those who are released. Only six trials have been held so far. Obama has said that some of those detained will probably spend the rest of their lives in custody without trial.
    Eight people detained died in custody. Six of those committed suicide. Advisers to Obama claim he is still committed to closing Guantanamo. I doubt it will be a prominent issue in the upcoming election campaign as the Republicans for the most part are quite happy that the facility remains open. For more see this article.