The Washington Post, August 5, 2013

In Afghanistan, a second Guantanamo

Unlike at Guantanamo, the detainees in Afghanistan have no right to habeas corpus

By Kevin Sieff

KABUL — Of all the challenges the United States faces as it winds down the Afghanistan war, the most difficult might be closing the prison nicknamed “The Second Guantanamo.”

The United States holds 67 non-Afghan prisoners there, including some described as hardened al-Qaeda operatives seized from around the world in the months after the Sept. 11, 2001, attacks. More than a decade later, they’re still kept in the shadowy facility at Bagram air base outside Kabul.

Closing the facility presents many of the same problems the Obama administration has encountered in its attempt to close down the Guantanamo Bay detention center in Cuba. Some U.S. officials argue that Bagram’s resolution is even more complicated — and more urgent. The U.S. government transferred the prison’s Afghan inmates to local authorities this year. But figuring out what to do with the foreign prisoners is proving to be an even bigger hurdle to shutting the American jail.

“Is there a plan? No. Is there a desire to close the facility? Yes,” Gen. Joseph F. Dunford Jr., the top U.S. general in Afghanistan, said in an interview.

Bagram Air Base in Afghanistan.

With the United States’ nearly 12-year fight in Afghanistan due to end next year, the State Department and the Pentagon have been unable to come up with a strategy for the trial or repatriation of men from more than a dozen countries held at Bagram. Meanwhile, the population in the prison is growing because of the apprehension of foreign fighters in joint U.S.-Afghan Special Forces operations. The newest detainee was sent to Bagram last month.

None of the prisoners have been formally tried. Many have been cleared for release by informal military review boards, but most of those were never freed.

Because the detention center is on Afghan soil, U.S. forces are technically obliged to shutter it when their combat role here formally ends in December 2014. But some U.S. officials and politicians say that would pose an enormous security risk.

The best solution, they say, is to keep the facility open under U.S. oversight, possibly for decades. It is not at all clear, though, that the Afghans will permit that.

As at Guantanamo, U.S. officials have deemed a portion of the Bagram prisoners too much of a threat to send home to countries that can’t or won’t keep them locked up. Officials worry that it might not be possible to convict the men in U.S. courts, because evidence could be classified or seen as weak.

“They’re too dangerous to let go,” said Sen. Lindsey O. Graham (R-S.C.), a reservist Air Force lawyer who was appointed last month by Dunford to consider solutions to the detention dilemma.

“We’re a nation without an available jail in the war on terror, and we need to fix that,” Graham said in an interview.

Keeping a U.S.-run prison in Afghanistan beyond 2014 would require the permission of Afghan President Hamid Karzai, who has staunchly resisted American-run detention facilities. The U.S. government has already hit significant stumbling blocks in negotiating a long-term bilateral security agreement with the Afghans.

The Afghan government this year quietly agreed to allow the United States to continue operating its detention center at Bagram for “third-country nationals” — mostly Pakistanis — in exchange for handing over the Afghan prisoners, who are now held in a separate facility. But Afghan officials, including Karzai, assumed the United States would relinquish its prison by 2014.

Only a handful of the detainees have been repatriated, in part because of Pakistan’s reluctance to provide security guarantees required under U.S. legislation. U.S. law also mandates that before a prisoner’s release, the Pentagon must assess “the threat posed by the individual and the security environment of the country to which the individual is to be transferred.” Such studies can take many months.

“For the past decade, the U.S. has been able to hide Bagram behind the shield of ongoing military conflict in Afghanistan,” said Tina M. Foster, director of the International Justice Network, which represents more than 30 detainees. “What’s happening now is that the shield is disappearing and what’s left is the legacy of the second Guantanamo, which is going to last beyond the Afghan war.”

Lawyers such as Foster who represent clients at both Bagram and Guantanamo describe the situation at the Afghan prison as far more opaque. For years, there were widespread allegations of torture at Bagram, many of them later borne out in military reports that were made public. U.S. officials say the conditions have markedly improved. Although attorneys say they haven’t heard the same accusations from detainees since 2008, they also say they have a limited view into the facility.

Unlike at Guantanamo, the detainees in Afghanistan have no right to habeas corpus, a point Foster is arguing in the U.S. Court of Appeals for the District of Columbia Circuit.

Pentagon officials say they expect most detainees to be transferred to their home countries “once those countries have provided us assurances that they will take appropriate steps to mitigate the threat these individuals pose,” said Lt. Col. Todd Breasseale, a Pentagon spokesman.

“In some cases, we may seek to have individuals prosecuted for war crimes or violations of U.S. or Afghan law,” he added.

But the process of repatriation has proved extremely slow and complicated. As for prosecutions, none of the detainees captured abroad since the Sept. 11 attacks have been tried in military commissions in the United States. And some detainees can’t be tried by the Afghans because they didn’t violate Afghan law.

Graham said it would be foolish to assume that all the detainees could be sent to their home countries or tried before the end of next year.

Last year, some of the first Pakistani detainees were repatriated after a year of fraught negotiations. According to their attorneys, one was a 14-year-old boy picked up in a U.S.-led night operation and the other was an employee of an Afghan military base whose colleagues had turned him in after a personal dispute.

“If it takes a year to release those guys, whose innocence was never in dispute, what does it say about the prospect for the others?” said Sarah Belal, the lead attorney for Justice Project Pakistan, which has advocated for the repatriation of Pakistani detainees at Bagram.

Until at least 2007, the United States snatched high-level terrorism suspects in Pakistan and brought them across the Afghan border and, eventually, to Bagram.

Other detainees were kidnapped across the Middle East, Asia and Europe and taken to the Afghan facility in the early years of the past decade.

Amin al-Bakri, a Yemeni citizen, was seized by U.S. agents while he was on a business trip in Thailand. Fadi al-Maqaleh disappeared from his home in Yemen in 2004, when he was a high school student, and later turned up at Bagram.

Both Yemenis have been cleared for release by military detainee review boards on three occasions, beginning in 2010, according to Pentagon records. But the Obama administration has declined to repatriate detainees to Yemen because of concerns that country might release potential terrorists without a serious trial.

“Amin is surely not charged with anything, and there is not a single evidence that might keep him in prison all this time,” Khaled al-Bakri, Amin’s brother, said in a phone interview. The Americans “are denying him to see his children and wasting the best days of his youth in prison.”

Graham said the United States should focus on securing a guarantee from the Afghan government that the Bagram detention facility will remain open after the U.S. war effort formally ends.

“Radical jihadists are going to flow to Afghanistan after 2014,” Graham said. “We need a system there that works.”

U.S. officials in Afghanistan were candid about how much work remains to be done — regardless of whether Bagram is closed or kept open beyond 2014.

“We clearly need a transition plan on that issue,” Dunford said.

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