Late last Friday, the Justice Department made a familiar and disappointing argument that the 600 or so detainees at the U.S.-run Bagram prison in Afghanistan should be denied the right to challenge their detention. It's disappointing because President Obama has followed the Bush administration's lead by refusing this basic right to detainees in overseas U.S. prisons. It's familiar because the courts have already seen this case. It was called Boumediene v. Bush, and it ended when the Supreme Court found that Gitmo detainees have the right to challenge their detention at Guantánamo. Bagram should not be a Constitution-free zone any more than Guantanamo should.
The detention facility at Bagram was set up by the U.S. military after the U.S. invaded Afghanistan in 2001. Like Guantánamo, it was designed to be out of the reach of U.S. courts — a legal black hole — during the so-called "war on terror," which itself lacks geographical or durational boundaries. Like Guantánamo, Bagram holds individuals from all over the world, including locations where there are no combat operations taking place. Like Guantánamo, Bagram holds terrorism suspects who were not captured on the battlefield and has imprisoned victims of the Bush administration's illegal extraordinary rendition program. And like with Guantánamo, there are well-documented reports of serious prisoner mistreatment and torture at Bagram. But in some ways, Bagram is even worse than Guantánamo because there is less judicial oversight, process and public scrutiny.
That dearth of scrutiny is what led to the death of Dilawar, the Afghani cab driver and Bagram detainee profiled in the Oscar-winning documentary Taxi to the Dark Side. Government records show that Dilawar's harsh torture and abuse during interrogations at Bagram ultimately led to his death, which the government deemed a homicide, even as the military publicly claimed he died from natural causes.
President Obama took the admirable first step of ordering the closure of Guantanamo. And he's spoken about recommitting this country to justice and rule of law, not only here at home, but abroad as well. This can't happen if the United States refuses detainees the right to challenge their detention. When the U.S. detains anyone, anywhere, it must ensure that humane treatment and some fair process for challenging detention are provided. When prisoners are in American custody, anywhere, our values and commitment to the rule of law are at stake.
If we’ve learned anything from Gitmo, it’s that U.S.-run detention facilities cannot be beyond the reach of the courts and left only to the political branches. Closing Guantánamo is not enough if we repeat the same mistakes elsewhere.