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Raise the Red Flags

Hina Shamsi,
Director, ACLU National Security Project
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January 7, 2008

The lead article in today’s New York Times raises all sorts of red flags about the likelihood of prisoner abuse in U.S. custody in Afghanistan. The article describes a Red Cross complaint about the treatment of prisoners at the United States’ Bagram military base, just outside Kabul, as well as the conditions under which they are held. The descriptions are chillingly similar to conditions and treatment the military’s own investigators found contributed to prisoner abuse by U.S. forces in Iraq and Afghanistan starting around 2002: massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado,” in “a previously undisclosed warren of isolation cells,” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions.”

Tim Golden, the Times reporter who wrote the piece, is no stranger to the Bagram beat. In a series of investigative articles beginning in 2005, he chronicled the brutal beatings and other cruelty that lead to the December 2002 deaths of two detainees in U.S. custody at Bagram – and the lack of senior-level accountability that followed.

Although conditions at Bagram have improved, at least since the universal revulsion at the revelations of Abu Ghraib and Congress’ passage of the Detainee Treatment Act of 2005, Golden’s report shows that the tragic mistakes of the past may be in danger of repetition. For example, two American officials tell Golden of a confidential report from the International Committee of the Red Cross last summer that “dozens of prisoners had been held incommunicado for weeks or even months.” And Bagram appears to be just as bad, if not worse, than Guantanamo:

Military personnel who know both Bagram and Guantanamo describe the Afghan site, on an American-controlled military base 40 miles north of Kabul, as far more spartan. Bagram prisoners have fewer privileges, less ability to contest their detention and no access to lawyers. Some detainees have been held without charge for more than five years, officials said.

As if that were not enough, perhaps the most troubling aspects of the article is in what the official Pentagon response does not say. In response to a reported Red Cross complaint that prisoners were hidden from its inspectors:

The senior Pentagon official for detention policy, Sandra L. Hodgkinson, would not discuss the complaint, citing the confidentiality of communications with the Red Cross. She said that the organization had access to “all Department of Defense detainees” in Afghanistan, after they were formally registered, and that the military “makes every effort to register detainees as soon as practicable after capture, normally within two weeks.

Ms. Hodgkinson’s phrasing is noteworthy. What if there are detainees in Afghanistan who are not “Department of Defense detainees” but are instead held by the CIA or another civilian agency? We know, after all, that the CIA was holding “ghost prisoners” – i.e. prisoners held in secret, hidden from the Red Cross – at a secret facility called the “Salt Pit” in Afghanistan. According to a groundbreaking Washington Post report in 2005, the CIA prison was moved to Bagram for a while, but was later moved outside the base. The article doesn’t address this question, but note that the administration has never renounced the CIA’s illegal secret detention and interrogation program that President Bush announced on September 6, 2006.

It is clear, though, that another lesson from the torture scandal seems to have been ignored: different rules for different agencies and different prisoners are an invitation to abuse. According to the article, at Bagram, Special Operations forces functioned with a different set of rules than the rest of the military:

One former Bush administration official said the Pentagon told Congressional leaders in September 2006 that a small number of prisoners held by Special Operations forces might not be registered within the 14-day period cited in a Defense Department directive issued that month. The exceptions were to be “approved at the highest levels,” the former official said.

Finally, the Bush administration is not content to limit its regime of illegal detention to Guantanamo, and has tried to foist it – without success – on Afghanistan:

Afghan officials rejected pressure from Washington to adopt a detention system modeled on the Bush administration’s “enemy combatant” legal framework, American officials said. Some Defense Department officials even urged the Afghan military to set up military commissions like those at Guantanamo, the officials said.

The article makes clear that American military officials and diplomats have been stymied in an attempt to do the right thing – financing an Afghan prison that meets international humane treatment standards and has trained Afghan guards – and they clearly face uphill challenges. But it is when a prisoner is in American custody and under American control that our values are at stake and our commitment to the rule of law is tested. And the Times article gives cause for concern that we may be failing the test. Both Congress and the Executive Branch need to investigate what’s happening at Bagram if we are to avoid a tragic repetition of history – assuming it hasn’t already happened.