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Obama Considers Repatriating Foreign Prisoners from Bagram

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Ten years ago, foreign prisoners, seized in other countries, began to arrive in the U.S. prison at Bagram airbase in Afghanistan. Some were held in a secretive part of the prison and had often passed through other secret facilities in Afghanistan or elsewhere. The majority of those prisoners ended up in Guantánamo, but some were stealthily repatriated at various times. Others, however, continued to be held, beyond the rule of law.

The prison never conformed to the Geneva Conventions, which were, essentially, discarded when the Bush administration decided to hold prisoners in its “war on terror” as “illegal enemy combatants” and which have never been reinstated. Moreover, the prisoners remained beyond the law even when the Supreme Court granted habeas corpus rights to the Guantánamo prisoners in June 2004, and again in June 2008, after Congress had tried to remove those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

In March 2009, in Washington, D.C., District Judge John D. Bates briefly brought this era of secrecy and unaccountability to an end, granting the habeas corpus petitions of three foreign prisoners — Redha al-Najar, a Tunisian seized in Karachi, Pakistan, in 2002; Amin al-Bakri, a Yemeni gemstone dealer seized in Bangkok, Thailand, in 2003; and Fadi al-Maqaleh, a Yemeni seized in 2004.

Although Judge Bates ruled that the habeas corpus rights granted by the Supreme Court to the Guantánamo prisoners extended to the foreign prisoners in Bagram, because “the detainees themselves as well as the rationale for detention are essentially the same,” the Obama administration appealed, and its appeal was granted by the D.C. Circuit Court in May 2010.

That ruling failed to take into account that Judge Bates had not ruled in favor of a fourth man, Haji Wazir, an Afghan, deciding that the fate of Afghan prisoners ought to involve negotiations between the United States and Afghan governments. Wazir, it turned out, had been seized in 2003 in the United Arab Emirates, where he ran a chain of hawala banks. He was rendered to a CIA black site prior to his arrival at Bagram on suspicion that he was a banker for Osama bin Laden. In June 2011, former CIA interrogator Glenn Carle wrote a book, The Interrogator: An Education, in which he explained that he had established that Wazir was not bin Laden’s banker. He also stated that his findings were ignored, and that Wazir was not released from Bagram until February 2010.

For the other prisoners, Judge Bates found that the review process introduced under George W. Bush at Bagram was both “inadequate” and “more error-prone” than the review process introduced at Guantánamo. He also found that it “falls well short of what the Supreme Court found inadequate at Guantánamo.” In response, the Obama administration introduced a review process modeled on the review process at Guantánamo, which the Supreme Court found inadequate, and that is the process that has been used ever since to decide what should happen to the 645 prisoners who were held in September 2009 (according to the first unclassified prisoner list, released in January 2010), and to the thousands of prisoners held in the last two and a half years.

By January this year, the Washington Post reported that 2,600 prisoners were held in Bagram — or, more specifically, in the replacement facility, renamed the Parwan Detention Center, which opened in December 2009. Moreover, as the Post described it on January 5, President Karzai “called for the United States to hand over its biggest military prison in Afghanistan within a month,” stating that “Afghan government investigators had found violations of the Afghan constitution and international human rights conventions at the prison.” He “did not provide details of the alleged violations, but he said in a statement that they constituted a ‘breach of Afghan sovereignty.’”

Karzai was drawing on a U.S. memorandum publicly issued two years ago, in which officials stated that they expected the Parwan facility to be transferred to Afghan control in early 2012, although U.S. officials have pointed out that any proposed transfer is subject to “demonstrated capacity,” and the Afghan government does not have a good track record to date.

Nevertheless, in sounding out the possibilities of closing the Parwan facility, the Obama administration is finally addressing the problems presented by the foreign prisoners. A year ago, Daphne Eviatar of Human Rights First visited Parwan and discovered that 41 prisoners came from outside Afghanistan, and were still held, even though “more than a dozen” had been recommended for release. One story she heard concerned Hamidullah Khan, a Pakistani who was just 16 years old when he was seized in the summer of 2008. When he was allowed to communicate with his family, in 2010, he explained that his case had been reviewed and that he had been recommended for release, but he was still held.

Eviatar added that the foreign prisoners were “from Pakistan, Tunisia, Kuwait, Yemen and even Germany,” but could not find any explanation for why, even when cleared, they were still held. She noted that “one soldier complained about how frustrating it is to be unable to tell innocent prisoners when they’ll be going home, or what’s causing the holdup,” and that U.S. officials in Afghanistan had been able to state only that the problem was “somewhere in Washington.”

In the Washington Post last week, Peter Finn and Julie Tate reported that Washington was finally dealing with the problem. Noting that the foreign prisoners now “number close to 50” and “were in some cases picked up on the battlefield in Afghanistan and in others detained in third countries and taken to the prison by the CIA, according to U.S. and foreign officials,” they wrote that, with a handover of the prison now in the cards, “American officials believe that Afghan authorities are unlikely to have any interest in either continuing to hold the foreigners or in putting them on trial.”

The officials added that, by starting the process of repatriating foreign prisoners now, they were hoping not only to successfully “negotiate transfers with the detainees’ home countries,” but also to “arrange for post-transfer monitoring, and secure diplomatic assurances that detainees will not be abused when they return home.”

They added that a “small number” of those currently held “may be deemed to pose a terrorist threat, requiring their continued detention or close supervision by their home country if released,” and also explained that some of the men are Yemeni, “complicating their possible repatriation.” (In response to the failed airline bomb plot in December 2009 by Umar Farouk Abdulmutallab, a Nigerian man recruited in Yemen, Barack Obama issued a moratorium on releasing any Yemenis “because of concerns about the security situation in Yemen,” which still stands to this day.)

As the Post described it, the Parwan prison holds “up to two dozen Arabs of various nationalities, according to administration and foreign officials,” although the rest are Pakistanis, and it was noted that the first to be released may well be one of those men, Yunus Rahmatullah.

Seized in Iraq by British Special Forces in 2004, he was subsequently handed over to U.S. forces and rendered to Bagram by the CIA, where his detention went largely unnoticed until lawyers in the UK — at solicitors Leigh Day & Co. and the legal action charity Reprieve — succeeded in convincing the Court of Appeal to grant him a writ of habeas corpus and to order the British government to take custody of him. As the Post described it, his lawyers “argued in the British courts that the transfer violated a memorandum of understanding between the U.S. and British militaries, and was a grave violation of the Geneva Conventions because it involved the removal of a civilian from the war theater.” The judges added that if Foreign Secretary William Hague and Defence Secretary Philip Hammond failed to secure his release, the court would “be moved to commit you to prison for your contempt in not obeying the said writ.” A deadline of February 14 was set for Rahmatullah’s release.

The UK government has appealed the ruling, although ministers have asked for the Obama administration to arrange for Rahmatullah to be returned to Pakistan, which, as the Post put it, “would satisfy the court and his lawyers.” The British court also made a point of noting that, back in 2010, a review board at Bagram had cleared Rahmatullah for release.

Cori Crider, Reprieve’s legal director, said, “It would make no sense for the Obama administration to ratify this Bush-era war crime. Under the Geneva Convention, Yunus Rahmatullah is Britain’s responsibility and should never have been sent to Bagram in the first place. The man is cleared, his family are waiting, and Pakistan is apparently happy to have him — it’s high time to send him home.”

The Post noted that another Pakistani, Amanatullah Ali, who was also picked up by British forces in Iraq, is seeking his release through the U.S. courts, and that seven Pakistanis, including Yunus Rahmatullah and Hamidullah Khan, are suing the Pakistani government “either for its alleged role in their capture or for failing to secure their release.”

U.S. officials, stating that they were prepared to release Rahmatullah, nevertheless played down the role of the British court and said that “any transfer home has been complicated by the deterioration in relations between the United States and Pakistan.” One official said, “We will do this on our timetable.”

However, it appears that that is not entirely true and that the days of holding prisoners at Bagram whether or not they have been cleared for release — as at Guantánamo, where 89 of the remaining 171 prisoners have been cleared, but are still held — are coming to an end. For the foreign prisoners held at Bagram without rights for up to ten years, the potential end of this long-running saga of injustice is to be welcomed.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.