Peeling The Onion
I've been musing a lot lately about the unnerving sense that we are once again swimming underwater, trying to understand what people are saying but only being able to hear a muffled, garbled sound. Some of it is just the sheer complexity of the problems we face and some of it is the overwhelming amount of information and opinion that's very difficult to sort through. One of the side effects of these periods is that you never know quite what to focus on and you find yourself with a sort of political ADD --rushing about from one subject to another, trying to figure out connections to things that appear unrelated but often turn out to be part of something bigger than you thought.
In the case of the Obama administration's approach to the torture regime, unfortunately things are becoming clearer --- and I'm kind of sorry it is:
In the Bush era, those of us who followed his administration's torture, detention and interrogation policies often felt like unwilling participants in a perverse game of hide-and-seek. Whenever one of us stumbled on a startling new document, a horrific new practice, a dismal new prison environment, or yet another individual implicated in torture policy, the feeling of revelation would soon be superseded by a sneaking suspicion that we were once again looking in the wrong direction, that the Bush administration was playing a Machiavellian game of distraction with us.
OK, call it paranoia -- a state of mind well suited to the Age of Cheney -- but when Abu Ghraib finally came to light, it turned out that our real focus should have been on the administration's program of "extraordinary rendition" and the secret CIA flights to the countries that were serving as proxy torturers for the United States. And when one case of torture by proxy, that of Maher Arar, achieved some prominence, we began looking at proxy torturers for the United States, when we should have been looking at legalized policies of torture by the U.S.
Several years ago, the British human rights lawyer Clive Stafford Smith placed that jewel in the Bush administration's offshore crown of injustice, Guantánamo, in the category of distraction as well -- distraction, that is, from the far grimmer and more important American detention facility at Bagram Air Base in Afghanistan.
....What ever happened to the U.S. prison at Bagram?
The reason I said this was an unfortunate moment of clarity is because the Obama administration is not being forthcoming about about Bagram, which is a terrible thing because Bagram makes Guantanamo look like summer camp:
It turns out that we can say very little with precision or confidence about that prison facility or even the exact number of prisoners there. News sources had often reported approximately 500 to 600 prisoners in custody at Bagram, but an accurate count is not available. A federal judge recently asked for "the number of detainees held at Bagram Air Base; the number of Bagram detainees who were captured outside Afghanistan; and the number of Bagram detainees who are Afghan citizens," but the information the Obama administration offered the court in response remains classified and redacted from the public record.
We don't even know the exact size of the prison or much about the conditions there, although they have been described as more Spartan and far cruder than Guantánamo's in its worst days. Representatives of the International Committee of the Red Cross have visited the prison, but it remains unclear whether they were able to inspect all of it. A confidential Red Cross report from 2008 supposedly highlighted overcrowding, the use of extreme isolation as a punishment technique, and various violations of the Geneva Convention.
We do know that a planned expansion of the facility is under way and will -- if President Obama chooses to continue the Bush project there -- enable up to 1,100 prisoners to be held (a step that will grimly complement the "surge" in American troops now under way in Afghanistan). There are no figures available on how long most of Bagram's prisoners have been held -- although some, it seems, have been imprisoned without charges or recourse for years -- or how legal processes are being applied there, if at all. Last spring, the International Herald Tribune reported that Afghans from Bagram were sometimes tried in Afghan criminal proceedings where little evidence and no witnesses were presented.
To students of Guantánamo, this sounds uncomfortably familiar. And there's more that's eerily reminiscent of Gitmo's bleak history. According to the New York Times, even four years after Bagram was established, wire cages were being used as cells, with buckets for toilets -- as was also true of the original conditions at Camp X-Ray, the first holding facility at Guantánamo. Similarly, as with Guantánamo, the U.S. has no status-of-forces agreement with Afghanistan, and so the base and prison can be closed or turned over to the Afghans only on U.S. say-so. Above all, while some Bagram detainees have lawyers, most do not.
While I was wondering about the state of our black hole of incarceration in Afghanistan, the Obama administration issued its first terse statement on the subject. When it came to granting four Bagram detainees habeas rights (that is, the right to challenge their detention in U.S. courts), the administration simply stated that it "adheres to [the Justice Department's] previously articulated position": Habeas would not be granted.
After all, reasoned the new government lawyers (like their predecessors), Bagram is in an indisputable war zone and different legal considerations should apply. But here's the catch neither the Bush administration, nor evidently the Obama administration, has cared to consider: It's quite possible that these four individuals, like others at Bagram, were not captured on an Afghan battlefield (as the prisoners claim), but elsewhere on what Bush officials liked to think of as the "global battlefield" of the war on terror, and then conveniently transported to Bagram to be held indefinitely.
Here we go again. A lot of the torture regime has finally unraveled, but Bagram brings us to the fundamental question: is this really a war at all? And if it is, who is the enemy and under what rules are we fighting it? That question has not been addressed and I don't see any sign that it's going to be.
This prison in Afghanistan seems to be more legitimate because it exists on a real "battlefield," right? Except we aren't fighting the Afghans. We are fighting the Taliban, which is a religious/political sect, not the government itself, which we installed and support. This prison, however, belongs to the US and the government we are fighting on behalf of has no say in how its run. And even if we grant that we are fighting a legitimate war on behalf of the Afghan people, then Bagram must adhere to the Geneva conventions, which by all accounts, it most certainly has not.
But this other issue of prisoners captured elsewhere in the "global" battlefield is going to remain a huge problem until the Obama administration decides once and for all to treat those people as international criminals rather than "combatants. Bush and his people had good reasons for wanting to call the fight against islamic terrorism a war --- their entire philosophy of the unitary executive resided in the powers granted to the commander in chief in wartime. They needed a war. Obama does not. If they are going to continue to kidnap and capture suspects off the streets of countries which the US has no extradition agreements, which everyone seems to think is a-ok, they are going to have to bring them to the United States and try them or turn them over to the Hague to be tried there. Taking them to a prison on a battlefield so they can be called combatants is no more legitimate than Guantanamo or any of the other illegal actions the Bush administration took in fighting the War On Terror.
The United States cannot just keep revising the notion of the rule of law and the rules of war as they go along. It's been shown that every time they do it they wind up with an unworkable, unjust system that makes the US less safe and less respected. And this is not surprising. The legal systems of western civilization have evolved over avery long time and have been tested for centuries. And they are still barely legitimate. This obviously isn't something you can just throw together on the fly to paper over cruelty, injustice and error.
Hopefully, the Obama administration is working to clean this up, but their unwillingness to open up about Bagram isn't a good sign and neither are a number of other positions they've taken in these early days. It appears that they are trying to find some compromise between those who believe that we need to adhere to constitutional principles and international law and those who want to torture and lock these people up indefinitely on mere suspicion. But injustice isn't really negotiable. Every time they validate these Bush era rulings, they take on the immoral taint as well --- as will we all. America will not get another chance to set this right.