US allows Bagram detainees to challenge detention

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Some of the 600 prisoners held at the Bagram airbase in Afghanistan will be given the right to challenge their detention, the US announced yesterday. But the filing by the Justice Department with the Washington-based US Court of Appeals does not grant detainees the right to file lawsuits in US courts. It also fails to provide Bagram detainees with the counsel of a lawyer – leading critics of the new rules to describe Bagram as "Obama's Guantánamo."

The US has been keeping terror suspects at Bagram – a former Soviet airbase north of Kabul – since 2002. Monday's filing was a response to an April ruling by US District Judge John Bates, who argued that Bagram prisoners should be allowed challenge their detention in US civilian courts.

Until now, Bagram inmates have had no access to lawyers, no right to hear the allegations held against them, and only basic reviews of their status as enemy combatants. According to Reuters, the new Pentagon rules for Bagram would assign each detainee a representative – but not a lawyer – who would help them challenge their detention.

U.S. officials would be provided to help [prisoners] gather evidence but they would still be denied access to lawyers….

Under the new rules, inmates will have their detention reviewed roughly every six months, U.S. officials said, part of efforts by the Pentagon to improve the image of its forces.

Each detainee would be assigned a U.S. military official who would have the authority to look for evidence, including witnesses and classified material, to challenge detention. Challenges would be heard by a military-appointed review board.

The Justice Department argued that Bagram detainees should not be given the same rights as detainees at Guantánamo Bay to sue in US courts because it would endanger the military mission in Afghanistan, the Associated Press reports.

The administration argued in its brief that Bagram is in an active war zone and the sovereign nation of Afghanistan, and there are sensitive diplomatic considerations involving detainees held there. That's in contrast to Cuba, which has no diplomatic relations with the United States and does not have the security implications of a war zone, the administration said.

Human-rights activists and legal experts had mixed responses to the new rules, Inter Press Service reports. In particular, they are concerned about the failure to provide legal counsel.

Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes "a step in the wrong direction".

She told Inter Press Service, "No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military's own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice."

Blogging for The New Yorker, Amy Davidson takes issue with the US government's argument that Bagram will be an important site for holding terror suspects after the closure of the facility at Guantánamo Bay.

So closing Guantánamo increases the need for a new Guantánamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantánamo because it's unfashionable—like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida – or because we actually don't like extrajudicial, indefinite detention?

Last month the American Civil Liberties Union asked the administration why President Barack Obama was not making information about Bagram detainees public, ABC News reported . The ACLU criticized the process available to Bagram prisoners to challenge their detention at that time, describing the air base as "Obama's Guantanamo."

"Bagram prisoners reportedly receive an even less robust and meaningful process for challenging their detention and designation as 'enemy combatants' than the process afforded prisoners at the U.S. Naval Base at Guantanamo Bay ('Guantanamo') - a process the U.S. Supreme Court declared unconstitutional last year," wrote Melissa Goodman, staff attorney with the ACLU's national security project. 

The Pentagon says that the new procedures that provide detainees with official representatives is a step in the right direction as it will "ultimately reduce the detainee population by ensuring that we are only holding those that are the most dangerous threats," according to Agence France-Presse.