DETAINING suspected terrorists became a significant part of US global counterterrorism operations after 9/11. But as the US ends its combat mission in Afghanistan, the influence and limits of its detention and interrogation authority has come under scrutiny.
This was to be expected given the indefinite detentions at Guantanamo Bay in Cuba and Bagram prison in Afghanistan; the torture of suspected terrorists at CIA-run secret prisons from Egypt to Poland; and ‘renditions’ or the use of proxy detentions involving detainee transfers from one country to another with the risk of inhumane treatment.
Renditions that involve countries detaining prisoners at the behest of another state violate the Geneva Conventions prohibiting torture and degrading treatment.
Despite Obama’s promise in May to close Guantanamo and transfer detainees to their home countries, the facility holds 166 prisoners, with many on hunger strike. Congressional restrictions on detainee transfer including a ban on prosecutions in the US makes it harder to shut down the facility.
However, Guantanamo isn’t the only controversial prison in America’s war on terror. In September 2012, the lesser known Bagram Theatre Internment Facility in Afghanistan had 3,000 detainees — in 2008 it had 630.
As the drawdown in Afghanistan begins, there is concern that detainees risk indefinite detention. How will the drawdown impact America’s legal authority over non-Afghan detainees at Bagram? American courts have no jurisdiction over Bagram because they argue that it is an active theatre of war and the US will not remain permanently at Bagram.
Where British courts are concerned, their decision is not binding on the US government; and Bagram is out of the jurisdiction of the European Court of Human Rights because it is not in the territory of a member state of the Council of Europe.
Assessing efforts to end indefinite detentions, the Justice Project Pakistan (JPP) in its report, Closing Bagram, the Other Guantanamo focuses on the repatriation of Pakistani citizens from US detention, explaining that although the US military has handed custody of Afghan detainees to the Afghan authorities in March this year, it continues to hold more than 60 non-Afghan detainees or third-country nationals “in indefinite detention without charge, trial, or access to a lawyer”.
According to the Pentagon, detainees can be held indefinitely under the laws of war which also applies to Guantanamo. They can be held until the end of hostilities in the war against Al Qaeda which in Afghanistan could last for years. They cannot be released or prosecuted by Afghan authorities — the only options are transferring them to their home countries, rehabilitation, prosecution or continued detention.
But legal experts explain that international law is clear the detainees must be released once hostilities have ended.
The numbers of non-Afghan detainees have increased from 50 in September 2012 to 66 in June 2013 with 40 being Pakistani, according to JJP sources. Based on information provided by former detainees and WikiLeaks, around 15 Pakistani prisoners have been released. Many remain in detention since 2002; others cleared for release in 2010 have not been sent home because Pakistan and the US have failed to negotiate their repatriation as issues of humane treatment upon return and security assurances are undecided.
Families wait in limbo for news, blaming the government for providing detainees with no legal assistance and the US government for incarceration without charge or trial. Stories of extreme poverty in the absence of main earners and mental anguish are not unusual.
When his young son disappeared in 2008, Gul Mohammad travelled to South Waziristan and Peshawar and even crossed the border into Khost to look for him. Then, a year later, the ICRC informed him that Kaleem was at Bagram.
Flaws in American capture and detention mechanisms undermined the accuracy of threat assessments, notes the JJP report, quoting the case of a former Pakistani detainee actually captured by militants and later detained by US forces when they raided the compound where he was being held. Many Pakistani prisoners were also wrongly captured with the use of bounty payments.
When detainees are evaluated by detainee review boards (DRB) staffed by US military officers, there is reliance on circumstantial evidence. Detainees cannot challenge classified evidence which is not shared with them, including hearsay evidence gathered by US informants and intelligence files.
Pakistani government representatives refuse to participate in DRB hearings to provide information on detainees which could help in their transfers. The government must confirm a detainee’s nationality to prove that the government in question is the right interlocutor but that has rarely occurred.
Although lawyers representing detainees cannot speak to their clients — unlike Guantanamo prisoners with legal access — former prisoners have talked of ill treatment by interrogators. Some were detained at secondary locations before being transferred to Bagram. Former detainees say they have been beaten, have had dogs released on them and loud music blasted in their ears besides being exposed to extreme temperatures and given inadequate food.
In January 2010, the Lahore High Court pressured the government to talk to the US but ad hoc measures have proven ineffective. It was high-level engagement in 2004 between the US and Pakistani governments that resulted in the repatriation of 63 Pakistanis from Guantanamo.
If the government is waiting until America withdraws its troops, so that detainees are sent back without the US requesting assurances to allay fears of recidivism that would signal a politicisation of the repatriation policy and a lapse of moral responsibility.
There are indications that the US could continue to hold third-country nationals beyond 2014 by inserting new conditions into the Bilateral Security Arrangement being negotiated with the Afghan government or even worse transfer detainees from Bagram to another black hole, if pressured to relinquish authority of the Afghan prison.
The writer is senior assistant editor at the Herald.