On his second day in office, President Barack Obama ordered Guantanamo Bay Prison closed by January of 2010. Since then, the administration has struggled to meet its self-imposed deadline -- Congress has blocked the administration from releasing cleared detainees into the United States, and only recently agreed to allow Guantanamo detainees to be brought to U.S. soil for trial. Several administration officials have admitted publicly that it is unlikely Guantanamo Bay prison will be closed by January. Despite Congress' apprehension over closing Guantanamo, a consensus has emerged among military officials and human rights activists: that the prison, which has become the symbol of U.S. human rights abuses and lack of due process, harms the our image abroad. Former President George W. Bush, General David Petraeus, and Senator John McCain have all called for it to be closed.
With Congress refusing to resettle cleared detainees in the United States, and Republicans like Pete Hoekstra fighting any effort to create a prison facility on U.S. soil to house those the administration does not want to release or transfer, the White House has been left with few options. Other countries have been reluctant to take detainees when the United States itself has been willing to take none.
As the January deadline approaches, a rift has emerged on the left over exactly how to facilitate Guantanamo Bay's closure. On Tuesday, the Center for American Progress, an organization with close ties to the administration, released a report recommending that the administration send Guantanamo Bay detainees who were captured in Afghanistan and have lost their habeas petitions to Bagram prison in Afghanistan, which would help the administration empty Guantanamo Bay sooner rather than later. The report recommends setting July 2010 as a new deadline for the facility's closure.
"Lawful military detention is appropriate in certain circumstances," says Ken Gude, the author of the report. "There are a small number of individuals who would very likely return to the fight … I'm talking about enemy fighters who were captured in a zone of active combat or fleeing the battlefield."
The report was met with criticism from some human rights advocates, in particular lawyers who have defended clients imprisoned in Guantanamo Bay. Opponents argue that it would be more difficult for lawyers to pursue appeals, and express concern that their clients might be subject to abuse and mistreatment without legal recourse. The disagreements over the report highlight ongoing tensions on the left over the use of preventive detention -- while there is a historical precedent for preventive detention in a military context, opponents say that shifting Gitmo detainees to Bagram will only exacerbate the strategic liabilities caused by U.S detention policies.
Detainees who had lost their habeas petitions at the circuit court level could still be able to appeal the decision -- being moved to Bagram would not have the effect of denying them their right to challenge their detention, Gude claims. Under the laws of military detention, enemy soldiers can generally be held for the duration of hostilities -- critics counter that the fight against terrorism is so open-ended as to make it possible for the U.S. to hold detainees forever. Judge John Bates of the U.S. District Court ruled last April that some detainees at Bagram -- foreigners captured in a third country and then rendered to Afghanistan -- are entitled to habeas rights, but the administration is fighting the ruling.
Lawyers for Guantanamo Bay detainees have won 30 out of the 38 habeas petitions that have gone before the courts so far -- but only a few have been released because of difficulties in finding places to transfer them to. Gude estimates that most of the approximately 230 detainees remaining at Guantanamo were captured in Afghanistan, along the Afghanistan-Pakistan border, or just across the border in Pakistan, but that only a small number are actually enemy fighters. Once the administration has finished sorting out those who would be tried by federal courts or military commissions, or released through habeas proceedings, the actual number who might be transferred to Bagram would be quite small, Gude claims.
Critics say that small number is already too many. "If the idea is winning the hearts and minds of the Afghans, continuing operations at Bagram will only serve to undermine our efforts," says Eric Montalvo, a former marine who represented former Guantanamo Bay detainee and Afghan national Mohammed Jawad in his military commissions trial. "Bagram is analogous to Abu Ghraib right now."
Bagram certainly has a troubled reputation. In 2002, then-Secretary of Defense Donald Rumsfeld authorized the use of so-called "harsh" interrogation techniques by the military. A 2004 report from Human Rights Watch concluded that many Bagram detainees were the victims of bounty hunters seeking the cash rewards offered by the United States. Former Bagram detainees allege they were subject to abuses, including sleep deprivation, forced nudity, stress positions, and beatings. The deaths of at least two Afghans at Bagram -- Dilawar and Mullah Habibullah -- have been ruled homicides by U.S. military doctors. In 2005, Bush signed the Detainee Treatment Act, which restricts military interrogations to the non-abusive techniques in the U.S. Army Field Manual, but human rights groups and lawyers representing detainees at Bagram have not been given access to the facility.
Human Rights First released a report on Bagram last week praising some of the changes the Obama administration had made to the detainee review boards used to determine whether detainees should be held, and echoed General Stanley McChrystal’s recommendation that more responsibility be shifted to the Afghan government. However, the report also said that the administration didn't go far enough in ensuring due process for detainees and advised allowing human rights groups access to the facility itself. The report cited General McChrystal's observation that detainee operations in Afghanistan had the potential to become a "strategic liability" if not properly handled.
"Our position is that detainees should be charged or released," says Stacy Sullivan, a counterterrorism expert with Human Rights Watch. "Gitmo as geography is not the problem. It's what's being done there that is the problem. Moving detainees to Bagram does not solve the problem."
But Gude says part of the point of transferring those detainees to Bagram would be to facilitate some of those changes. "It could heighten the sensitivity that the administration and the military has to make sure they actually go above and beyond what is considered the baseline treatment of detainee treatment in a combat zone, and to make sure that the detention system at Bagram is as functional and legitimate as possible," Gude says.
Deborah Pearlstein, a national security expert at Princeton University, called the report a "useful contribution" and said that the "critical question" was ultimately "whether such transfers could be tied to meaningful reform in detention operations in Afghanistan."
Jonathan Hafetz, a lawyer with the ACLU who has represented several suspected terror detainees, says that the plight of Gitmo detainees is unique because of the circumstances they've been held under. "After nearly eight years of being held in a lawless detention system, they should be charged in federal court -- a 200 year-old system with real rules, real safeguards, and real credibility -- or released and returned to their home country," Hafetz says. He added, "[i]f a detainee cannot be returned to his home country because, for example, of fear of torture, he should repatriated to another country where he will be safe, including possibly release into the United States."
Gude said he was sympathetic to the issue of client access but that the real issue was that many of the detainees' lawyers disagree in principle with the use of military detention for suspected terrorists. "The biggest issue is likely the continuation of some form of military detention, which many of the attorneys reject," Gude says. Addressing the issue of client access for ongoing habeas appeals, Gude argued that "preparing an appeal requires much less direct access than preparing an original case."
Not all lawyers currently representing Guantanamo Bay detainees are opposed to the idea of transferring a small number of eligible detainees to Bagram. David J. Cynamon, who represents four Kuwaitis currently held at Gitmo, said that transferring battlefield detainees to Guantanamo who have had a chance to challenge their detention was a "limited and logical proposal."
Montalvo however, says Bagram is a lost cause. "Bagram is bad for us," Montalvo says. "If we were going to close a place it should be Bagram before Guantanamo."