The recent ruling that detainees at Bagram who had been captured outside the United States had no right of access to U.S. courts to challenge their detention was a textbook example of moral hazard -- the temptation to use Bagram as a new clearinghouse for detainees trapped in a legal black hole would be nigh-irresistible for an administration struggling to find a place to put new suspected terror detainees, even thought the ruling itself specifically hinged on the idea that the government was not deliberately trying to avoid judicial review by placing them there.
The LA Times reports that the administration is considering using Bagram as a Gitmo-like legal black hole even after it turns over control of the prison to the Afghan government:
If Afghan officials agree, it would give the administration a place to interrogate terrorism suspects captured in countries such as Somalia or Yemen. President Obama made a high-profile pledge to close the prison at Guantanamo Bay, Cuba, after taking office last year. But that would leave the administration without a lockup for those suspected of plotting attacks against the United States.
Marcy Wheeler is now calling Bagram the "U.S. prison colony" in Afghanistan:
Note all the assumptions here: that the US needs a “special” prison, distinct from the prisons where the US is already holding and questioning terrorist detainees like the undie-bomber and Faisal Shahzad. That, in turn, suggests both that they envision questioning people who might not meet US standards for arrest and that they may not want to give these detainees any rights.
This is gaming the system. The recent ruling decided that the detainees had no right to challenge their detention based on three criteria: Bagram is in a war-zone, it's not under complete U.S. control like Gitmo, and the detainees were transferred there before the Boumediene ruling that extended habeas rights to Gitmo detainees, so they couldn't have been doing so deliberately to avoid judicial review.
This arrangement would mean the government was doing exactly that. In doing so, it opens itself up to a court challenge--the ruling specifically noted that "such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present." The Obama administration has won a lot of detainee related cases recently, so maybe they're getting cocky--but that caveat suggests that it's very possible they might lose a case in which a detainee captured in a third country was sent to Bagram to avoid the reach of U.S. courts. If they do try to do this, it won't be a walk in the park.
I haven't even discussed the strategic implications of having a brand new Gitmo in war-torn Afghanistan. In his strategy review last year, General Stanley McChrystal specifically singled out detention operations as an area that presented "a risk to the mission" and recommended turning over authority to the Afghans. You think Gitmo damaged the U.S. reputation? Consider how the Muslim world would react to the U.S. having a Gitmo in a Muslim country, and what that does to the already nonexistent legitimacy of the current Afghan government.
-- A. Serwer
