Bagram Prison, the U.S.-Afghani Detainee Agreements, and Int’l Law

The New York Times carried a detailed piece on the U.S. detention policy in Afghanistan on Monday, January 7, 2007. It is an excellent overview on the prison, but the information provided in the piece gives rise to a number of international law issues that are not explicitly discussed or acknowledged in the article itself. I first review the salient facts, and then turn to the issues.

The facts

It reviewed the history of Bagram Prison and the extent to which it was in many respects worse than the facility in Guantanamo Bay. There are over 600 detainees being held there, most of whom have not been charged with any offence or been subject to any legal proceeding. Some have been held without charge for more than five years. The average detention is over 14 months long. Moreover, while U.S. authorities claim that all detainees are to be processed and “registered” within fourteen days of admission, and thus accessible to the International Red Cross when it visits, they also conceded that there were exceptions. An IRC confidential report, according to administration sources, claims that it has been denied access to a “warren of isolation cells” in the Bagram facility.

But what is more striking from the article is the account of how the U.S. Defence Department officials applied pressure on the Karzai administration to establish a regime of indefinite detention of “enemy combatants” along the lines of the so-called legal framework of Guantanamo Bay. President Karzai refused to sign the decree drafted with U.S. assistance to authorize and establish the regime.

A 2005 agreement to transfer the bulk of detainees to Afghanistan was the basis for a more detailed plan of transfer, as outlined in an exchange of diplomatic notes. The notes reflect that the U.S. sought to have the Afghanistan government share any intelligence obtained from detainees, to “utilize all methods appropriate and permissible under Afghan law to surveil or monitor their activities following any release,” and “confiscate or deny passports and take measures to prevent each national from travelling outside Afghanistan.”

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Water-boarding Not Torture Because the Government Did It?

The article “Nominee’s Stand May Avoid Tangle of Torture Cases” (New York Times, Nov. 1) seems to suggest that Mr. Mukasey’s reticence on the issue of water-boarding is prudent and reasonable. But the logic of the political explanations for the nominee’s position is actually deeply disturbing. MukaseyReduced to its essentials, it is this: “It would be bad for the President or his agents to be found to have engaged in criminal behavior, thus we will not define as criminal such actions that the President’s agents may have undertaken, or which he may have directed.” It would be no different, in terms of the form of argument, from saying “to the extent that the President’s agents may have decapitated American civilians, and that homicide is illegal, I am not prepared to say that decapitation is homicide”. It almost boils down to Richard Nixon’s infamous comment that if the President did it, it can’t be illegal. When the Attorney General will not even lay the case of possible executive wrongdoing before a court to decide, this country will be well on its way to sacrificing both the rule of law and the constitutional division of powers in the name of national security. (Submitted as a letter to the editor, New York Times)