Rights & Freedoms

The ‘Other Guantanamo’ (10): Bagram closing: Lawyers worried about ‘ghost detainees’ (an update)


Afghan detainees released, publicly, from Bagram in August 2013. Foreign detainees are detained and released in secret (hence no photo). Photo: ToloNews

Pakistani lawyers have told AAN they fear that when the United States closes its detention facility at Bagram at the end of the year, there may still be ‘ghost detainees’, men whose names, identities – and fate – remains unknown to the outside world. Since the earliest days of the war, the United States has been tight-lipped about those it detains at Bagram. That continuing secrecy means that, even as the US has repatriated dozens of detainees in the last year and prepares to end detentions in Afghanistan completely, suspicion still clouds its intentions of what it will do with those still left. AAN’s Kate Clark reports.

This is an update of an earlier dispatch “Bagram prison to close with BSA: 13 foreign detainees left – what to do with the rest?” published on 2 October. Details – where possible to collate – of all current and recently released detainees, including those mentioned in this dispatch, can be found there. 

39 Pakistanis have been repatriated from Bagram in the last year, part of a US drive to reduce the detainee population ahead of 31 December 2014, when its combat mission in Afghanistan ends, along with its legal authority to detain under the Laws of Armed Conflict. This could also, of course, affect the legality of the detention of the 11 Afghans still remaining at Guantanamo Bay – which, if they remain detained into 2015, would likely be challenged in the American courts. The imminent closure of the Bagram detention facility, which was clearly mandated in the recently-signed US-Afghan Bilateral Security Agreement, has meant the US has had to find options other than internment in Afghanistan for dealing with the detainees.

Altogether, in the last year, the US has repatriated at least 49 detainees. After its first batch of Pakistani repatriations – six men in November 2013 – the campaigning lawyers’ organisation, Justice Project Pakistan, which represents some of the Bagram detainees, said it failed to inform the families or the International Committee of the Red Cross, while the government in Islamabad failed to inform the Pakistani courts, despite the fact that the Bagram detainees were the subject of litigation against the government. It said it was only through a fluke that it learned the men had been repatriated at all. Since then, there has been greater openness, with the Pakistan government disclosing all the names of those transferred from Bagram. That changed again with the last repatriation – 14 men on 20 September. “The Pakistan government has not even notified the names of those repatriated,” Mariam al-Haq, director of the Justice Project Pakistan told AAN. “It is holding them incommunicado at undisclosed locations across the country.”

Different lists of the names of the 14 men were given to the Pakistani media (here and here), adding up to an impossible total of 19. Further muddying the waters, the media also reported that some of the men had come from Guantanamo Bay via Bagram. A US military spokesman, however, told AAN this had not been the case; the detainee population in Guantanamo, he said, remains at 149.

The Pakistan Justice Project had already gone to the courts to demand its government fully disclose the identities of all those Pakistanis still held at Bagram and provide information and access to the 23 men who were repatriated in August and September. It is concerned that those who are now held incommunicado by the Pakistani state may be subject to human rights abuses. It also wants to ensure all Pakistani nationals still at Bagram are known about and accounted for and cannot end up as ‘ghost detainees’ at the end of the year. The same concerns would apply to the other nationalities, of course.

Trying to count the uncountable

The cause of its suspicion is the continuing secrecy over Bagram by both the US and Pakistani governments. In 2012, the Pakistani government was ordered by the courts to release a list of Pakistani detainees held at Bagram. It released another list in August 2014 (23 names which it sourced to the US embassy in Islamabad). Not all the names released to the media of the recent repatriations appeared on this list, further confusing matters. Moreover, it has given no other identifying details, such as father’s name, place of birth, or, most useful of all, Internment Identity Numbers (officially called ISNs). Not providing such basic information about the detainees at Bagram – whether Pakistanis or other nationalities – is typical. Unlike detainees in Guantanamo, the US military has been able to keep the identities of those it holds secret after the US courts denied the Bagram detainees habeas corpus rights, ie the right to have their detention justified in a court of law. AAN recently put together a list, based on various sources – a leaked NATO report, lawyers’ cases, human rights research, media reports and US statements (1) – of those we think are still being detained and those who have been recently released. However, because of holes in the data, it is not completely reliable.

Those who have been released in the last year include men who had been cleared for release years earlier, the mentally ill, under-aged and, according to the British Supreme Court, two men whose rendition to Bagram was a violation of the Geneva Conventions. They almost undoubtedly also included men who had come to fight Afghan and international forces. Given the secrecy, it is very difficult to be sure.

Those still being detained probably include German-Moroccan Muhammad Abdulawi and Egyptian Abu Ikhlas al-Masri, both allegedly captured fighting with al-Qaida in 2011 and 2012 respectively, and a Russian, Irek Hamidullan (as named by US officials) or Khamidullin (as named by the Russian press) who was picked up after being wounded in an attack on an Afghan border post in 2009. There is also an un-named Jordanian and two Tunisians; one is also un-named, while the other, Redha al-Najar, is believed to have been detained in Karachi in 2002 and rendered by the CIA to various black sites before arriving in Bagram. As to remaining Pakistanis – the Pakistan Justice Project has calculated there should be at least four or five still at Bagram – it is impossible to identify them because of the secrecy over the recent repatriations. (2)

The US military spokesman has told AAN there are currently 13 detainees (of all nationalities) still being held, down from, according to another spokesman a year ago, “less than 70.” Since then, we know of the transfers of ten non-Pakistanis (two Yemenis, two Saudis, a Palestinian, three men each to France, Kuwait and Kazakhstan and two ‘Pakistanis’ who were reassigned as Afghans and transferred to the Afghan authorities) and 39 Pakistanis. As is normal when trying to count Bagram detainees, the numbers only just about add up: 49 men known to have been transferred and 13 still in detention from a population of fewer than 70, a year ago.

Ghost detainees?

Ahead of 31 December 2014, the US has to deal with its remaining detainees, through repatriation to a home or third country, if the US is satisfied there is no risk of torture or a ‘return to terrorism’, or trial – the US has mentioned this as a possibility in connection with the Russian, Hamidullan – or continued internment elsewhere. US officials have recently said both that transfer to Guantanamo is an option and that it is not. Confusion therefore still surrounds both questions: who is still at Bagram and what might be their fate. Until there is full disclosure of who is there, suspicions will persist of US intentions and of the possibility of ‘ghost detainees’ being transferred elsewhere when Bagram closes.

(1) The leaked ISAF report, The State of the Taliban, can be read on The New York Times website although (complying with the military’s request?) the paper blacked out the identities of the detainees quoted. AAN obtained a non-redacted copy at the time and also wrote about the leaked report itself. An Open Societies Foundations’ 2012 study ‘Globalizing Torture’, on the CIA’s post-2001 global rendition programme, is another good source, as is the work of the investigative reporter, Andy Worthington, who annotated the list of detainees held in February 2009 which was released after a court order, following a Freedom of Information request.

(2) See AAN’s most recent dispatch, cited at the start of this dispatch, for an attempt to determine which Pakistanis may still be held.

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Thematic Category: Rights & Freedoms