When wars end, military detainees have to be released. Yet at the end of 2014 when President Obama has said the war in Afghanistan will “come to an end”, it is still completely unclear what will happen to the more than 60 non-Afghans held by the United States military at Bagram Airbase. Most were detained in Afghanistan, but some were rendered to Bagram by the CIA during the first Bush presidency or, in a move deemed a breach of the Geneva Conventions by the British Supreme Court, transferred from Iraq after hostilities ended there. The foreign detainees at Bagram are far less visible and have fewer rights than those at Guantanamo Bay or the Afghan detainees who were transferred to Afghan control in March 2013. Many are already in limbo – deemed not to be a threat, but still in custody. Kate Clark, AAN senior analyst, looks at who is there and what might be their fate.
“Diplomatic discussions and operational planning are underway,” the US military spokesman, Lt Col Todd Breasseale, told AAN when asked about plans for the foreign detainees held at Bagram airbase. The fact of Afghan-US discussions was confirmed by General Faruq Barakzai, head of the Afghan National Detention Facility (ANDF) on the airbase. The ANDF was transferred along with all Afghan detainees to the Afghan Ministry of Defence on 25 March 2013. With that transfer, the simmering, unhappy conflict between the US and Afghan governments over the Bagram detention centre was, for them at least, essentially resolved. The transfer left behind only the least visible and least represented – the foreign detainees, who are also known as Third Country Nationals (TCNs).(See AAN reporting on the handover here, here, here, here and here.
Who is the US still holding at Bagram?
Getting any information on the foreign detainees is extremely difficult. It was not until 2010 that the US released a list of those held (dating from 2009), following Freedom of Information Request badgering by the American Union of Civil Liberties. This ‘snap shot’ list gave only the names of the detainees, who at that time included both Afghans and foreign nationals. Citizenship and the dates, place and circumstances of capture were all redacted making the list of limited use. After another Freedom of Information Request, it was also revealed that in 2009, there were 31 foreign detainees, including 22 Pakistanis, and 532 Afghans.(1) The US military spokesman told AAN that currently, there are “less [sic] than 70” foreign detainees still at Bagram. The leap in numbers since 2009 reflects the shifting tactics of the war: the surge, and the kill or capture strategy have resulted in many more detainees, both foreign and Afghan (between 2009 and the handover this year, the number of Afghans had also shot up from 500 to 3000). There is some fluctuation in numbers: in the week before AAN interviewed the US military spokesman, they had had one fresh foreign detainee.
The information we have about the men has largely seeped out via families, who are in contact through the International Committee of the Red Cross (ICRC), and former detainees and then collated by lawyers, journalists and human rights groups. A major recent report by Justice Project Pakistan has provided a lot of new information on the situation of Pakistani detainees. It represents eleven men and has also interviewed others’ families and ex-detainees. Some names and backgrounds of those in Bagram are known and we have some sense of the nationalities of the detainees, but there is in no way a complete list of the detainees. The Justice Project Pakistan says the proportion of Pakistanis is about two thirds – roughly the same as in 2009.
Those detainees whom we can identify include three men who were rendered to Bagram by the CIA. They were among 30 or so men who were transferred to Bagram; the majority were rendered on to Guantanamo Bay or to other countries and transfers from Bagram to Guantanamo ceased in 2004 after US courts extended habeas corpus rights to detainees there. The three who are still at Bagram are listed in the Open Society Foundations study on the CIA’s post-2001 global rendition programme, ‘Globalizing Torture’. Amin Muhammad Abdallah al Bakri, a Yemeni, was detained in Bangkok in December 2010 and flown to Afghanistan where he was kept in several sites. The report says he was tortured by the CIA. It also says he has been cleared for release three times since 2010. The other two rendered men are Fadi al-Maqaleh, another Yemeni, who was initially detained in Iraq and Redha al-Najar, a Tunisian, who was detained in Pakistan in May 2002 and reportedly held in several CIA ‘black sites’ before transfer to Bagram.
Two other detainees, both Pakistanis, were rendered from Iraq to Afghanistan after the US withdrew its forces. Amanatullah Ali is, according to his lawyers, a Shia rice exporter who went regularly to Iraq for business and was captured while visiting the holy shrines. British forces captured both him and a second Pakistani, Yunis Rahmatullah (who was accused of belonging to Lashkar-e Tayeba, although the fact that he has been cleared for release from Bagram suggests this was wrong). The UK military transferred both men to the US military, which subsequently sent them to Bagram without getting or indeed seeking the UK’s agreement, thereby breaking a 2003 Memorandum of Understanding between the two countries. Lawyers for Rahmatullah took his case to the British courts and in October 2012, the Supreme Court held his transfer to Bagram and his current detention, long after hostilities in Iraq had ended, to be a prima facie violation of international law, in this case the 4th Geneva Convention (See the judgement here, a summary here, reporting here and here and Rahmatullah’s lawyer’s position here).
Both men, along with nine other Pakistanis, are represented by lawyers at the Justice Project Pakistan. Their stories – as related by their lawyers – appear innocent enough:
Abdul Haleem Saifullah dropped his father off at a hospital in Karachi in 2005 and “went to run errands” and was kidnapped by unknown people on his way home;
Amal Khan travelled to Afghanistan to find work in 2002 and got a job in a bakery; he was turned in by a co-worker for a US bounty;
Muhammad Riaz and Umran Khan came to find work in Afghanistan in 2005 and were both ‘sold’ to US forces for a bounty – both have been cleared for release and their releases were announced in October 2012;
Fazal Karim, a Karachi businessman, disappeared on a business trip to Peshawar in 2003 and spent six years in solitary confinement; he has been repeatedly cleared for release;
Awal Noor, a sixteen year old goatherd and orphan who strayed across the border into Paktika in 2006 and was wounded in a US bombing and detained;
Hamidullah Khan, a 14 year old who went to South Waziristan to get his family belongings before a Pakistani military offensive and disappeared on his way home, also repeatedly cleared for release;
Iftikhar Ahmed was working on a water boring project in Chaman and strayed across the border in 2010; he had mental health problems.
Shoaib Khan, who travelled to Afghanistan for work purposes in 2008; exact circumstances of his capture are unknown.
Some of these men are among the six Pakistani detainees whose release was announced by the Pakistan Ministry of Foreign Affairs in October 2010, but who are still at Bagram.
It is impossible to verify and difficult to judge these stories. However, reading through the far less redacted files on inmates at Guantanamo Bay (see AAN reporting here and here), one can see how evidence on men who have been captured is frequently weak, illogical, is hearsay or lacking in necessary and substantive knowledge of Afghanistan. The US decision to pay bounties for Taleban and al Qaida fighters incentivised Afghans, Pakistanis and others to turn in innocent people. Once in Bagram, it has been especially difficult for foreigners to get out – as will be seen below.
However, among the probably innocent, there are undoubtedly fighters and commanders who came to Afghanistan to wage war, although without more information about the detainees it is difficult to say much more than this. One piece of evidence pointing to senior al-Qaida fighters being held in Bagram, at least historically, was the break out in 2005 (read here). The escapees were a Kuwaiti, Omar al-Faruq, a Libyan Abu Yahya al-Libi, two of the highest-ranked al-Qaeda members ever captured, a Saudi, Muhammad Jafar Jamal al-Kahtani and a Syrian, Abdullah Al-Shami. All four are now dead or recaptured.
Out of sight, out of mind
The foreign detainees at Bagram are far less visible than their Afghan counterparts or those at Guantanamo Bay. They do not have habeas corpus rights, ie the right for their detention to have to be justified in a court of law. This is one of the oldest and most fundamental safeguards against governments practicing arbitrary detention. During wartime or emergencies, habeas rights may be derogated, but this is often controversial, as legal challenges in the US since 2001 have shown. The American courts decided it was illegal for the US state to withhold habeas rights from inmates at Guantanamo, but, after some back and forth rulings, it could withhold them from those at Bagram because of the on-going conflict in Afghanistan. However, this ruling is once again being challenged.(2) Unlike the inmates at Guantanamo, those at Bagram also have no right to legal counsel. Some families have hired lawyers, but their ‘clients’ cannot communicate with them.
The ICRC alone has access to the foreigners in Bagram and it does not discuss them except with the government. A former commissioner with the Afghan Independent Human Rights Commission told AAN they had been refused access to the foreign detainees and the UN, because it only has a mandate to assist Afghans, has not asked for access. Public advocacy and reporting by the UN and AIHRC has been absolutely crucial for improving rights and limiting abuses against Afghan security detainees at Bagram and in the NDS. This attention has been entirely lacking for the foreign detainees. Moreover, being foreign nationals, they also do not have their own political networks or means of lobbying the Afghan government to push for action, as the Afghan detainees did.
How to get out of Bagram
Deciding whether a detainee is a threat or indeed whether he meets the criteria for detention is the job of Detainee Review Boards which assess detainees in the first 60 days after arrest and then every six months. The boards have been consistently criticised by legal and human rights groups because they are entirely staffed by the military, ie the ‘defendant’ does not have legal counsel, detainees are not shown and cannot assess the evidence against them and decisions are made in private. Foreign detainees at Bagram have an even weaker chance of a fair hearing than those in Guantanamo (who have the right to legal counsel) or their Afghan counterparts, who could more easily bring witnesses to Detainee Review Boards (pre the March 2013 handover) and, since then are now either put on trial in an Afghan court or released (ie are no longer interned).
Most importantly, Afghan detainees deemed not to be a threat or not to have met the criteria for detention are speedily released. If there is prosecutable evidence, they are sent to trial. Foreign detainees, even those whom the Boards determine were erroneously detained, mis-identified, mentally ill or under-age tend to languish for years in detention, unable to get home. Getting cleared for release, said the Pakistan Justice Project, “is only the beginning of a long, politicised process.”
Before any release and transfer can take place, the nationality of the detainee must be certified and the United States and the receiving state must come to an agreement, with guarantees obtained that he will not engage in terrorism or be subject to torture or ill-treatment. Despite holding foreign detainees for more than a decade, the Pakistan Justice Project says the US has “failed to craft regular policies or strike agreements with [their] home country governments.” It accuses the Pakistani government of making political capital out of the detainees and failing to “meet its domestic and international duty to uphold the rights of its citizens in US detention [and failing] to invest the necessary political and bureaucratic capital and failed to adopt clear policies on repatriation.”
In October 2010, the Justice Project Pakistan brought a case in the Lahore High Court, seeking to compel the Pakistani government to take necessary steps to repatriate its citizens held at Bagram. Since then, the government has started to carry out the most minimal of duties; it has finally confirmed the nationality of its citizens and increased the number of consular visits to its detainees.
If it is proving difficult enough to repatriate detainees cleared for release while the US military is still in Afghanistan, as 2014 draws clear, the complications can only mount.
What will the US do with its foreign detainees after 2014?
Bagram and Guantanamo are, in Obama’s words, “legacy problems”. Earlier US policies – torture and rendition, making bounty payments, opting for its own detention programme in Afghanistan when all other troop deploying nations chose to hand detainees over to the Afghan authorities – have left the US with a mess of its own making. All this means its choices are now limited:
Release and repatriation of the detainees
– Transfer to Afghan custody and continuing internment or possible prosecution in the Afghan courts
– The US transferring the detainees out of Afghanistan
– The US military retaining detention facilities in Afghanistan after 2014
However, none of these courses of action are both legal and at the same time, for Washington, desirable. Meanwhile, time for deciding what to do with the detainees is fast melting away.
Legally, all of the men have to be released. Parties to a conflict only have the authority to detain for the duration of hostilities (although releases do not have to be immediate). This was the basis for the British Supreme Court finding that the two Pakistani detainees transferred to Bagram from Iraq after the end of hostilities there, had been transferred illegally. As Obama made clear in May 2013, the US war in Afghanistan will end in December 2014: “We will complete our transition to Afghan responsibility for security… Our troops will come home. Our combat mission will come to an end.” (3).
However, as the British Supreme Court found, ruling that something is illegal and forcing change is difficult when the culprit is the United States. Presumably, if the US wants to continue to detain some of those at Bagram after 2014, it will do so. It may find however, that the US courts are less sympathetic to continuing military detention after 2014 when it will become harder to argue that the Laws of Armed Conflict apply. Still, the US administration may argue itself some ‘wriggle room’ if a Bilateral Security Agreement (BSA) is signed with the Afghan government meaning some US combat troops remain, or it can maintain that the ‘Global War on Terror’ continues, along with its authority to detain, extra-judiciously, members of al Qaida.
What the US wants to do may well depend on the type of detainee. Those whom the military does not deem a threat, should, with guarantees that they will not be ill-treated or engage in terrorism – be repatriated relatively easy. Even here, its track record is poor and the US military and politicians have an inflated idea of what is a threat. However, it appears very reluctant to release the second category of detainee – those it deems to be a continuing threat.
Speaking about the Guantanamo detainees, Obama has said he wants to repatriate them or put them on trial in US courts wherever possible. Those considered both too dangerous to be released and un-prosecutable (for example because a judge would throw out cases where the defendant had been rendered or tortured) should, Obama said, be brought to ‘justice’, in their case in the military justice system and with detention on the mainland. It is difficult to imagine the US having the stomach to bring Guantanamo detainees to the mainland, let alone the Bagram detainees, or to bring the latter to Guantanamo, thereby adding to the much more visible ‘eyesore’ there.
That leaves only two options for those still deemed a threat: getting agreement to continue US detentions on Afghan soil after 2014 (in the context of a Bilateral Security Agreement) or handing them over to the Afghans for continuing internment or prosecution. On the US side, no-one is officially speaking about continuing US detentions. The ISAF and US military commander in Afghanistan, General Joseph Dunford, quoted in a Washington Post report in August, said they had no plan, but there was a desire (although he gave no timing) to close the facility. The US military spokesman told AAN “diplomatic discussions” were on-going in the context of transition:
In most cases, we will seek to transfer these individuals to their home countries once those countries have provided us assurances that they will take appropriate steps to mitigate the threat these individuals pose, and have provided us assurances that they will treat the transferred detainees humanely. In some cases, we may seek to have individuals prosecuted for war crimes or violations of US or Afghan law.
According to the Washington Post report, “some US officials and politicians think the “best solution” would be their continuing detention in Afghanistan, under US oversight, “possibly for decades”. It quoted Senator Lindsey Graham who was appointed by Dunford to consider solutions to the detainee dilemma: “‘They’re too dangerous to let go,’ [Graham] said….‘We’re a nation without an available jail in the war on terror, and we need to fix that.’” Congress, which has obstructed the release and prosecution of Guantanamo Bay inmates, now appears to have noticed Bagram and has sent out signals of worry over those it calls an “enduring security threat” (see AAN reporting here). This could further complicate any releases.
There is no clarity whatsoever, then, on what a favoured US option might be. Clues as to the Afghan position have come from General Barakzai, head of the Afghan detention facility at Bagram. He told AAN, “Our friends have agreed to hand over those foreign detainees to us,” but said the government does not want to take them. He pointed to the legal problems with a transfer, the “clear right” – and here Barakzai appeared to rule out continuing internment – for the foreign detainees to have their fate decided by a court and according to Afghan law. A court might be able to judge that someone had come to Afghanistan illegally, he said, but how could it decide the fate of someone rendered to Afghanistan? There would also be diplomatic problems: the government, he said, does not want to “face down other countries over their detainees.”
Transferring the men to Afghan hands would also break the principal of non-refoulement which forbids states from expelling, returning or extraditing a person to another state where there are substantial grounds for believing he would be in danger of being tortured. This principle is binding on all states and is what has made ISAF’s handover of detainees to the NDS (which practices torture) so very problematic (see reporting here (https://www.afghanistan-analysts.org/acting-on-old-news-nato-suspends-detainee-transfers-in-afghanistan).
It is difficult, but not impossible, to see the Afghan government allowing the US to keep on detaining foreigners on its soil after 2014, given President Karzai’s antipathy to US detention operations. That being said, the US holding foreigners has proved far less unpalatable to him than its holding Afghans. Moreover, sleights of hand in the Bagram handover have meant that, even now, the Afghan authorities essentially enjoy only the appearance of sovereignty, while actual control over Afghan detainees remains with the Americans (see reporting here). This willingness to compromise suggests the president might be amenable to making a deal on the foreigners, especially if incentives were included in any Bilateral Security Agreement.
In May 2013, Obama asked Americans to: “Imagine a future – ten years from now, or twenty years from now – when the United States of America is still holding people who have been charged with no crime on a piece of land that is not a part of our country.” It was a call to make difficult decisions and take action now, to deal with the “legacy problems” of the US’s war on terror, both at Bagram and Guantanamo, or face what the American president called the harsh judgement of history. In the case of Bagram, there is only a year or so left for Washington to decide what to do.
(1) The American Union of Civil Liberties managed subsequently to obtain a slightly less redacted list of detainees and in 2010, heavily redacted notes from Detainee Review Boards which gave a little more information about some of the detainees.
(2) The Justice Project Pakistan Report detailed:
In September 2006, the US District Court for the District of Columbia (DC) entertained a writ of habeas corpus on behalf of Yemeni detainee Fadi Al-Maqaleh. In 2009, Judge John D. Bates held that DFIP [Detention Facility in Parwan – the formal name for the Bagram detention facility] detainees were entitled to the same habeas corpus review as those detained in Guantanamo Bay. The decision was later overturned in May 2010 by a DC District Court of Appeal, which distinguished detentions at the DFIP on two grounds: the United States has shown no intention of permanently remaining at Bagram and the DFIP is located in an active war zone. Applying the 2010 decision of the Court of Appeal, Judge Bates dismissed the habeas petitions of the Maqaleh petitioners in October 2012. The Maqaleh petitioners have since appealed Judge Bates October 2012 decision. Lawyers for Fadi Al-Maqaleh have sought permission to visit their client at the DFIP, but were denied access by [the department of defence] upon arrival in Afghanistan.
(3) Obama also spoke about an end to the war on al Qaida:
Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.
Beyond Afghanistan, we must define our effort not as a boundless ‘global war on terror’ – but rather as a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.
This article was last updated on 9 Mar 2020