The U.S. run prison on Bagram Air Base, and the abuses that took place there, have been a lightning rod for international and domestic criticism of U.S. detention policy. Over the past year, the U.S. military has set out to disarm its critics. While still banning defense lawyers from Bagram and using classified evidence that detainees can't challenge, it has built a new facility that is more humane and put in place better ways to determine who should be detained and who should be released.
In sharp contrast to this progress, it is rumored that the Obama administration wants to resurrect President Bush's practice of rendering terrorists from around the world to its Bagram detention facility, where, conveniently, the Obama administration has claimed the protections of the U.S. Constitution do not reach. As General Petraeus takes over command, he should make clear to Washington that this is bad for the United States and for Afghanistan.
Not only does this proposal turn back the hands of time on U.S. detention policy, but the Afghan government will be seen as a U.S. lackey for allowing the Obama administration to extract people from around the world and dump them at Bagram under U.S., not Afghan, custody. And at a time when the U.S. wants applause from its coalition partners on its detention reforms, rendering non-Afghans to Bagram would surely raise their eyebrows.
The Bagram "solution" supposedly addresses a scenario in which the U.S. government detains a person who is too hard to prosecute yet too dangerous to release. Proponents of the proposal say that in countries such as Yemen or Somalia it is difficult for U.S. officials to collect evidence that can be submitted to U.S. courts. They also say it hampers intelligence gathering when detainees have defense attorneys. Instead, they claim a place like Bagram is needed where the military doesn't have to be concerned about rules of evidence and the eventual prosecution of terrorist suspects.
The scenario is smoke and mirrors. The United States is already effective at collecting evidence and prosecuting terrorists in high-risk and chaotic environments. As we've seen in the 1998 embassy bombings in Kenya and Tanzania, the FBI is able to detain terrorists and collect evidence that allows courts to convict. More recently, the cases of the Times Square and "underwear" bombers demonstrate that the FBI can also gather actionable intelligence without obfuscating the constitution. Military operations can, and often do, collect and submit evidence to U.S. courts, such as computer hard-drives, explosives, and forensic evidence.
Sending detainees to Bagram is more than unnecessary; it's harmful. While in the short term it may be easier to detain someone on flimsy or secret evidence and ship him off to Bagram, this approach makes it impossible to prosecute and convict a terrorist suspect. Instead, a mass murderer held at Bagram would never be tried or proven guilty; the military would review the detainee's status every six months, and the military may have to release him if he is no longer a threat to the United States. Justice would not be served.
Bringing foreign captives to Afghanistan could also jeopardize one of the most advantageous policy reforms that the U.S. military has undertaken in Afghanistan.
The U.S. military is pursuing a multimillion dollar plan to hand Afghans control of the brand new Detention Facility in Parwan (DFIP) that currently has the capacity to hold over 1,000 detainees and is located on Bagram Air Base. The transfer plan was a breakthrough in U.S. war strategy. It aims to get the U.S. out of the detention business, which could significantly curb Afghan criticisms about U.S. military operations. The transfer also requires that the Afghan government gets serious about reforming its justice system.
All of this could be called into question if the Afghan government refuses to operate a facility that holds people who it doesn't want to be there. For years, Kabul has adamantly resisted U.S. requests to bring non-Afghan nationals onto Afghan soil, and for good reason. Holding nationals from other countries on their territory, especially when the U.S. government refuses consular visits, brings with it serious diplomatic complications and international criticism that Afghanistan doesn't want to shoulder.
Media reports suggest that the U.S. government may reserve a U.S.-controlled section of DFIP for detainees it captures abroad, so that their detention is not an Afghan problem. This may not be enough to assuage Afghan concerns, and it's in Afghanistan's self-interest to object. No matter how you spin it, Afghanistan will still be seen as a co-conspirator in this plan.
On May 21, an appellate court denied three non-Afghan detainees held at the DFIP the writ of habeas corpus. The decision, although seen as a win for the Obama administration, flagged a major problem with the new plan for Bagram. The plan calls for capturing individuals outside Afghanistan and transferring them to Bagram as a way to avoid the requirements of the U.S. constitution. Appellate judges noted that this behavior would raise legitimate and sincere legal concerns.
Instead of going through years of litigation, the Obama administration should not implement a policy that damages both Afghanistan and the United States' commitment to rule of law; history shows that the United States can overcome these challenges of terrorism.