The New Bagram: Has Anything Changed?

Last weekend, the United States unveiled its new state of the art detention facility to journalists, diplomats, Afghan officials, and nongovernmental organizations. After participating in the tour, I give the new facility a "vastly improved" grade compared to the Bagram Theater Internment Facility (BTIF), but U.S. detention policy has a long way to go before reaching "satisfactory."

It's clear that the authorities looked back at lessons learned from eight years of blunders and abuse in designing the new lock-up facility. However, since the detainees have not yet been transferred, the reality of the new facility is still unknown.

How will the guards and interrogators behave towards the detainees? Will the United States grant human rights groups access to the facility once the detainees arrive? Will the new Detainee Review Boards, charged with determining if someone should be released or not, be accurate and fair?

2009-11-20-DSCF0086.jpg A communal cell in one of four detainee housing units at the new facility in Parwan. (Jonathan Horowitz)

Interviews I've conducted with former Bagram detainees indicate that these issues are of greatest importance, not the facility itself.

Also, a new facility does not tell us about the treatment of detainees at the point of capture. That is when Afghans allege that most physical violence and unnecessary destruction of property takes place.

As a Human Rights First report reveals, although the United States has improved the procedures previously in place at Bagram, those new policies closely resemble the discredited policies of the Cuba-based detention facility. Given the history at Guantanamo Bay, it's not hard to predict disaster -- unless U.S. detention authorities address the pitfalls immediately.

Similar to Guantanamo Bay, the new Bagram procedures deny access to lawyers, but grant them personal representatives and allow detainees to call witnesses. Yet this process failed when it was used in Guantanamo.

2009-11-20-DSCF0087.jpg A communal cell in one of four detainee housing units at the new facility in Parwan.

A Seton Hall study found that in 78 percent of Guantanamo cases reviewed, the personal representative met with the detainee only once; and in 79 percent of the cases the personal representative meet with the detainee only a week before the hearing. This certainly did not provide anyone with a meaningful defense. The study also showed that very few witnesses were allowed to appear, effectively nullifying the right to call witnesses.

While additional improvements to the facility are still needed, there is evidence of a desire to improve detention conditions. The isolation cells contain toilets, which limit forced extractions and humiliating searches each time a detainee has to go to the bathroom. The metal meshed observer walk-ways above the 20 person communal caged cells have mats on them to reduce the noise of patrolling guards.

It is also a positive step that Secretary of Defense Gates created a new high-level task force--Joint Task Force 435--dedicated to improving detention policy in Afghanistan and ensuring that the new procedures are implemented.

2009-11-20-DSCF0089.jpg Showering facilities in one of four detainee housing units at the new facility in Parwan.

However, the United States must continue to reform its detention policy in Afghanistan; additional steps must be taken to increase transparency, legitimacy, and accuracy.

  • The United States should open its detention facilities to independent human rights observers, such as the Afghanistan Independent Human Rights Commission. This was never done at BTIF or Guantanamo Bay. Afghan groups have been lobbying for this with a unified voice, and it is time for the United States to heed their calls.
  • The United States should invite Afghan officials and civil society actors to provide input on detention policy reforms. This will help enhance the legitimacy of any future policies in the eyes of Afghans, and make sure that local concerns are taken into account.
  • Placing Afghan judges on the Detainee Review Boards and giving detainees access to lawyers, instead of personal representatives, would also improve the accuracy and credibility of U.S. detention operations. The United States must guarantee that sufficient resources and expertise will be deployed to review evidence and seek out witnesses connected to detainee cases. Bagram regulations should also explicitly ban the use of coerced evidence at Detainee Review Board proceedings.
  • The United States also needs to improve its collection, corroboration, and analysis of information used to determine who it captures and detains. To do this, U.S. soldiers need to be better trained and equipped to gather more conclusive forms of evidence. Reliance on joint operations and intelligence sharing with the Afghan government should increase. And, reliance on malicious informants and poorly qualified interpreters at points of capture and interrogations must end.
  • The United States, with the help of the international community, needs to find more effective ways to successfully train Afghan lawyers, judges, and Afghan National Security Forces to respect the rule of law and the rights of detainees. The United States will only considering handing detention operations over to the Afghans if it trusts their justice system. Specific focus should be placed on reforming the practices of national security prosecutors operating under the Office of the Attorney General and engaging in rule of law reforms within the National Directorate of Security.

The first detainees are supposed to be transferred from the old Bagram facility to the new one by the end of the year. Soon, we will know if U.S. detention policy in Afghanistan has really changed or if it is more of the same.