In the hope of making the list more readily accessible — and searchable — than it is through a poorly photocopied Pentagon document, I reproduce it as a separate web page here, with commentary on some the prisoners I have been able to identify. This is very much a work-in-progress, of course, as the state of knowledge regarding Bagram is akin to that regarding Guantánamo back in 2005, before the prisoner lists and 8,000 pages of documents were released that allowed me to research and write my book The Guantánamo Files, and to begin a new career as a full-time journalist on Guantánamo and related issues.

In an article accompanying this post, “Dark Revelations in the Bagram Prisoner List,” I examined what the list — which contains only the prisoners’ names, and not their nationalities or the date and place of their capture — revealed about the small number of foreign prisoners rendered to Bagram from other countries, three of whom are currently waiting to see if the Court of Appeals will overturn the right to habeas corpus that was granted to them by Judge John D. Bates last March, and raised questions about the whereabouts of other known “ghost prisoners” who do not appear to have been included on the list.

In an article to follow, I’ll examine how the list reveals not only that around 3,000 prisoners have been held at Bagram in the last six years, but also how the majority of the prisoners listed were seized in 2008 and 2009 — and I’ll examine what this means with regard to the US administration’s detention policies and the Geneva Conventions, which were discarded by George W. Bush and have clearly not been reintroduced by Barack Obama.

Although I believe that I have had some success tracking down the stories of some of the 100 or so prisoners on the list who have been held at Bagram for between three and seven years, I have found few clues as to the identities of the majority of those listed, who, as mentioned above, were seized in the last two years. Most reports — by the US military or the media — of raids or skirmishes that led to the capture of those held have not furnished the names of those seized, and on the rare occasion that names have been provided it has tended to be because they are regarded as significant figures.

I have no idea whether the allegations against these men are true, but, more importantly, I have not failed to notice that the majority of the prisoners (often men identified by only one name) are clearly not significant figures at all, and my fear — which, I have no doubt, will be confirmed when more information emerges — is that many of them will be revealed to be victims of the same chaotic approach to the capture of prisoners that has done so much to lose the battle for the “hearts and minds” of the people of Afghanistan and Iraq for the last eight years, and which, with regard to the 218 prisoners seized in Afghanistan between 2001 and 2003 and sent to Guantánamo, I chronicled in The Guantánamo Files.

One sign that this is indeed the case was reported on NPR last August, when NPR’s Pentagon correspondent Tom Bowman explained how Maj. Gen. Doug Stone had recently been sent to Afghanistan by Gen. David Petraeus, the overall commander of Afghanistan and Iraq, because he “liked the way Stone revamped the detention centers in Iraq, how he changed them for the better.” Bowman explained that Stone “went to Afghanistan with a team, interviewed detainees, visited detention facilities,” and produced a 700-page report, in which he estimated that “as many as 400 of the 600 held at Bagram can be released,” explaining that “many of these men were swept up in raids” and “have little connection to the insurgency.”

Bowman added that Maj. Gen. Stone “wants to focus on rehabilitation, just like he did in Iraq where he ran the detention system there. He had 21,000 detainees. But he found that most of these Iraqi detainees — as many as two-thirds — were not radicals, but mostly illiterate and jobless young people. Some were innocents and others worked for the insurgency because they just needed the money. And Stone worried that detaining them was only making matters worse, actually turning them into radicals.”

As Stone explained to NPR at the time:

Now you’ve got a bunch of moderates who really shouldn’t be in there in the first place. And I can hold them forever, but eventually they’re going to say, “Why are you holding me? What’s the fairness in this?” And eventually they’ll say something about America that we don’t want to hear. They’re going to say, “Wait a minute, you’re not here to better the population, you’re here to conquer us and you’re taking me hostage.”

If you have any further information about any of the men on this list, please feel free to email me, and I will incorporate the information into the list.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Made available in response to an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) lawsuit, the list contains the names of 645 prisoners who were detained at Bagram as of September 2009.

But the government blacked out other vital information requested by the civil rights group – including prisoners’ citizenship, length of detention, country where captured, and circumstances of capture.

The government’s previous position was that the public had no right to have this information.

Melissa Goodman, staff attorney with the ACLU National Security Project, said, “Releasing the names of those held at Bagram is an important step toward transparency and accountability at the secretive Bagram prison, but it is just a first step.”

“Hundreds of people have languished at Bagram for years in horrid and abusive conditions, without even being told why they’re detained or given a fair chance to argue for release,” she said.

But she added, “The information the government continues to withhold is just as vital as the names of prisoners. Full transparency and accountability” about Bagram requires full disclosure.

“The public has long been kept in the dark about what goes on at Bagram. It is time to shine a bright light on the secretive prison,” Goodnam said.

It was not clear whether the list of names also included those held in field detention sites around the country, where some detainees are taken initially before being placed in the general detainee population.

The ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan in April 2009.

When documents were not forthcoming, the ACLU filed the FOIA lawsuit in September 2009, seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, records relating to the rules and agreements that govern the facility, and documents pertaining to the conditions of confinement and status review process afforded prisoners.

The U.S. government’s Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information has been publicly available about the secrecy-shrouded facility or the prisoners held there.

The U.S. government has been detaining a previously-unknown number of prisoners at the facility since 2002. Some have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment.

The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, in 2002, two Afghan prisoners at Bagram were fatally beaten by U.S. troops.

The U.S. military has recently built a modern new prison to take the place of the dilapidated and inefficient original unit. The U.S. is in the process of handing management of this new facility over to the Afghan authorities.

Nonetheless, there is growing public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantanamo.

Former detainees have described abusive treatment at the base, especially in the first two or three years it was in existence. But in the last several years, detainees who have been released described improved conditions.

While the majority of the detainees at Bagram are Afghan, a small number are foreigners who are accused of fighting with the Taliban. Also held there are a handful of detainees captured in other countries, according to human rights lawyers and military detention officials.

The current detainee population is about 750, according to military detention officials, but in September, when the information request was made, there were about 100 fewer detainees. The numbers have grown over the past few months because of the increased military operations by U.S. forces.

An investigation by the British Broadcasting Corporation (BBC) has revealed that former detainees at Bagram were beaten, deprived of sleep, and threatened with dogs.

Jonathan Hafetz, an attorney with the American Civil Liberties Union’s National Security Project, told us, “The BBC investigation provides further confirmation of the United States’ mistreatment of prisoners at Bagram. These abuses are the direct consequence of decisions made at the highest levels of the U.S. government to avoid the Geneva Convention and forsake the rule of law.”

The Barack Obama administration has sought to deflect some of the heat it is getting from civil rights organisations and legal experts over its management of Bagram. For example, it recently announced a set of new procedures for conducting periodic assessments of the status of each prisoner.

But, according to Tina Monshipour Foster, executive director of the International Justice Network, the only U.S. organisation actively litigating on behalf of Bagram detainees, “The ‘new’ procedures adopted by the Obama administration are not new at all, they appear to be exactly the same as the procedures created by the [George W.] Bush administration in response to prior court challenges by Guantanamo detainees.”

“The idea of assigning a non-lawyer ‘personal representative’ who does not legally represent the detainee, but works for the military, is a step in the wrong direction,” Foster said.

She told us, “Only a lawyer who is independent from the government can effectively assist a detainee with his defense against allegations being made by the government.”

The Pentagon denied the BBC’s charges of harsh treatment and insisted that all inmates in the facility are treated humanely.

Another prominent human rights organisation, the British-based Reprieve, called on the British government to take action concerning two Pakistanis who it says Britain helped render there from Iraq.

“These men were never in Afghanistan until the UK and the U.S. took them there,” Stafford Smith told us. “It is the height of hypocrisy to take someone to Bagram and then claim that it is too dangerous to let them see a lawyer. Even Guant·namo Bay is better than this.”

Since coming to office a year ago, President Obama has banned the use of torture and ordered a review of policy on detainees, which is expected to report next month. But unlike its detainees at the U.S. naval facility at Guantanamo Bay in Cuba, the prisoners at Bagram have no access to lawyers and they cannot challenge their detention.

In April 2009, in a lawsuit brought in federal court by the International Justice Network, Judge John D. Bates ruled that three Bagram prisoners – two Yemenis and one Tunisian citizen – had the right to petition U.S. courts for their release because they were not Afghans captured on the Afghan battlefield.

But he also ruled that for a fourth appellant, a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.

Judge Bates dismissed the petition of Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.

Afghan government sources have said prisoners will have a right to appeal their detentions once the U.S. transfers its authority.

Rosenberg reported that the two men “were processed by the Somaliland government and then released to rejoin their families in Hargeisa,” the capital of “the breakaway region in northern Somalia that has its own autonomous government.” She added, “The United States does not recognize the government in Somaliland and there were no official statements on how Arale and Barre arrived there. A local newspaper, the Somaliland Press, said they arrived aboard a jet provided by the International Committee of the Red Cross, suggesting that the United States had released the men to the Red Cross in a third country.”

As President Obama attempts to close Guantánamo, with the administration recently announcing its intention of purchasing a prison in Illinois to hold some of the prisoners, the release of these two men — as with the overwhelming majority of releases from Guantánamo — yet again demonstrates how hysterical and unsubstantiated are Republican claims that Guantánamo is full of hardcore terrorists, as their stories demonstrate:

Seized in Pakistan: Mohammed Sulaymon Barre

Mohammed Sulaymon Barre, who was 37 years old at the time of his capture, was one of the first men to be seized in the “War on Terror.” As I explained in my book The Guantánamo Files, he had been living in Pakistan as a UN-approved refugee since fleeing his homeland during its ruinous civil war in the early 1990s, and was seized at his home in Karachi on November 1, 2001 “by police and intelligence agents who had made two previous visits to check his papers, and who seem, therefore, to have seized him on this third occasion because they were looking for easy targets to hand over to the Americans.”

As I also explained in The Guantánamo Files:

Barre worked from his home as the Karachi agent for the Dahabshiil Company, a Somali organization with branches around the world, which provides essential money transfer operations for the Somali diaspora. According to the Americans, Dahabshiil was “closely related to al-Barakat, a Somali financial company designated as a terrorism finance facilitator,” [which had been added to a US terrorism watch list and had its assets frozen]. Barre said that he knew nothing about this allegation, pointing out that his job only involved making small transactions on behalf of Somalis living in Pakistan.

In fact, as was noted in a report in 2004 [for a UN conference on Trade and Development], the enforced US-led closure of money transfer operations with suspected links to terrorism was “disastrous for Somalia, a country with no recognized government and without a functioning state apparatus. After the international community largely washed its hands of the country following the disastrous peacekeeping foray in 1994, remittances became the inhabitants’ lifeline. With no recognized private banking system, the remittance trade was dominated by a single firm (al-Barakat).” Crucially, the report added that, although the US authorities closed down al-Barakat in 2001, labeling it “the quartermasters of terror,” only four criminal prosecutions had been filed by 2003, “and none involved charges of aiding terrorists.”

Nevertheless, the authorities at Guantánamo — operating in a bubble of terror-related allegations that largely bore no relation to the realities of the outside world — had no time for Barre’s protestations of innocence. “I am convinced that your branch of the Dahabshiil company was used to transfer money for terrorism,” the presiding officer of his tribunal at Guantánamo told Barre in 2005. “What I am trying to find out is if you think maybe there were some people that were using your company and using your branch to transfer money, or whether you were just totally not paying attention.”

A year later, as the BBC reported in August 2006, al-Barakat had been removed from the US watchlist of terrorist organizations. The report explained that al-Barakat had been included on the watchlist because US intelligence analysts thought it had been used to finance the 9/11 hijackers, but the 9/11 Commission had investigated the claim and had found it baseless. In February 2009, in a report for the Washington Post, Peter Finn noted that, in the allegations against Barre at Guantánamo, Dahabshiil’s alleged ties to al-Barakat had been dropped by 2006, although even then the taint of the allegation was not entirely removed.

In a letter to the Post, an attorney for Dahabshiil was obliged to point out that the firm has “never been the subject of any investigation in relation to alleged terrorist funding” and that it “has no involvement whatsoever with money laundering or the funding or of terrorist organizations and … places the highest importance on money laundering compliance.” As the Post noted ruefully, “Dahabshiil should have been given an opportunity to comment for the article.”

Shorn of this central allegation, it is no wonder that, as Barre’s lawyers explained in a court filing in connection with his habeas corpus petition, the allegations against him have “varied dramatically.” In 2006, for example, presumably through a false allegation coerced from some other prisoner, the authorities claimed that he was not in Pakistan in 1994 and 1995 — despite the existence of UN papers documenting his meetings in Pakistan in those years — but was actually working in Osama bin Laden’s compound in Khartoum, Sudan, an allegation so worthless that his lawyers described it as “implausible and unsubstantiated.”

According to Emi MacLean of the Center for Constitutional Rights, which represents Barre, most of his problems at Guantánamo stemmed from his opposition to the regime at prison, and his involvement in several hunger strikes. “If you were detained for seven years without charge and any fair process, you might be engaged in activities that would be considered disciplinary violations that are really protests for your detention,” she said.

The truth, as Barre himself noted at his tribunal in 2005, was that “A lot of interrogators said to me that … a lot of mistakes were made and they must be corrected. They told me many times that I am here by mistake.” Sadly, this was not enough to prevent him from suffering in Guantánamo, and also in US custody in Bagram before his transfer to Guantánamo in 2002, when, as he explained in his tribunal:

They interrogated me and one of the interrogators told me I was from al-Wafa [a Saudi charity that was also regarded with suspicion by the US authorities] and I needed to confess to that. You have no choice. I told them it wasn’t true. They pressured me. They whispered something then spoke to the guard. The guard came in, grabbed me by my neck and threw me. He took me in a bad way to isolation. All my blankets, except one, were taken from me. It was freezing cold. They didn’t feed me lunch and sometimes they didn’t feed me twice. At night it is very cold and if you don’t eat dinner it gets colder. This torture lasted fifteen to twenty days. My feet and hands were swollen. I wasn’t able to stand because I was in so much pain. I asked for treatment and an interrogator brought a nurse and asked if I wanted treatment. They told me they could cut my legs to stop the pain. They did this so I would confess to the accusations that I didn’t do. Nothing happened. After the torture ended, I met another interrogator who told me injustice was done to me and I didn’t have anything to do with this. He said he would do a report so I could go home. He told me I would be released. Suddenly, I was taken back to Kandahar and then to Cuba.

Seized in Djibouti: Ismail Mahmoud Muhammad

Unlike Mohammed Sulaymon Barre, Ismail Mahmoud Muhammad was one of the last prisoners to arrive at Guantánamo, one of just six men flown to the prison after the arrival of 14 “high-value detainees” in September 2006. Identified by the Pentagon as Abdullahi Sudi Arale, he arrived with little fanfare in June 2007, and, as I explained in an article in September 2007:

Possibly … his arrival was little trumpeted because it involved the deliberately under-reported “War on al-Qaeda” in the Horn of Africa, and because the administration had very little information to offer about him. In almost questioning terms, Arale was described as a “suspected” member of “the al-Qaeda terrorist network in East Africa,” who served as “a courier between East Africa al-Qaeda (EAAQ) and al-Qaeda in Pakistan.”

In a press release, the DoD added that, after returning to Somalia from Pakistan in September 2006, he “held a leadership role in the EAAQ-affiliated Somali Council of Islamic Courts (CIC),” and noted, with distressing vagueness, that there was “significant information available” to indicate that Arale had been “assisting various EAAQ-affiliated extremists in acquiring weapons and explosives,” that he had “facilitated terrorist travel by providing false documents for AQ and EAAQ-affiliates and foreign fighters traveling into Somalia,” and that he had “played a significant role in the re-emergence of the CIC in Mogadishu.” Unmentioned, of course, was the subtext of the situation in Somalia: the role of the CIC in returning some semblance of order to one of the world’s least-governed countries, and the US government’s use of Ethiopia as a proxy army in yet another secret, dirty war.

It took some time for the truth about the Pentagon’s “distressing vagueness” to be explained, in part because the US authorities released no further information about him, and, in two and a half years, do not appear to have conducted a Combatant Status Review Tribunal, to ascertain whether he was correctly designated as an “enemy combatant.” However, when Reprieve, the legal action charity whose lawyers represent dozens of Guantánamo prisoners, became involved, another narrative emerged, in which Muhammad not only had no connection to al-Qaeda, but was, in fact, “an English teacher and centrist political activist.”

Born in Mogadishu in 1970, Muhammad had remained in the capital throughout the civil war of the 1990s until the security situation deteriorated to such an extent that he moved north to Somaliland, establishing the first English school in the new country, and working as a journalist. In 1998, he traveled to Pakistan, where he studied English Literature at the International Islamic University, and became, as Reprieve described it, “a respected leader of the Somali community in the country.”

When his father died, he moved back to Mogadishu, “where the rule of the Union of Islamic Courts had brought relative stability to the war-torn capital,” but at the end of 2006, when, backed by the US, the Ethiopian Army invaded, he moved north one more. Opposed to the Ethiopian invasion, he was asked, “as a respected member of the community … to attend a conference in Eritrea aimed at organizing a political campaign” to ensure that the Ethiopians left.

It was while he was on his way to this conference that he was seized by local police in Djibouti, “apparently at the behest of the Americans.” Handed over to the US military, he was taken to Camp Lemonier, the US military base that played a key role in American interference in the Horn of Africa, where other prisoners have been held, possibly including an unknown number of “ghost prisoners.” There, as Reprieve explained, “he was held in a shipping container and interrogated by Americans.”

Compared to Mohammed Sulaymon Barre, Ismael Mahmoud Muhammad was fortunate that his wrongful imprisonment lasted for only two and a half years, but as the eighth anniversary of the opening of Guantánamo approaches, the release of these two men — neither of whom was cleared until the Obama administration’s inter-agency Task Force began its deliberations this year — demonstrates, yet again, that, when it comes to undoing the shameful legacy of Guantánamo, much work still remains to be done.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

The government was hoping that offering tribunals to evaluate the prisoners’ status would perform a useful public relations function, making the administration appear to be granting important rights to the 600 or so prisoners held in Bagram, and distracting attention from the real reason for its purported generosity: a 76-page brief to the Court of Appeals for the District of Columbia, submitted yesterday, in which the government attempted to claim that “Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan.”

The main reason for this brazen attempt to secure a public relations victory before the appeal was filed is blindingly obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and “rendered” to Bagram, where they have been held for up to six years, had the right to challenge the basis of their detention in US courts.

Below, I discuss the government’s position regarding these men, and explain why introducing Guantánamo-style tribunals at Bagram is no substitute for the Geneva Conventions, and at the end of the article I also ask whether the government may not have an even darker motive, related to what I perceive to be comments from administration officials revealing Bagram’s ongoing use as a secret prison for foreign suspects “rendered” from other countries.

Why bringing Guantánamo to Bagram is intended to exclude the US courts

Despite fierce opposition from Obama’s Justice Department, which clung to the line taken by the Bush administration, Judge Bates ruled in April that Boumediene v. Bush — the Supreme Court ruling last June, which granted constitutionally guaranteed habeas corpus rights to the prisoners in Guantánamo — extended to foreign prisoners “rendered” to Bagram, because “the detainees themselves as well as the rationale for detention are essentially the same.”

He added that, although Bagram is “located in an active theater of war,” and that this may pose some “practical obstacles” to a court review of their cases, these obstacles “are not as great” as the government suggested, are “not insurmountable,” and are, moreover, “largely of the Executive’s choosing,” because the prisoners were specifically transported to Bagram from other locations.

Judge Bates was undoubtedly correct, for two reasons: firstly, because, as I explained at the time, “only an administrative accident — or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo — prevented them from joining the 779 men in the offshore prison in Cuba”; and secondly, because he refused to extend habeas rights to an Afghan prisoner “rendered” to Bagram from the United Arab Emirates in 2002 — and, by extension, to the rest of the Afghans in Bagram, seized in Afghanistan, who constitute all but 30 or so of the 650 men held in the prison — primarily because he agreed with the government’s claim that to do so would cause “friction” with the Afghan government regarding negotiations about the transfer of Afghan prisoners to the custody of their own government.

Reinforcing its hopes that offering tribunals to the prisoners would deflect attention from its desire to keep holding “rendered” prisoners at Bagram indefinitely, the government included an Addendum with its brief on Monday, outlining its plans for the new tribunal system.

This is designed to replace an existing review system, which, in the words of Judge Bates, “falls well short of what the Supreme Court found inadequate at Guantánamo” in Boumediene, being both “inadequate” and “more error-prone” than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals (CSRTs) that was established at Guantánamo to review the prisoners’ cases.

Reporters have been quick to spot that the new review system — far from providing an adequate system that would, presumably, satisfy the Supreme Court — is, in fact, little more than a carbon-copy of the CSRTs, which were severely criticized by the Supreme Court in Boumediene, and which were also savaged by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on them, who explained, in a series of explosive statements in 2007, that they were designed primarily to rubberstamp the administration’s insistence that the men were “enemy combatants,” even though they had not been adequately screened on capture.

What has happened to the Geneva Conventions?

This omission of screening on capture — which has applied at Bagram ever since — came about because, under instructions from the highest levels of government, the military was obliged to shelve its plans to hold competent tribunals under Article 5 of the Geneva Conventions, despite the fact that they had been pioneered by the US, and had been used successfully in every war from Vietnam onwards. Held close to the time and place of capture, these tribunals (as opposed to the CSRTs, which mockingly echoed them), comprise three military officers, and are designed to separate combatants from civilians seized in the fog of war, in cases where it is not obvious that prisoners are combatants (when they are not wearing a uniform, for example), by allowing the men in question to call witnesses.

During the first Gulf War, around 1,200 of these tribunals were held, and in nearly three-quarters of the case, the men were found to have been wrongly detained, and were released. The failure to implement these tribunals in the “War on Terror” contributed enormously to the filling of Guantánamo with prisoners who had no connections to any form of militancy whatsoever, and these initial errors were not redressed when a skewed version of the tribunals — the CSRT system — was introduced two and half years later.

As a result, plans to introduce Guantánamo-style tribunals to Bagram — in which prisoners are assigned military representatives instead of lawyers, and may call witnesses and present evidence if “reasonably available” — may be an improvement on the existing system of Unlawful Enemy Combatant Review Boards at Bagram — in which the prisoners have no representation whatsoever, and are only allowed to make a statement before they hear the evidence against them — but it fails to take into account the fact that non-uniformed prisoners seized in wartime, like those at Bagram, should, under the terms of the Geneva Conventions, be given competent tribunals on capture, and then, if found to be combatants, held unmolested until the end of hostilities.

Despite being addressed in the DoD’s new proposals, these concerns are not mitigated by the fact that, according to these plans, new prisoners will be subjected, on capture, to cursory reviews by “the capturing unit commander” and by the commander of Bagram to ascertain that they “meet the criteria for detention,” and the problem is underlined by the DoD’s insistence that it is not merely holding prisoners “consistent with the laws and customs of war,” but also holding those who fulfill the criteria laid down in the Authorization for Use of Military Force (the founding document of the “War on Terror,” approved by Congress within days of the 9/11 attacks), which authorized the President to detain those who “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001,” or those who supported them.

So is Bagram Obama’s new secret prison?

However, while this is a genuinely disturbing development, because it suggests that the Obama administration is essentially following President Bush’s lead by unilaterally rewriting the Conventions, presumably to allow it to continue exploiting prisoners of war for their supposed intelligence value (even though the DoD explained, in its proposal, that “intelligence value, by itself, is not a basis for internment”), only one major media outlet — the New Yorker — has picked up on a disturbing disclosure in the Times’ coverage of the story on Sunday. I reported this in an article yesterday, when I explained that there was something deeply suspicious about the officials’ statement that:

the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention.

As I explained yesterday, this “seems to confirm, in one short sentence, that, although the CIA’s secret prisons have been closed down, as ordered by President Obama, a shadowy ‘rendition’ project is still taking place, with an unknown number of prisoners being transferred to Bagram instead.”

In a blog post for the New Yorker, Amy Davidson also picked up on the statement, calling it a sentence “that doesn’t make much sense,” and then asked:

So closing Guantánamo increases the need for a new Guantánamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantánamo because it’s unfashionable — like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida — or because we actually don’t like extrajudicial, indefinite detention?

While I await further developments, I recall that, back in April, CIA director Leon Panetta explained that, although the CIA “no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites,” the agency “retains the authority to detain individuals on a short-term transitory basis.” Panetta added that, although no detentions had occurred since he became director, “We anticipate that we would quickly turn over any person in our custody to US military authorities or to their country of jurisdiction, depending on the situation.”

Is this what is happening now at Bagram? Shortly after Panetta made his comments, I noted that “the only logical conclusion” I could draw was that, “essentially, the Obama administration’s only real problem with ‘extraordinary rendition’ is one of scale. The Bush administration’s industrial-scale rendition policies have been banished, but the prospect of limited rendition — to third countries rather than to the US court system, as would surely be more acceptable — is being kept as a possible option.”

Whether hidden transfers to third countries are taking place is unknown, but from my reading of the officials’ comments to the Times, I infer that the CIA is now handing suspects over to the US military, including those captured outside Afghanistan, and that this is the reason, above all, that the government is anxious to prevent the US courts from having access to foreign prisoners in Bagram.

Moreover, as with the Bush administration, the indications are that this process focuses solely on the gathering of “actionable intelligence” — or with “decommissioning” suspects — and that those responsible for implementing it have, yet again, chosen to ignore the fact that terrorism is a crime, prosecutable in the US courts, and not an act of war requiring secret prisons and extra-legal detention.

It doesn’t matter how much it may be dressed up in review procedures that include only the following “[p]ossible recommendations” for what will happen to those prisoners who “meet the criteria for internment”: “continued internment” in Bagram, transfer to the Afghan authorities for prosecution, transfer to the Afghan authorities “for participation in a reconciliation program,” and, in the cases of “non Afghan and non-US third-country national[s],” options “that may also include transfer to a third country for criminal prosecution, participation in a reconciliation program, or release.”

What, I wonder, are the options that were not included?

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Their views range from cautious optimism to total condemnation.

There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.

The new guidelines issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.

Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”

She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”

“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.

“The idea of assigning a non-lawyer ‘personal representative’ who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn’t result in fair proceedings from the failed experiment at Guantanamo — called the “Combatant Status Review Tribunals” (CSRTs) — which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”

A more hopeful note was struck by Sahr Muhammed Ally, senior associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”

But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide.”

She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.

He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”

He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”

He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”

In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram. “The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel — they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”

Afghanistan, July 19: Obama outside Bagram airbase. Photo: U.S. Army.

The war in Afghanistan hangs like some cloud of poison gas over Washington that won’t blow away.

It sickens everything as it spreads. It continues to suck precious tax dollars out of the Treasury, money this country cannot afford to squander, especially as millions of Americans are sinking into poverty and joblessness exceeds 10 percent.

Writing in USA Today on March 10, Susan Page reported, “In one year, 24 million slide from ‘thriving’ to ‘struggling’ and “Some fear that the American dream may be in peril as well.”

Worse, the U.S. is turning poverty-plagued Afghanistan, a long-suffering nation of 25 million souls into another Iraq, perhaps even another Vietnam.

Afghanistan has already been under illegal U.S. assault for eight years and President Obama’s top military advisers are telling him it will take many more years to achieve “victory,” a term having utterly no meaning for skyrocketing numbers of dead and dismembered civilians.

U.S. troops dispatched to “build long-term stability” in Afghanistan (the phrase was uttered by Obama accomplice British Prime Minister Gordon Brown) went from 5,200 in 2002 to 62,000 currently while the cost has shot up from $21 billion to $60 billion a year in that period for a grand total of $228 billion – dollars that could have been far better spent in America, on Americans, for Americans.

And dispatching more troops means dispatching more targets. “Deaths from bombings soaring,” the Miami Herald reported on Aug. 12. IED explosions soared to 828 in July, more than twice as many as in the previous July and the highest level since the war began. This is the road to “victory”?

Admiral Mike Mullen, chairman of the Joint Chiefs, calls the Afghan crisis “serious and deteriorating” as U.S. casualties hit new highs. The Pentagon throws crack Marine fighters at the Taliban in southern Helmand province yet they are not enough.

General Stanley McChrystal may shortly have to ask to increase his forces by nearly half. Worse, President Obama has escalated the fighting into Pakistan, where the Pakistani Taliban control areas close to the capital of Islamabad, and where the fighting has created two million refugees.

Congratulations to the White House and Congress: America is now at war in three Middle Eastern nations, on behalf of governments in all three that are weak, unpopular and corrupt. Who would have thunk it?

And even though McChrystal says “the most important thing is to not hurt the Afghan people,” Obama is escalating, not withdrawing, and children just like his own daughters are being carted to the cemeteries.

Even conservative columnist Pat Buchanan asks, “What is so vital to us in that wilderness land worth another eight years of fighting, bleeding and dying, other than averting the humiliation of another American defeat?”

Buchanan rightly adds, “And if Obama yet believes this is a war of necessity we cannot lose, and he must soldier on, his decision will sunder his party and country, and put at risk his presidency.”

George Will, another conservative columnist, wants to continue the war but by doing “only what can be done from offshore, using intelligence, drones, cruise missiles, airstrikes and small, potent special forces units, concentrating on the porous 1,500-mile border with Pakistan, a nation that actually matters.”

He wants land forces out. Apart from the smug arrogance with which Will dismisses Afghanistan as a no-account nation (!), this theep dinker’s strategy of bombarding from untouchable bases at sea will only inspire fresh hatred against the U.S.

Afghani rage is white hot because the Pentagon attacks with unmanned drones and Afghanis regard this method of warfare as “unfair” and unmanly. Reuters reported that in Farah province the district leader lamented an air attack in Bala Boluk that killed 108 civilians.

Does Obama really believe he is doing the Afghans a favor?

Americans need to recognize that violence only begets violence, that attacks only beget more attacks, and that each round of reprisals gets ever deadlier. Also, there would be no war today if U.S. meddling hadn’t jump-started Osama bin Laden.

“(President) Clinton’s bombing of Sudan and Afghanistan in 1998 effectively created Al Qaeda, both as a known entity in the intelligence world and also in the Muslim world,” philosopher Noam Chomsky is quoted as saying in Imperial Ambitions, a book he authored with David Barsamian.

“In fact, the bombings created Osama bin Laden as a major symbol, led to a very sharp increase in recruitment and financing for Al Qaeda-style networks, and tightened relations between bin Laden and the Taliban, which previously had been quite hostile to him.”

The U.S. is by no means innocent in bringing war and misery to this country.

While the only reason many Americans initially approved of the wars in Afghanistan and Iraq is because their politicians lied to them, a spineless Congress has consistently funded the White House.

As David Swanson notes in Daybreak, the only member of the House to oppose letting President Bush pounce on Afghanistan was Barbara Lee, D-California, who wept honest tears of shame and rage: “She alone, would refuse to authorize the President to use powers the Constitution does not give him, and trust him to use those powers wisely.”

Again, Swanson writes, when the House last April voted on President Obama’s budget to expand the Afghan conflict, “this time Congressman Dennis Kucinich stood alone in voting No in opposition to war.”

“We are now a nation,” Swanson laments, “that regularly bombs civilians, detains the innocent, and tortures suspects – sometimes to death.”

As Francis Boyle, international law professor at the University of Illinois, Urbana-Champaign, puts it, “Now we have a situation where Obama is off on his own without authorization from the UN Security Council and also now illegally exceeding the authorization that had been given to Bush by Congress after 911…plus he has now escalated the conflict into Pakistan…(and) set off a humanitarian catastrophe for people of Pakistan akin to what Nixon set off in Cambodia.”

America today is a “failed state.” It is a failed democracy. Its people want peace and its elected officials make war.

After taking the lead in establishing the United Nations at San Francisco after World War II, America is today the chief occupier, the chief war-maker, the chief arms-maker, and the chief arms-peddler, on the planet, and the nation that is most feared by humanity at large.

It spends nearly 200 times as much for war as diplomacy. America’s Founders envisioned a nation that would show “a decent respect to the opinions of mankind” (Jefferson) yet today the Pentagon spends more taxpayer’s dollars on war than all other countries combined.

And while it frightens its citizens into thinking they are in danger from terrorists with fabricated color-coded alerts it is itself spreading terror in the Middle East. Mr. Obama is only the latest, slickest model in its long succession of imperial presidents.

Maybe he should heed the advice President George W. Bush dispensed in Milwaukee on Oct. 8, 2003, but never took himself: “See, free nations are peaceful nations. Free nations don’t attack each other. Free nations don’t develop weapons of mass destruction.”

Of far greater importance than what the Afghan war will do to Obama’s presidency or the national debt or even the lengthening casualty lists of our troops is what it is doing to the innocent people of Afghanistan.

The managers of the military-industrial complex who are promoting this war for their own profit apparently lose no sleep when they read reports such as the one from Farah cited above.

Perhaps they should be made to live among the Afghans for a time and share their peril or carry water to the wounded in the hospitals and change the blood-soaked sheets. Maybe they should be required to put their own sons and daughters in Kabul and Bala Boluk and see if they continue the Predator attacks.

Back in 1955, when Richard J. Daley first ran for mayor of Chicago, the public was unconvinced he had their best interests at heart. He won them over with the words, “When I see your street, I see my street. When I see your house, I see my house. When I see your children I see my children.”

That’s the kind of thinking those who hold power in America today need to adopt. When will President Obama see Afghanistan’s daughters as his own?

Sherwood Ross formerly worked for The Chicago Daily News and other major dailies and as a columnist for wire services. He currently runs a public relations firm for “worthy causes”. Reach him at sherwoodr1@yahoo.com

There’s Dubya now, still rewriting laws via signing statements. Still creating and destroying laws with executive orders. And still violating laws at his whim. Imagine Bush continuing his policy of extraordinary rendition, sending prisoners off to other countries with grim interrogation reputations to be held and tortured. I can even picture him formalizing his policy of preventive detention, sprucing it up with some “due process” even as he permanently removes habeas corpus from our culture.

I picture this demonic president still swearing he doesn’t torture, still insisting that he wants to close Guantanamo, but assuring his subordinates that the commander-in-chief has the power to torture “if needed,” and maintaining a prison at Bagram Air Base in Afghanistan that makes Guantanamo look like summer camp. I can imagine him continuing to keep secret his warrantless spying programs while protecting the corporations and government officials involved.

If Bush were in his third term, we would already have seen him propose, yet again, the largest military budget in the history of the world. We might well have seen him pretend he was including war funding in the standard budget, and then claim that one final supplemental war budget was still needed, immediately after which he would surely announce that yet another war supplemental bill would be needed down the road. And of course, he would have held onto his Secretary of Defense from his second term, Robert Gates, to run the Pentagon, keep our ongoing wars rolling along, and oversee the better part of our public budget.

Bush would undoubtedly be following through on the agreement he signed with Iraqi Prime Minister Nouri al-Maliki for all U.S. troops to leave Iraq by the end of 2011 (except where he chose not to follow through). His generals would, in the meantime, be leaking word that the United States never intended to actually leave. He’d surely be maintaining current levels of troops in Iraq, while sending thousands more troops to Afghanistan and talking about a new “surge” there. He’d probably also be escalating the campaign he launched late in his second term to use drone aircraft to illegally and repeatedly strike into Pakistan’s tribal borderlands with Afghanistan.

If Bush were still “the decider” he’d be employing mercenaries like Blackwater and propagandists like the Rendon Group and he might even be expanding the number of private security contractors in Afghanistan. In fact, the whole executive branch would be packed with disreputable corporate executive types. You’d have somebody like John (“May I torture this one some more, please?”) Rizzo still serving, at least for a while, as general counsel at the CIA. The White House and Justice Department would be crawling with corporate cronies, people like John Brennan, Greg Craig, James Jones, and Eric Holder. Most of the top prosecutors hired at the Department of Justice for political purposes would still be on the job. And political prisoners, like former Alabama Governor Don Siegelman and former top Democratic donor Paul Minor would still be abandoned to their fate.

In addition, the bank bailouts Bush and his economic team initiated in his second term would still be rolling along — with a similar crowd of people running the show. Ben Bernanke, for instance, would certainly have been reappointed to run the Fed. And Bush’s third term would have guaranteed that there would be none of the monkeying around with the North American Free Trade Agreement (NAFTA) that the Democrats proposed or promised in their losing presidential campaign. At this point in Bush’s third term, no significant new effort would have begun to restore Katrina-decimated New Orleans either.

If the Democrats in Congress attempted to pass any set of needed reforms like, to take an example, new healthcare legislation, Bush, the third termer, would have held secret meetings in the White House with insurance and drug company executives to devise a means to turn such proposals to their advantage. And he would have refused to release the visitor logs so that the American public would have no way of knowing just whom he’d been talking to.

During Bush’s second term, some of the lowest ranking torturers from Abu Ghraib were prosecuted as bad apples, while those officials responsible for the policies that led to Abu Ghraib remained untouched. If the public continued to push for justice for torturers during the early months of Bush’s third term, he would certainly have gone with another bad apple approach, perhaps targeting only low-ranking CIA interrogators and CIA contractors for prosecution. Bush would undoubtedly have decreed that any higher-ups would not be touched, that we should now be looking forward, not backward. And he would thereby have cemented in place the power of presidents to grant immunity for crimes they themselves authorized.

If Bush were in his third term, some of his first and second term secrets might, by now, have been forced out into the open by lawsuits, but what Americans actually read wouldn’t be significantly worse than what we’d already known. What documents saw the light of day would surely have had large portions of their pages redacted, and the vast bulk of documentation that might prove threatening would remain hidden from the public eye. Bush’s lawyers would be fighting in court, with ever grander claims of executive power, to keep his wrongdoing out of sight.

Now, here’s the funny part. This dark fantasy of a third Bush term is also an accurate portrait of Obama’s first term to date. In following Bush, Obama was given the opportunity either to restore the rule of law and the balance of powers or to firmly establish in place what were otherwise aberrant abuses of power. Thus far, President Obama has, in all the areas mentioned above, chosen the latter course. Everything described, from the continuation of crimes to the efforts to hide them away, from the corruption of corporate power to the assertion of the executive power to legislate, is Obama’s presidency in its first seven months.

Which doesn’t mean there aren’t differences in the two moments. For one thing, Democrats have now joined Republicans in approving expanded presidential powers and even — in the case of wars, military strikes, lawless detention and rendition, warrantless spying, and the obstruction of justice — presidential crimes. In addition, in the new Democratic era of goodwill, peace and justice movements have been strikingly defunded and, in some cases, even shut down. Many progressive groups now, in fact, take their signals from the president and his team, rather than bringing the public’s demands to his doorstep.

If we really were in Bush’s third term, people would be far more active and outraged. There would already be a major push to really end the wars in Iraq and Afghanistan/Pakistan. Undoubtedly, the Democrats still wouldn’t impeach Bush, especially since they’d be able to vote him out before his fourth term, and surely four more years of him wouldn’t make all that much difference.

This story was originally published on TomDispatch.com.

David Swanson is the author of the new book Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press, 2009). He holds a master’s degree in philosophy from the University of Virginia and served as press secretary for Kucinich for President in 2004. Swanson is just beginning a book tour of 48 cities and hopes to see you on the road. Check out his tour schedule by clicking here.

According to even the Pentagon’s own reckoning, for example, probably 85% of the captives being held at Guantanamo over the past eight years were not terrorists at all, and a fair number–probably the majority–weren’t even fighting anyone when they were captured. I’m sure that the averages at Bagram Air Base in Afghanistan, or at the secret prison in Iraq are no better. The military was offering bounties in Iraq and Afghanistan for alleged terrorists, you see, and probably still is, but in both of those lawless, tribal countries, many people have used the offer to settle old feuds, turning in people they wanted to punish or dispose of, and many others just turned in random people to get the reward money.

Remember this when you hear about torture tactics that we are learning were used by our side–things that make waterboarding sound like a walk in the park. We’re now getting confirmation of things that we journalists were hearing rumors of earlier: faked executions using blanks, faked executions in neighboring rooms, followed by threats of the same to a person who had just heard the screams and a shot in the cell next to him, threats with an electric drill, and now perhaps the worst yet–the threat to kill a captive’s children. And of course there is the already disclosed case of a captive who had his genitals cut with a razor, and generous use of tasers in places on the body designed to cause maximum pain. That, and of course there are a lot raped captives (including young boys), and a lot of bodies yet to be dug up of captives who were simply killed during torture.

We’ve got a litany of horror and abuse here that sounds like the worst kind of stories that used to come out of Saddam Hussein’s Iraq, or the Argentine Junta or Idi Amin’s Uganda. About the only thing missing is word that the military and CIA torturers were eating their victims, or feeding them their own genitals, but who knows? Maybe we’ll get there yet. It’s hard at this point to rule anything out.

What has become of the U.S.? We started out the victims of an attack in 2001, with the whole world rallying to our side, and within a matter of weeks, our government, acting in our name, had secretly embarked on a wholly unnecessary and totally criminal descent into the barbarity of Middle Ages.

And now? The new administration has claimed to have put a stop to the atrocities, but it remains adamant that it is not going to root out the evil that was already done to hundreds, perhaps thousands of people.

President Barack Obama says he does not want to look back at any crimes that were committed. He wants to go “forward.” This is not the voice of justice, though. This is the voice of political gutlessness and of big power exceptionalism. The same America that demands the prosecution of war criminals in little countries like Cambodia or Serbia or Sudan, considers itself exempt from criminal liability for its own crimes.

Attorney General Eric Holder says he may be ready to appoint a prosecutor to investigate cases where CIA or private contract torturers “overstepped” the rules set by the White House and Justice Department, but he has said he will not allow the investigation to go beyond that to pursue the people who enabled those acts of torture–people like Secretary of Defense Donald Rumsfeld who personally instructed torturers in Afghanistan to “take the gloves off” in one case, or Assistant Attorney Generals John Yoo and Jay Baybee (now a federal judge), who ruled that anything short of the destruction of bodily organs or of a pain level equivalent to death was okay. Nor will he allow any investigation to look at acts of torture that were authorized, like waterboarding, if they had the sanction of the Bush/Cheney White House.

This position taken by the new administration should sicken us all. Worse, it should be broadly condemned, because if the descent into barbarity which occurred with the highest White House sanction is not investigated thoroughly, and punished fully, there is no way we can say it will not happen again. In fact, it’s safe to say that it will happen again, the next time another charlatan gets into office and uses fear to blind the American people to all that is right and decent, and to the importance of maintaining the rule of law.

I know there are terrible things happening right now which demand our attention and action–an escalating, endless war in Afghanistan that increasingly resembles Vietnam in 1966 or 1967, a presidential cave-on on health care reform, a sell-out on real action against climate change, and on and on–but this particular crime–the crime of failing to act to punish violations of the Geneva Conventions on treatment of prisoners of war, which is being committed today by the Obama administration–is so obscene, so directly in our faces, and is such a stain on the whole nation, that it demands action.

We will probably never know how many innocent lives have been destroyed by America’s eight years of officially sanctioned torture, but we can at least see to it that the people who sanctioned it, and not just those who engaged in it (and that goes right up through the chain of command to the Commander in Chief and to the real power behind the throne, Dick Cheney), are put in the dock like the criminals at Nuremberg, to face the charge of war crimes. and crimes against humanity.

As the citizens of what we call a democracy, we can demand nothing less.

Dave Lindorff is a Philadelphia-based journalist. He is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) and more recently of The Case for Impeachment (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net

Source: Wikipedia

Rejecting arguments from both the Bush and Obama administrations, a federal judge has ordered the release of an Afghani who may have been as young as 12 when he was detained 6 ½ years ago for allegedly wounding two U.S. soldiers and an Afghan translator by throwing a grenade at their unmarked jeep.

U.S. District Court Judge Ellen Segal Huvelle granted Mohammed Jawad his habeas corpus writ on Thursday and ordered the Obama administration to submit the necessary information to Congress by Aug. 6 to begin the process of releasing Jawad from the Guantanamo Bay prison.

“After this horrible, long, tortured history, I hope the government will succeed in getting him back home,” Judge Huvelle told Justice Department lawyers during a court hearing Thursday. “Enough has been imposed on this young man to date.”

Judge Huvelle’s two-page order called for Jawad to be freed by Aug. 21 and demanded a status report to the court by Aug. 24. Recently, the Afghan government sent a letter to the U.S. government demanding his return.

However, it remains uncertain whether the Obama administration will free Jawad from U.S. custody or simply transfer his case from Guantanamo to a U.S. criminal court.

A Justice Department official told the New York Times that it remained “a very real possibility” that Jawad would be charged in a civilian court depending on “whether we can compile enough evidence to support a case,” adding “we don’t yet know the answer.”

On Wednesday, the Justice Department filed documents stating that it would agree to return Jawad to Afghanistan, but reserved the right to file criminal charges against him in federal court before the government schedules him to be released if additional evidence surfaces.

In court papers last week, the government said it had obtained new evidence to support Jawad’s continued imprisonment in connection with a criminal case.

“In light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis,” the filing said.

Nothing New

But this week, in a three-page declaration, Maj. Eric Montalvo, a Marine Judge Advocate assigned to the Office of Military Commissions who has represented Jawad since last August, said the new evidence the government claims it obtained in February was shared with him and others on Jawad’s defense team in May and that it is not “new and based upon our investigation none of it is credible or reliable.”

Additionally, Montalvo said he had a telephone conversation on Monday with a “high-level [Afghan] government official who directly represents the interest of His Excellency, President [Hamid] Karzai” and “this government official assured me that the Afghanistan government is ready, willing, and able to pick up Jawad at Guantanamo and stated ‘if I have to pay for the plane out of my own pocket I will.’”

During a military commission proceeding last year, it was revealed that Jawad’s confession to throwing a grenade at an unmarked jeep was made only after Afghan authorities threatened to kill his family. The confession was written in Farsi, a language Jawad could not speak, read or write.

The lead prosecutor at Jawad’s military commission hearing, Lt. Col. Darrel Vandeveld, resigned because he said the evidence against Jawad was obtained through torture and there were no eyewitnesses to support claims that Jawad threw the grenade at the soldiers in December 2002.

Vandeveld recently signed a 15-page declaration calling for Jawad to be released from custody.

“It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission,” Vandeveld wrote.

“There is, however, reliable evidence that he was badly treated by U.S. Authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad’s [sic] for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”

Court documents filed by the American Civil Liberties Union earlier this month state that Jawad was subjected to severe beatings before his interrogation sessions.

“Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him,” Jonathan Hafetz, an attorney with the ACLU’s National Security Project who represents Jawad, said Thursday.

“We are pleased that the Justice Department has expressed a commitment to getting him home so that this nightmare of abuse and injustice can finally come to an end.”

Notorious Case

Given the uncertainty about Jawad’s age at the time of his arrest and the ambiguity about his alleged actions, his indefinite detention as an enemy combatant has become a notorious example of the abuses associated with President George W. Bush’s detention policies.

“U.S. personnel at Bagram [Air base in Afghanistan, where Jawad was detained after his arrest] subjected Mr. Jawad to beatings, forced him into painful ’stress positions,’ deprived him of sleep, forcibly hooded him, placed him in physical and linguistic isolation, pushed him down stairs, chained him to a wall for prolonged periods, and subjected him to threats, including threats to kill him, [his family], and other intimidation,” the ACLU said in a July 1 legal brief.

“While in an isolation cell, Mr. Jawad remained hooded and restrained with handcuffs. Guards made him stand up and, if Mr. Jawad sat down, he was beaten. Guards also kicked Mr. Jawad and made him fall over, as he was wearing leg shackles and was unable to take large steps. Sometimes guards fastened Mr. Jawad’s handcuffs to the door of his isolation cell so that he was unable to sit down.”

U.S. authorities later transported Jawad to Guantanamo, where he was subjected to the “frequent flyer” sleep deprivation program and other harsh interrogation methods, his lawyers said. Eventually, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.

U.S. Air Force Major David Frakt, another attorney representing Jawad, said, “It is astonishing that even after conceding that the bulk of the evidence against Mr. Jawad was obtained through torture, the government is even considering proceeding with its bankrupt case. It is long past time to return Jawad home to his native Afghanistan in the face of the absence of any evidence against him.”

Source: Wikipedia

Faced with impending defeat in a U.S. District Court habeas corpus case, the Obama administration devised a new strategy for continuing the detention of Mohammed Jawad, an Afghani who may have been as young as 12 in 2002 when he allegedly wounded two U.S. soldiers with a grenade.

Justice Department lawyers announced Friday that they would transform Jawad’s indefinite detention as an enemy combatant at Guantánamo Bay into a criminal case, thus negating the habeas corpus hearing in Washington, D.C., where Judge Ellen Segal Huvelle had accused the government of “dragging [the case] out for no good reason.”

Jonathan Hafetz, an attorney with the ACLU’s National Security Project and one of Jawad’s lawyers, blasted the Obama administration for its “pathetic attempt to prolong an outrageous case and to manipulate the court system.”

“The government’s case failed in the Guantánamo military commission hearings and failed in the habeas corpus proceedings before a federal court, and now – knowing that its case would most likely be dismissed – the government is trying to take a third bite at a rotten apple,” Hafetz said. “This travesty of justice has gone on long enough, and Jawad should be sent home.”

Judge Huvelle appeared ready to do just that, indicating that she was prepared to order Jawad’s return to Afghanistan, given the paucity of evidence against him, especially after the U.S. government didn’t contest that his confession had been coerced.

Regarding witnesses against Jawad, Huvelle said last week “the Americans did not see anything and there may or may not be an Afghani who saw something. You can’t prevail here without a witness who saw it. I mean, let’s be frank. You can tell your superiors that. You can’t. There is no evidence otherwise. … Seven years and this case is riddled with holes.”

During a military commission proceeding last year, it was revealed that Jawad confessed to throwing a grenade at an unmarked jeep, wounding the two U.S. soldiers and an Afghani translator, but only after Afghan authorities threatened to kill his family. The confession was written in Farsi, a language Jawad could not speak, read or write.

The lead prosecutor at Jawad’s military commission hearing, Lt. Col. Darrel Vandeveld, resigned because he said the evidence against Jawad was obtained through torture and there were no eyewitnesses to support claims that Jawad threw the grenade.

Vandeveld recently signed a 15-page declaration calling for Jawad to be released from custody.

“It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission,” Vandeveld wrote.

“There is, however, reliable evidence that he was badly treated by U.S. Authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad’s [sic] for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”

Court documents filed by the American Civil Liberties Union earlier this month state that Jawad was subjected to severe beatings before his interrogation sessions.

Building a Criminal Case

Justice Department attorneys said in a four-page motion Friday that at the direction of Attorney General Eric Holder, they will now try to build a criminal case against Jawad.  Although the government won’t detain Jawad as an enemy combatant any longer, it has other evidence to support his continued imprisonment in connection with a criminal case, the filing said.

“In light of the multiple eyewitness accounts that were not previously available for inclusion in the record – including videotaped interviews – as well as third-party statements previously set forth in the government’s factual return, the Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue, and that it do so on an expedited basis,” the filing said.

The Obama administration was facing a Friday deadline on the habeas corpus case set by Judge Huvelle, who had rejected a government request for an extension until Aug. 3.

“I’m not putting it off,” Judge Huvelle said last week. “[Jawad] has been there seven years — seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don’t know what he is doing there. Without his statements, I don’t understand your case. I really don’t. …

“You’d better go consult real quick with the powers that be, because this is a case that’s been screaming at everybody for years.  This case is an outrage to me. … I’m not going to sit up here and wait for you to come up with new evidence at this late hour. … This case is in shambles.”

In setting the July 24 deadline, the judge also warned the government against coming up with a maneuver to take the case away from her.

“I’m not going to have people running around trying to figure out a way to get this case out of the Court’s jurisdiction for some other reason,” Huvelle said.

However, in its Friday motion, the Justice Department appeared to do just that, announcing its plan to transfer the Jawad case to criminal jurisdiction. Jawad is being moved to another section of Guantanamo, the government said. He could become the second person sent to the United States from Guantanamo to face trial in federal court for terrorism-related activities.

Notorious Case

Given the uncertainty about Jawad’s age at the time of his arrest and the ambiguity about his alleged actions, his indefinite detention as an enemy combatant has become a notorious example of the abuses associated with President George W. Bush’s detention policies.

“U.S. personnel at Bagram [Air base in Afghanistan, where Jawad was detained after his arrest] subjected Mr. Jawad to beatings, forced him into painful ’stress positions,’ deprived him of sleep, forcibly hooded him, placed him in physical and linguistic isolation, pushed him down stairs, chained him to a wall for prolonged periods, and subjected him to threats, including threats to kill him, [his family], and other intimidation,” the ACLU said in a July 1 legal brief.

“While in an isolation cell, Mr. Jawad remained hooded and restrained with handcuffs. Guards made him stand up and, if Mr. Jawad sat down, he was beaten. Guards also kicked Mr. Jawad and made him fall over, as he was wearing leg shackles and was unable to take large steps. Sometimes guards fastened Mr. Jawad’s handcuffs to the door of his isolation cell so that he was unable to sit down.”

U.S. authorities later transported Jawad to Guantanamo, where he was subjected to the notorious “frequent flyer” sleep deprivation program and other harsh interrogation methods, his lawyers said. Eventually, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.

Recently, the Afghan government sent a letter to the U.S. government demanding Jawad’s return. But the Justice Department said in Friday’s court document that President Barack Obama is the final authority on such matters and noted that Congress has demanded a 15-day notification before any Guantanamo detainee may be transferred or released.

U.S. Air Force Major David Frakt, another attorney representing Jawad, said, “It is astonishing that even after conceding that the bulk of the evidence against Mr. Jawad was obtained through torture, the government is even considering proceeding with its bankrupt case. It is long past time to return Jawad home to his native Afghanistan in the face of the absence of any evidence against him.”

A telephone conference involving the ACLU, Judge Huvelle and Justice Department attorneys is set for next Friday. A court hearing in the matter is scheduled for Aug. 5.