The prison in Guantanamo Bay has been a symbol of the War on Terror, a perverse enactment of justice upon those who attacked us on 9/11. Though the legal justification for the Bush-era institution is convoluted, it’s not the only evolving relic of our overseas interventions in the Middle East.
Take Bagram Airfield, which currently houses over 65 Afghan prisoners who have been affiliated with Al-Qaeda, yet not formally charged with anything. With American troops leaving in 2014, their fate is uncertain.
If Guantanamo has taught us anything, it’s that our overseas interventions have serious ethical quandaries and dangerous consequences. These not only cost us financially, but strike at the morality of the legal relationship that Americans have with our government.
Bagram, also known as the “Black Jail” by local Afghans, is located about seven miles from Charikar in the Parwan Province of Afghanistan, one of the secured provinces in the country. Most attacks by insurgents in the area rely on roadside bombs or grenade attacks. The prison itself consists of windowless, concrete cells that are illuminated by a single lightbulb. The detainees have no human contact, except for two interrogation sessions per day. Other detainees claim to have been held in solitary confinement, photographed naked, and deprived of sleep.
If we are going to detain prisoners on foreign soil during a military occupation, they should have the right to legal process we have reserved for both citizens and non-citizens alike. The Bush administration’s John Yoo successfully argued that the Geneva Conventions do not apply to “enemy combatants” or individuals in country-less organizations like Al-Qaeda. In a positive and often forgotten action in 2009, the Obama administration retired that term, but still retained a broad “right to detain” those who provide assistance to Al-Qaeda and its associates around the globe.
This designation, while not specifically identifying any Islamic organization, could reasonably affect anyone in contact with a mosque or a madrasa. In light of the fact that the NSA has made it clear it needs the haystack to find the needle in surveillance of the enemy, there should be serious concerns. The definition is so broad; it is meaningless.
This doesn’t bode well for future foes of American foreign policy, both abroad and at home. While these detainees aren’t “enemy combatants,” they are still in murky legal territory.
It appears that the Obama administration doesn’t have any really decent options, but they have three realistic choices: turn them over to Karzai’s government, try them as soon as possible and unfairly, or transfer them to another location for further uncertainty.
Karzai has made it clear that he doesn’t like U.S.-run prisons, but was under agreement to let the Americans run it until 2014. What happens to the detainees afterwards will probably be less severe if the first option is chosen. The second option is logistically unfeasible since it’s August already. Therefore, the third choice is the most likely scenario. After all, the United States has network of domestic terrorism prisons and undocumented immigrant prisons. If those don’t work, we can siphon them off to other countries like the Obama administration did a couple of weeks ago when he transferred two detainees from Guantanamo to Algeria.
But what the Obama administration does with those at Bagram may well be a precursor to his ever-verbalized desire to close Guantanamo, the prison in Cuba which currently houses 166 inmates and is currently enduring a waining hunger strike over indefinite detention. The strike seems to be tapering off due to a pardon allowing prisoners to be with one another for the holy month of Ramadan. The irony of a country that espouses religious freedom not allowing people in prison to practice their religion is one that continues to be pervasive in the way we prosecute the War on Terror.
The reasons there is such uncertainty around these inmates is because in our rush to create a whole new kind of global conflict in the War on Terror, the country never stopped to ask ourselves the legal questions involved. As a result, Americans are stuck with the same issue that a drunken college student has the following morning: that glaring uncertainty about the repercussions of your actions, since you aren’t quite sure what they caused. Until there is a publicly available, clearly defined legal process on how America is going to deal with these situations, and our enemies both foreign and domestic, we will sit in this state of Orwellian limbo.
Obama would do an historic move if he were to step forward and present such a vision. He should clearly define the boundaries and rationale for trying these individuals and what their crimes are. Another extremely important question that must be answered is the role of religion in this process. The focus of the War on Terror has been squarely on Islamic terrorism, but what happens if there’s another threat? Do the same legal rules apply? If Obama were to step up and provide a clear, human rights based proposal, he would take a great step forward to ending key portions of our massive overseas interventions and illegal practices. He could, at least in one situation, be a champion of global human rights. Providing such legal ideas shouldn’t be that hard for a former constitutional law professor.
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