Rethinking Detention Policies in Afghanistan

Thursday, September 17, 2009

THE OBAMA administration deserves credit for proposing changes to the detainee review process at Bagram Air Base. In theory, the changes should increase the likelihood that only those who should be held will be imprisoned there.

But the administration inexcusably continues to resist necessary reforms for those detainees -- among the longest held -- who were captured beyond the Afghan battlefield. It also leaves open the possibility of future renditions to Bagram of terrorist suspects captured outside Afghanistan. On this front, the new proposal risks duplicating the lawlessness that came to mar the detentions at the U.S. Naval Base at Guantanamo Bay, Cuba.

The Defense Department proposal calls for Afghans captured on the battlefield and sent to Bagram to have more leeway in challenging their detentions. A detainee will be given an unclassified summary of the evidence justifying detention and will be allowed to attend review hearings and have the help of a personal representative in gathering and presenting witnesses or evidence to contest internment. The representative will be permitted to review the government's evidence, including classified information. Detainees will have the opportunity to testify but cannot be compelled to do so by the government.

A three-officer military panel will review a detention decision within 60 days after the prisoner arrives, and new panels will reassess the detention every six months thereafter if the detainee continues to be held.

These protections go considerably further than what is required for enemy combatants by the Geneva Conventions -- and appropriately so. Because of the unorthodox nature of this military campaign, where fighters are not uniformed and often meld with civilian populations, the United States must provide additional safeguards to ensure that innocents are not wrongly held. There are limitations: For example, the personal representatives are military officers -- not lawyers with a fiduciary duty to detainees -- and witnesses and evidence must be "reasonably available" to be brought into play. As is normally the case with battlefield detentions, there is no independent judicial review. While this is appropriate, the president and military commanders must ensure that the reviews of detainees are carried out in good faith.

The new proposal, however, falls short in refusing to make allowances for those few -- court records indicate 30 people; the Defense Department says 10 -- who were captured in other countries, far from any recognizable battlefield, and transported to Bagram. These detainees, as a federal court judge ruled in April, deserve the right to challenge their detentions in federal court. Yet the Obama Justice Department, following the lead of George W. Bush's administration, continues to contest this, arguing that allowing habeas corpus review in these unusual and limited cases could open the door to future court challenges even by those captured on the battlefield. These arguments are unpersuasive; they should be rejected by the federal appeals judges now considering the matter.

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