Court Ruling Highlights Need to Reform U.S. Detention Practices in Afghanistan

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Today's ruling by U.S. District Judge John Bates granting access to U.S. courts to three foreign prisoners captured outside Afghanistan and being held at Bagram air base in Afghanistan underscores the need to bring U.S. detention practices in Afghanistan into compliance with applicable humanitarian (laws of war) and human rights law, said Human Rights First.

"The chances of success of President Obama's new strategy for Afghanistan will be enhanced greatly by new detention practices in Afghanistan that ensure compliance with U.S. treaty obligations," said Sahr MuhammedAlly, Senior Associate at Human Rights First. "Detaining a large number of prisoners indefinitely and without meaningful process is not the way to win the 'hearts and minds' and cooperation of the local population in Afghanistan."

Judicial review is a basic safeguard against arbitrary and secret detention, torture and other ill-treatment and unlawful transfers from one country or government to another. But there is presently no judicial process for the more than 600 detainees being held in Bagram. Afghan courts have no jurisdiction over their own--or any other country's--nationals held by the U.S. military in Afghanistan. A detainee review board reviews a detainee's status usually within 75 days of being processed in Bagram and every six months thereafter, and recommends release or continued detention. But the review board hearings are not fair:  detainees have no right to counsel, nor are they permitted to question government witnesses or call witnesses of their own. There is no appeal from the review board determination. Judge Bates in his ruling recognized that the Bagram review processes fell "well short" of the review processes in Guantánamo which the Supreme Court found inadequate in Boumediene v. Bush.

The petitioners in Maqaleh v. Gates have been held without charge for 6 years. The district court relied on the 2008 Supreme Court decision in Boumediene, which rejected the Bush administration's arguments that detainees held at Guantánamo, non-U.S. nationals captured and held by the U.S. were beyond the reach of habeas corpus.

"A real commitment by the Obama Administration to bring the United States within the rule of law is not limited to closing Guantanamo, but must involve creative thinking to conform all its detention practices to the requirements of human rights and humanitarian law," said MuhammedAlly. "Bagram must not be allowed to remain a law-free zone."

In April 2008, Human Rights First issued a report Arbitrary Detention: Trials of Bagram and Guantanamo Detainees in Afghanistan.

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