Bagram Decision Highlights Need For Due Process, Transparency

Washington, DC The ruling today issued by the D.C. Circuit Court of Appeals in the case of Maqaleh v. Gates, concluding that detainees held by the United States in Afghanistan do not have the right to challenge their detention in a U.S. federal court, highlights the need for the Obama administration to ensure that due process is provided to all Bagram detainees and that they are not being detained arbitrarily.

Human Rights First also has serious concerns about the implications of the court’s decision that suspected terrorists can be seized anywhere outside the United States, brought to the Bagram detention center in Afghanistan, and thereafter treated as an enemy belligerent. Such treatment of terrorism suspects is not supported by the laws of war as interpreted by the Supreme Court, which has not authorized indefinite detention of individuals seized far from the battlefield.

Human Rights First has previously criticized the failure of the United States to provide adequate hearings to determine whether all Bagram detainees are being lawfully held as unprivileged enemy belligerents.

“Although the Obama administration has improved the review procedure provided earlier by the Bush administration, the current Detainee Review Board hearings remain inadequate and still fail to provide due process,” said Human Rights First Senior Associate Daphne Eviatar. “Under the current procedures, detainees have no right to representation by a lawyer, their hearings are not public and much of the evidence used against them remains secret. Even the rules governing the review board procedures have not been released publicly.”

She continued, “It is impossible to have confidence that the United States is lawfully detaining actual enemy belligerents when their status is determined without disclosure and they can’t even see all of the evidence used against them. In order to build confidence among Afghans and the rest of the world that it is lawfully detaining actual enemy belligerents, the United States should act transparently instead of withholding evidence from detainees and making determinations about their status based on secret evidence.”

In Boumediene v. Bush, the U.S. Supreme Court determined that similar proceedings provided at Guantanamo Bay were inadequate to provide detainees due process. The Circuit Court decision today acknowledged this, concluding that this factor weighs in favor of providing Bagram detainees the right to challenge their detention in federal courts. It ultimately decided the case based on other considerations, however, such as the practical difficulty of providing habeas corpus rights to more than 800 detainees held in Afghanistan. Nevertheless, the detainees at issue in this case have been held without charge or trial for seven years, as have many of the detainees at Bagram.

“Today’s decision underscores the importance of the Obama administration providing legitimate procedures for Bagram detainees to challenge their detention,” said Eviatar. “Improving those procedures is not only a matter of the United States meeting its obligations under international law.  It has practical importance as well. Only by providing legitimate public proceedings that afford detainees a meaningful right to challenge their detention can the United States hope to win the trust and respect of the Afghan people, whose support is so critical to U.S. national security and strategic interests in Afghanistan.”