Home US & World News COMMENTARY: After HR1540/NDAA2012 signing statement Obama should return Nobel Prize

COMMENTARY: After HR1540/NDAA2012 signing statement Obama should return Nobel Prize

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Is it not time that President Obama, having failed to live up to his own words ("We can acknowledge that oppression will always be with us, and still strive for justice. We can admit the intractability of depravation, and still strive for dignity.") return the Nobel Peace Prize that he accepted on Dec. 10, 2009?  --  Emptywheel, a blogger with a Ph.D., offered a preliminary analysis of the "signing statement" with which on Dec. 31, 2011, President Barack Obama signed into law H.R. 1540 (a.k.a. NDAA 2012),[1] nullifying the Bill of Rights, and a commentary on a little-noticed passage that she called "the worst part of the signing statement."[2]  --  This passage nullified "one of the few good parts of the detainee provisions in this bill, because it would have finally expanded the due process available to the thousands of detainees who are hidden away at Bagram now with no meaningful review."  --  In that part of the signing statement Obama said that (in emptywheel's words) he "doesn’t have to go back and grant everyone they’ve given the inadequate review process currently in place a new review.  The 3,000 detainees already in Bagram are just SOL [s**t out of luck]."  --  In November CBS Evening News called attention to the "explosive growth of the detainee population at Bagram."[3]  --  A Human Rights Watch lawyer said that there is "a complete lack of due process" at Bagram, but President Obama's signing statement implicitly singled out these prisoners to assert his authority to continue to deny such due process, saying:  "my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section." ...

1.

START OUT THE NEW YEAR WITH INDEFINITE DETENTION

By emptywheel

Emptywheel
December 31, 2011

http://www.emptywheel.net/2011/12/31/start-out-the-new-year-with-indefinite-detention/


1.

Happy New Year!  No way to start the New Year out right than new detainee provisions formalizing indefinite detention.

Here is the part of Obama’s signing statement for the Defense Authorization that pertains to the most onerous parts of the detainee provisions, with my comments.

    "Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable."


Shorter Obama:  we were prepared to continue indefinitely detaining people based on my Executive Order until they die off.  What’s wrong with that?

    "Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

    "Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe."


This is a fair point, one that he should have made much more strongly when this bill (now law) was being debated.  A little fear-mongering would have been nice too.

    "My Administration has consistently opposed such measures.  Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people.  Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

    "Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then."


Apparently, Obama has been reading “associated forces” into the AUMF for the last three years.  I guess that’s why AQAP members, who weren’t covered by the AUMF, are dead.

    "Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”  Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”  My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF."

Note, this statement can be read both ways:  not just to say that indefinite detention is not new (which it’s not, and which I’ve been saying for some time), but also that anything they claim the courts have recognized as lawful -- like the use of deadly force while purportedly trying to detain someone -- remains lawful.

    "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation." [my emphasis]

At one level, it’s nice to see Obama affirming that he won’t indefinitely detain us in military custody.  Partly, though, Obama is still signing a law that President Mitt or Newt or Santorum could -- and would -- use to indefinitely detain Americans.  As I said, “Vote for me, or President Newt will indefinitely detain you.”

But Obama isn’t even making that campaign promise!  Note the trick here.  Section 1021 pertains to all indefinite detention, not just military detention.  But Obama only promises not to put Americans into indefinite military detention.  I guess promising that Americans wouldn’t be indefinitely detained, period, was too much of a stretch.

    "My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law."


Remember, “other applicable law” includes Scott v. Harris, which authorizes the use of deadly force when you’re pretending to try to detain someone.

    "Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.”  This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate.  I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.  While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations."

A month ago, I noted that Obama had ways of maintaining civilian primacy without vetoing this bill. This section makes it sound like he agrees.

    "I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security. Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States."
[my emphasis]

The Republicans are going to go nuts about this passage -- not only is Obama saying the waiver is minimally restrictive on him, but he’s also saying he will exempt “appropriate categories of cases” from presumptive military detention. That may well include “anyone captured in the U.S.”  Let’s hope so.

    "As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system.   Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost.  I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention.  I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation."

Nothing I disagree with in this section.  Though, again, it’d be nice to have seen the Administration make this argument at more length -- while invoking the danger of following the Republican approach -- before the bill was passed.

This statement is precisely what I expected.  A belated defense of civilian law. And an attempt–one even more timid than I imagined -- to pretend that Obama objects to the principle of indefinite detention, even including the possibility of indefinite civilian detention for American citizens.

I’ve put the full signing statement below the rule.
________________________________________________________________

Today I have signed into law H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012.”  I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed.  In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it.  In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.  Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable.  Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe.  My Administration has consistently opposed such measures.  Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people.  Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.

Section 1021 affirms the executive branch’s authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note).  This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.  Two critical limitations in section 1021 confirm that it solely codifies established authorities.  First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”  Second, under section 1021(e), the bill may not be construed to affect any “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”  My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF.  Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.”  This section is ill-conceived and will do nothing to improve the security of the United States.  The executive branch already has the authority to detain in military custody those members of al-Qa’ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate.  I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.  While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.

I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security.  Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.  As my Administration has made clear, the only responsible way to combat the threat al-Qa’ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system.  Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost.  I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention.  I will therefore interpret and implement section 1022 in the manner that best preserves the same flexible approach that has served us so well for the past 3 years and that protects the ability of law enforcement professionals to obtain the evidence and cooperation they need to protect the Nation.

My Administration will design the implementation procedures authorized by section 1022(c) to provide the maximum measure of flexibility and clarity to our counterterrorism professionals permissible under law.  And I will exercise all of my constitutional authorities as Chief Executive and Commander in Chief if those procedures fall short, including but not limited to seeking the revision or repeal of provisions should they prove to be unworkable.

Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees.  Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section.

Sections 1026-1028 continue unwise funding restrictions that curtail options available to the executive branch. Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose.  I continue to oppose this provision, which intrudes upon critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests.  For decades, Republican and Democratic administrations have successfully prosecuted hundreds of terrorists in Federal court.  Those prosecutions are a legitimate, effective, and powerful tool in our efforts to protect the Nation.  Removing that tool from the executive branch does not serve our national security.  Moreover, this intrusion would, under certain circumstances, violate constitutional separation of powers principles.

Section 1028 modifies but fundamentally maintains unwarranted restrictions on the executive branch’s authority to transfer detainees to a foreign country. This hinders the executive’s ability to carry out its military, national security, and foreign relations activities and like section 1027, would, under certain circumstances, violate constitutional separation of powers principles.  The executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. In the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict.

Section 1029 requires that the Attorney General consult with the Director of National Intelligence and Secretary of Defense prior to filing criminal charges against or seeking an indictment of certain individuals.  I sign this based on the understanding that apart from detainees held by the military outside of the United States under the 2001 Authorization for Use of Military Force, the provision applies only to those individuals who have been determined to be covered persons under section 1022 before the Justice Department files charges or seeks an indictment . Notwithstanding that limitation, this provision represents an intrusion into the functions and prerogatives of the Department of Justice and offends the longstanding legal tradition that decisions regarding criminal prosecutions should be vested with the Attorney General free from outside interference.  Moreover, section 1029 could impede flexibility and hinder exigent operational judgments in a manner that damages our security. My Administration will interpret and implement section 1029 in a manner that preserves the operational flexibility of our counterterrorism and law enforcement professionals, limits delays in the investigative process, ensures that critical executive branch functions are not inhibited, and preserves the integrity and independence of the Department of Justice.

Other provisions in this bill above could interfere with my constitutional foreign affairs powers. Section 1244 requires the President to submit a report to the Congress 60 days prior to sharing any U.S. classified ballistic missile defense information with Russia. Section 1244 further specifies that this report include a detailed description of the classified information to be provided.  While my Administration intends to keep the Congress fully informed of the status of U.S. efforts to cooperate with the Russian Federation on ballistic missile defense, my Administration will also interpret and implement section 1244 in a manner that does not interfere with the President’s constitutional authority to conduct foreign affairs and avoids the undue disclosure of sensitive diplomatic communications. Other sections pose similar problems.  Sections 1231, 1240, 1241, and 1242 could be read to require the disclosure of sensitive diplomatic communications and national security secrets; and sections 1235, 1242, and 1245 would interfere with my constitutional authority to conduct foreign relations by directing the Executive to take certain positions in negotiations or discussions with foreign governments.  Like section 1244, should any application of these provisions conflict with my constitutional authorities, I will treat the provisions as non-binding.

My Administration has worked tirelessly to reform or remove the provisions described above in order to facilitate the enactment of this vital legislation, but certain provisions remain concerning.  My Administration will aggressively seek to mitigate those concerns through the design of implementation procedures and other authorities available to me as Chief Executive and Commander in Chief, will oppose any attempt to extend or expand them in the future, and will seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.


2.

THE WORST PART OF THE SIGNING STATEMENT: SECTION 1024

By emptywheel

Emptywheel
December 31, 2011

http://www.emptywheel.net/2011/12/31/the-worst-part-of-the-signing-statement-section-1024/


As I explained [above in #1], Obama’s signing statement on the defense authorization was about what I expected.  He included squishy language so as to pretend he doesn’t fully support indefinite detention.  And he basically promised to ignore much of the language on presumptive military detention.

But there was one part of the signing statement I (naïvely) didn’t expect. It’s this:

    "Sections 1023-1025 needlessly interfere with the executive branch’s processes for reviewing the status of detainees.  Going forward, consistent with congressional intent as detailed in the Conference Report, my Administration will interpret section 1024 as granting the Secretary of Defense broad discretion to determine what detainee status determinations in Afghanistan are subject to the requirements of this section." [my emphasis]


Section 1024, remember, requires the Defense Department to actually establish the provisions for status reviews that Obama has promised but not entirely delivered.

    "SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.

    "(a) IN GENERAL. -- Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) for purposes of section 1021.

    "(b) ELEMENTS OF PROCEDURES. -- The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:

    "(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.

    "(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.

    "(c) APPLICABILITY. -- The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court."

As I’ve noted, Lindsey Graham (and other bill supporters, both the right and left of Lindsey) repeatedly insisted on this review provision.  Lindsey promised every detainee would get real review of his status.

    "I want to be able to tell anybody who is interested that no person in an American prison–civilian or military -- held as a suspected member of al-Qaida will be held without independent judicial review.  We are not allowing the executive branch to make that decision unchecked.  For the first time in the history of American warfare, every American combatant held by the executive branch will have their day in Federal court, and the government has to prove by a preponderance of the evidence you are in fact part of the enemy force." [my emphasis]

And yet, in spite of the fact that Section 1024 includes no exception for those detained at Bagram, Obama just invented such an exception.

Section 1024 was one of the few good parts of the detainee provisions in this bill, because it would have finally expanded the due process available to the thousands of detainees who are hidden away at Bagram now with no meaningful review.

But Obama just made that good part disappear.

Update:  I’m still trying to figure out where Obama gets the Congressional intent to let the Defense Secretary pick and choose which detainees 1024 applies to. The managers’ statement says this about 1024:

    "The Senate amendment contained a provision (sec. 1036) that would require the Secretary of Defense to establish procedures for determining the status of persons captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40), including access to a military judge and a military lawyer for an enemy belligerent who will be held in long-term detention.

    "The House bill contained no similar provision.

    "The House recedes with an amendment clarifying that the Secretary of Defense is not required to apply the procedures for long-term detention in the case of a person for whom habeas corpus review is available in federal court.

    "Because this provision is prospective, the Secretary of Defense is authorized to determine the extent, if any, to which such procedures will be applied to detainees for whom status determinations have already been made prior to the date of the enactment of this Act.

    "The conferees expect that the procedures issued by the Secretary of Defense will define what constitutes “long-term” detention for the purposes of subsection (b).  The conferees understand that under current Department of Defense practice in Afghanistan, a detainee goes before a Detention Review Board for a status determination 60 days after capture, and again 6 months after that.  The Department of Defense has considered extending the period of time before a second review is required.  The conferees expect that the procedures required by subsection (b) would not be triggered by the first review, but could be triggered by the second review, in the discretion of the Secretary." [my emphasis]

This seems to be saying two things. First, DOD doesn’t have to go back and grant everyone they’ve given the inadequate review process currently in place a new review. The 3,000 detainees already in Bagram are just SOL.

In addition, this says DOD gets to decide how long new detainees will have to wait before they get a status review with an actual lawyer -- and Congress is perfectly happy making them wait over six months before that time.

Obama seems to have taken that language and pushed it further still:  stating that DOD will get broad discretion to decide which reviews will carry the requirement of a judge and a lawyer.

It sort of makes you wonder why the Obama Administration wants these men to be held for over six months with no meaningful review?

3.

BAGRAM: THE OTHER GUANTANAMO?

By Seth Doane and Phil Hirschkorn

CBS Evening News with Scott Pelley
November 13, 2011

http://www.cbsnews.com/8301-18563_162-57323856/bagram-the-other-guantanamo/

KABUL, Afghanistan -- The former prisoner of the American military in his native Afghanistan entered the office leaning on a crutch.  He said he had trouble walking after spending a year confined to a 35-square-foot jail cell at Bagram Air Base in Afghanistan, about an hour's drive north of the capital, Kabul.

He agreed to speak with us only if we kept his identity hidden.  We agreed to call him just "Mohammed."

"Our cells were like cages," Mohammed spoke in Dari through a translator.  "We couldn't see anything outside."

The cage-like cells for some Bagram detainees were part of a $60 million renovation in 2009.  Mohammed, who was detained that June, believes disgruntled neighbors tipped U.S. troops about him following a land dispute.  His family did not learn for six months why he had disappeared.

"Somebody had reported that I was helping the Taliban, which would be the last thing in the world I would do," Mohammed said.  "I build this country.  What Taliban are doing is destroying this country."

The Taliban is the militant Islamic group allied with al Qaeda that ran Afghanistan from 1996 through 2001, until it was toppled by the U.S. invasion.

Mohammed, a father of 10 children, said he is a trained engineer and educator who teaches girls.  He said he would never support the Taliban, which was infamous for its oppression of women.

Mohammed said he never saw any evidence against him and did he not get an attorney.  Instead, a U.S. military officer was appointed to represent him at status review hearings.

"I was innocent.  I hadn't done anything wrong," Mohammed said.  He was never physically mistreated, but he was woken up at all hours to be interrogated, he said.

Today, there are more than 3,000 detainees at Bagram, or five times the number (around 600) when President Barack Obama took office in January 2009.  There are currently 18 times as many detainees at Bagram than at the U.S. military prison at the Guantanamo Bay, Cuba, naval base, whose prisoner population has dwindled from a peak of 780 to 170.

While Guantanamo has been the subject of legal wrangling and international controversy since the U.S. started sending terrorism suspects there in 2002, the explosive growth of the detainee population at Bagram has largely escaped international or domestic scrutiny.

When CBS NEWS asked to visit Bagram three months ago, the U.S. military first approved our visit, and then canceled it.  Our request to interview any U.S. military official in Afghanistan or at the Pentagon about detainee procedures was rejected.

Neither William Lietzau, the Deputy Assistant Secretary of Defense for Detainee Affairs, nor Brigadier General Mark Martins, who oversaw detainee affairs in Afghanistan as the first commander of Joint Task Force 435, were available for an interview.  Gen. Martins is now in charge of prosecutions at Guantanamo.

Earlier this year, Daphne Eviatar, an attorney for Human Rights First, interviewed nearly 20 former detainees in Afghanistan and was permitted to observe several detainee hearings at Bagram.

"It's worse than Guantanamo," Eviatar said in an interview, "because there are fewer rights."

Eviatar's report, "Detained and Denied in Afghanistan: How To Make U.S. Detention Comply With the Law," documented stories of detainees held from seven months to seven years.

"There was no evidence presented," she said, "there was no questioning of the government's evidence, whether this person had done anything wrong, whether he deserved to be in prison.  So that's a real problem -- you have a complete lack of due process."

Unlike Guantanamo, the Department of Defense won't release the names of its Bagram detainees or its reasons for holding them indefinitely.  Eviatar said Mohammed's story is typical.

When the ACLU sued the government two years ago for greater disclosure of Bagram prisoner names, citizenship, place of capture, and length of detention, DOD fought the suit and replied that even the criteria for detaining Afghans an "enduring security threat" is a state secret.

"We're not going to win this war by making enemies of the local population, and unfortunately sweeping people up and putting them in prison without a fair hearing makes enemies of the local population," Eviatar said.  "And the problem with holding thousands of people, a large number of whom probably do not pose a danger, is that you create tremendous resentment among not only those people but their families, their extended families, their villages, the families they left behind who now don't have a bread winner."

The procedures for handling detainees at Guantanamo have evolved over a decade after extensive Supreme Court and Congressional review that has yet to be applied to Bagram.

The first, revamped "military commission" of an accused Al Qaeda terrorist began at Guantanamo this past week with the arraignment of Abd al-Rahim al-Nashiri, a Saudi accused of leading the October 2000 raft bomb attack on the U.S.S. Cole in Yemen, which killed 17 American sailors.

Al-Nashiri faces the death penalty when his commission resumes next November, with commissions for five Guantanamo prisoners accused of direct roles in the September 11th conspiracy to follow.  Al-Nashiri's arraignment was open to the news media.

"The due process we are giving in Afghanistan is consistent with law of war due process," said U.S. Senator Lindsey Graham, a South Carolina Republican who sits on the Armed Services Committee.

Graham said in an interview he is satisfied with procedures that require every Bagram detainee to appear before a three officer panel every six months.  An Air Force JAG and active reservist, Graham has sat on review boards during visits to Bagram.

"We're fighting people who are trying to topple the Afghan government and kill American forces.  They're not common criminals; they're treated as an insurgent under the law of war," Graham said.

"The additional surge forces are taking the fight to the enemy, so captures are way up," Graham continued.  "The more the Afghan people think we're winning and trust us, the more people we're going to capture.  So the good news for our troops is that we got more people off the battlefield that were shooting at them last year."

A large number of detainees remain incarcerated simply because the war is not over, Graham said, adding that the goal is to transfer prisoners to Afghan control, eventually.

"Here's the dilemma for U.S. forces:  you capture these people in the battlefield in a firefight.  The local community tells you, 'this is the bad guy,' Graham said.  "We're not going to turn him back over to an Afghan legal system that is full of corruption and doesn't have capacity."

Graham supports the Obama administration's plans to expand Bagram prison, which the military now prefers to call the prison the Detention Facility in Parwan (DFIP), referring to the Afghan province where it resides.

DOD is now reviewing bids from contractors to expand the facility to house up to 5,500 detainees.  The project is expected to cost another $25 to $100 million when it is completed by the end of 2012.

Mohammed said he does not doubt there are true insurgents held at Bagram/DFIP, but he believes many men are unjustly held.  His once-positive view of the U.S. has changed.

"When I think of spending more than a year without any crime, that not only affected me personally, it affected my family, it affected my life, it affected my work," Mohammed said.  "That makes us angry."

Editor's note 11/15/11: An earlier version of this post misstated the title of Brigadier General Mark Martins as "the commanding officer at Bagram until this fall." It has been corrected to read, "who oversaw detainee affairs in Afghanistan as the first commander of Joint Task force 435."

 

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